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April 7, 2017

"Who are the Punishers?"

The title of this post is the title of this intriguing new paper authored by Raff Donelson now available via SSRN. Here is the abstract:

The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them.  This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments.  The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials.  Under the framework presented in this Article, the class of potential punishers should be much wider.  Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.

April 7, 2017 at 08:49 AM | Permalink


This is an obvious attack on the family.

But, the author forgot somebody. Because punishment is the sole tool of the law, all lawyers should be listed, even transactional lawyers. All money comes from human labor. Therefore, the taking of money is enslavement, as a form of punishment, enforced at the point of a gun.

Dignitary and emotional distress damages should be imposed on all lawyers, when their carelessness has hurt a victim of the profession. "All lawyers" includes judges, legislators, and policy makers in the Executive, including victims of unjustified wars. To deter.

Posted by: David Behar | Apr 7, 2017 9:58:52 AM

A 1970s case regarding corporal punishment rejected the application but it was closely divided with conservative leaning White in the dissent. The overlap is seen in Fourth Amendment cases, where students might have lesser protection, but have some.

I did not read the paper -- so many papers cited online -- but can see some connection even to parents, since the government does get involved here in some respects. Again, it might not be current doctrine (see, e.g., DeShaney) but special circumstances such as those under protection orders can be imagined.

And, if the government to some degree regulates parental action here, there can be some governmental action for 8A purposes. More of reach though than schools and other related authorities where punishment is inflicted by government agents.

Posted by: Joe | Apr 7, 2017 3:54:41 PM

Joe. The alternative to cheap, frequent and effective corporal punishment? Staffing.

I do not speak the language of the weasel, but I do recognize the seeking of the rent. Imagine the government unemployment if the lash were to return. I have proposed testing this proposition, first of all, on appellate judges. To deter.

Posted by: David Behar | Apr 7, 2017 4:17:05 PM

I do not see any way that 'regulating' parental action (most likely in the form of criminal law limits on how far parents can go) somehow turns parents into government actors for 8A purposes.

Posted by: Soronel Haetir | Apr 7, 2017 5:11:22 PM

Evidently, Assad gassing his population was not cruel and unusual punishment under our law because no one was convicted first. It was merely mean.

Posted by: George | Apr 8, 2017 11:55:57 AM

George, something can be unconstitutional even if it is not a violation of the Eighth Amendment. If the gassing was meant to be punishment, it would be a violation of due process of law [no process first & as matter of substantive liberty not be treated in a way that shocks the conscience}, for example.

do not see any way that 'regulating' parental action (most likely in the form of criminal law limits on how far parents can go) somehow turns parents into government actors for 8A purposes.

My initial thought here would be an example such as a victim of child abuse where protection services puts the parent under special oversight. The government could have some responsibility here if they knowingly allow the parent to cruelly beat the child for doing something wrong. The parents need not be the actors constitutionally liable. [They could be liable under statutory law.]

Looking at the article. An easier case here would be let's say foster parents. They are government actors in some sense -- they are not the natural parents, but assigned (often for payment) by the government. The article argues that it is possible to see even natural parents as a sort of government actor. The parent is by law required to care for a child and in a reasonable way. This in a sense makes the parent a government actor in at least a limited way.

I don't know if we have to go that route, especially since it might have problematic implications. Think there is a good case a child at least has a general right by law of protection.* At some point, the government can provide so little protection that the right is violated. This is especially the case if the government protects some children in such cases. In effect, seems more like a matter of due process of law -- the child has a minimum right to "liberty" and even "life" (if the parent kills the child) and it was deprived here.


* For those inclined to go that route, there is some historical evidence of original understanding regarding such a basic obligation of the government.

Posted by: Joe | Apr 8, 2017 12:28:27 PM

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