Bouffard 1

Emory Bouffard

Instructor Oberg

English A4

7 February 2019

What Counts as a “Cruel and Unusual Punishment”

The Eighth Amendment of the United States Constitution was ratified in 1791, as were

all of the first ten Amendments (aka the Bill of Rights); but something about the Eighth

Amendment that strikes me as strange is its vague use of language. It states that “​excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Stating that excessive bail and fines shall not be inflicted is not really subjective, and there isn’t

much to debate. The thing that strikes me as very subjective is the use of the term “cruel and

unusual.”

The founding fathers essentially added an imaginary footnote where the person (or

persons) interpreting the Constitution would have to ask questions like “What is cruel?”, “What

is unusual?”, “What if it’s necessary?”, “does this apply to non-US citizens involved in foreign

affairs?”. The definition of “cruel and unusual” is “​a penalty that is either barbaric or far too

severe for the crime committed,” yet one could argue that in many instances the government was

far too harsh in their punishments, or refrained from making a cruel and unusual practice illegal.

The instances that I’ll be looking at where the definition of “cruel and unusual” is blurred is

when it is concerning:

ⅰ. Use of torture in Guantanamo Bay Naval Base

ⅱ. Mistreatment of incarcerated women​7

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ⅲ. Use of conversion therapy for minors

Use of Torture in Guantanamo Bay Naval Base

Before I started this search, I knew very little about the Eighth Amendment. In fact, I

didn’t know what the Eighth Amendment was. I just knew that there was an Amendment in the

Constitution that states that cruel and unusual punishment is unconstitutional and therefore

illegal. But as I researched it more, I found many cases that seemed to blatantly go against what

the Eighth Amendment states. I already knew that gay conversion therapy for minors is still legal

in some states, and I already knew that states can be known to treat the homeless population

horribly. It seems to me that there are multiple standards for when the label “cruel and unusual”

applies. All I needed to do to find these examples was think back on all the times I had looked at

a news article that involved cruel and unusual behavior from the government. Off the top of my

head I could think of five times I had seen this, three of which I decided to research; I did this by

looking into cases where the court held different standards for what the Eighth Amendment

means, and exceptions for what would be seen as unconstitutional if in other circumstances.

I started this search by listening to a podcast called “More Perfect” on an episode titled

“Cruel and Unusual.” The episode concerned the subject of the death penalty, and how many

have argued that it is a form of cruel and unusual punishment. What struck me as interesting was

that the death penalty was illegal after a case in 1972 (Furman v. Georgia) where it ruled that it

went against the Eighth Amendment. This was confusing to me because I had always pictured

rulings in the supreme court as absolute, but in 1976 (Gregg v. Georgia) the Supreme court ruled

that the death penalty could be used again. So, the Eighth Amendment was interpreted differently

in each case. That’s where I asked the question “what is cruel and unusual in the eyes of the
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law?”. After I researched the death penalty, I looked into the use of torture in Guantanamo Bay

Naval Base. How is torture considered legal in the eyes of the law?

In the case of Guantanamo bay, it has been brought up in legal cases multiple times, and

the use of torture has been expostulated by many, time and time again. After September 11th,

2001, in the district court of Washington DC, it was ruled that the government could “use all

necessary and appropriate force against those nations, organizations, or persons [who were

involved in planning any terrorist attacks or planned any attacks]”. In this case, cruel and unusual

punishment was not looked at, the Eighth Amendment wasn’t mentioned at any point while

ruling that the government has the power to do what was necessary with prisoners contained in

Guantanamo Bay Naval Base.

Exceptions​ to just hearings in court: The Suspension Clause of the United States Constitution.

The Suspension Clause uses Habeas Corpus which states that “The privilege of the writ of

habeas corpus​ shall not be suspended, unless when in cases of rebellion or invasion the public

safety may require it." “Habeas corpus”directly translates to “you have a body.” In law, it means

that all people must have the opportunity to appear in court and a chance to have their case

heard; in the clause, when it’s stated that “the public safety may require it,” this is when

Guantanamo Bay Naval Base has a loophole, which allows prisoners to be held (and tortured)

without even having their case being heard in court.

Main Point: ​The Eighth Amendment shall be followed unless the Supreme Court rules that the

government can “use all necessary and appropriate force against those nations, organizations, or

persons [who were involved in planning any terrorist attacks or planned any attacks].” That

DOES include torture and because of the Suspension Clause of the United States Constitution,
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the person who may undergo torture also doesn’t need to appear in court to plead their case

beforehand because of the exception in the the Suspension Clause of the United States

Constitution.

Mistreatment of Incarcerated Women

After researching Guantanamo Bay, a more well-known example of a violation of the

United States Constitution, I searched for a lesser-known example. After reading an article about

the treatment of women in prison, specifically during labor, I decided to look deeper into the

other instances where women in prison are treated horribly. I am well aware of the fact that many

prison guards are male (the majority) and this reflects on the number of sexual assaults take place

in the prison system, as well as the treatment of women who give birth while incarcerated. And

overwhelming majority of sexual assaults are against females and by males, and the cases in

which the treatment of incarcerated women in labor has been debated, the defendant who is

responsible for the treatment is male.

In six states in the United States (Utah, Nebraska, Kansas, Indiana, Georgia, and South

Carolina), there are no policies saying that it is unconstitutional to shackle women during labor.

There are many issues with this, including the fact that facilities for women’s mental health,

hospitals, and other institutions made to help women, have banned the use of shackling during

childbirth as it “can lead to bruising as a result of leg and abdomen restraints[and]...also cause

severe cuts on women’s ankles because of the strains associated with childbirth”. According to

the ACLU, it is “a violation of domestic constitutional law” and “a violation of... prisoners’

Eighth Amendment right to be free from cruel and unusual punishment.”

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While it seems like it has been agreed upon that it is in violation of the person’s

constitutional rights to shackle during labor, it has not been ended. There is a United Nations

policy against shackling pregnant prisoners, and there are many documents stating that it is

strongly disadvised that the shackling of pregnant prisoners be practiced yet there is a loophole

that many correctional facilities take advantage of, therefore allowing them to continue this

practice.

Many news articles in the year 2009 stated that the case of ​Nelson v. Norris o​ r ​Nelson v.

Correctional Medical Services​ was the end of the practice, because the case concerned a female

prisoner being shackled during labor. But this was a case concerning a ​single ​female, not ​all

females. The same assumption came from the case of ​Estelle v. Gamble​, which states that

“​either interference with care or infliction of "unnecessary suffering" establishes deliberate

indifference in medical care cases in violation of the Eighth Amendment.” It isn’t unreasonable

to assume that the term “unnecessary suffering” would be an all-encompassing term, including

the suffering of pregnant women, women in labor, or women after labor. It does not.

Exception: ​The practice of shackling women who are pregnant, in labor, or post-labor, is

allowed if prison staff has “reasonable grounds to believe the offender presents an immediate,

serious threat of hurting herself, staff or others” or “an immediate, credible ​risk of escape,” and

that the prison guard must “recognize the risk” for it to be deemed unconstitutional. This is a

very big exception, as it is easily argued in court that a prison official has “reasonable grounds”

to believe something and if they don’t “recognize the risk” then there is no charge against the

official.
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Main Point:​ There are exceptions to following the Eighth Amendment in this case, as it has

been deemed unconstitutional by multiple cases, laws and codes; yet in the court of law there are

many ways that it can be dismissed as the language used in the laws gives a loophole to cases

that are obviously a violation of the person’s constitutional rights.

Use of Conversion Therapy for Minors

When I was doing my search I wanted to be able to speak with a professional on some

subject, that's one of the reasons I did three different subjects on the Eighth Amendment. I

recently attended an event called QTalks that concerned the issue of gay conversion therapy,

where the speakers included survivors of gay conversion therapy as well as the founder of an

organization called Family Acceptance Project; the Family Acceptance Project is an organization

that provides resources for families who have learned that their child is lesbian, gay, bisexual or

transgender, creating a healthier, safer, and more accepting environment (which also involves

avoidance of gay conversion therapy by all means). The speakers included Garrard Conley, the

author of a book called ​Boy Erased​, which is a first person account of how gay conversion

therapy works, the effects it can have on a person’s psyche, and how it is less “therapy” and

more of a punishment of a person's identity.

Gay conversion therapy can easily be classified as cruel and unusual punishment, as it is

“barbaric” or “exceedingly brutal.” The statistics of attempted suicide, high levels of depression,

and substance abuse (LGBTQ youth is eight times more lokely to attempt suicide, six times as

likely to report high levels of depression, and three times more likely to engage in substance

abuse). Thankfully, 15 states and D.C all have laws banning the use of conversion therapy for
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minors, but the real question is, why is is still not entirely illegal as it is entirely an infringement

upon their constitutional rights? The entire point of gay conversion therapy is to implant the idea

that all homosexual activity is a sin, so much to the point where the “patient” will think of

themself as “dirty” and “unworthy.” In the book ​Boy Erased,​ Conley speaks about a case in the

“Love in Action” gay conversion camp, the man in charge, John Smid, tells a young man that it

would be “better to kill [himself] than the be gay.” It’s tactics like this that shows the inhumane

treatment of those going through gay conversion therapy and the breaking down of self esteem

until the “patient” is nothing more than a shell.

Main Point: ​Gay conversion therapy for minors, also known as Sexual Orientation Change

Efforts (SOCE), is illegal in 15 states and D.C. The California bill SB-1172 states that “The

potential risks of reparative therapy are great, including depression, anxiety and self-destructive

behavior, since therapist alignment with societal prejudices against homosexuality may reinforce

self-hatred already experienced by the patient”. Unfortunately, this is one state, and it is a

state-decided issue, no matter how many news articles and cases simply ​refer​ to the practice as a

violation of Eighth Amendment rights.

Exceptions: ​There remains a loophole in the bill SB-1172, as there does in many bills stating the

same thing. In the case of Pickup v. Brown 2013, this was stated concerning the ineffectiveness

of the bill:

SB 1172 does just one thing: it requires licensed mental health providers in California

who wish to engage in "practices... that seek to change a [minor's] sexual orientation"

either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB
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1172 regulates the provision of mental treatment, but leaves mental health providers free

to discuss or recommend treatment and to express their views on any topic. (2013)

This is entirely accurate. While there are some advantages to bills that limit the practice of gay

conversion therapy for minors, oftentimes there remains a loophole in which many licensed

practitioners are able to “practice” on their minor patients with a parent’s permission.

One more advantage that many “sexual orientation change efforts” organizations have is

their use of “non-aversive” treatments. “Non-aversive” basically means “an attempt is made to

understand what is leading the person to do the harmful or unpleasant thing.” Unfortunately in

the case of SOCE (sexual orientation change efforts), if treatment doesn’t involve induced

nausea, vomiting, or paralysis; providing electric shocks; or having an individual snap an elastic

band around the wrist when aroused by same-sex erotic images or thoughts, the treatments will

be considered non-aversive treatments, therefore not “cruel” or “barbaric.”

Conclusions

This research paper was definitely a very involved process, one that took far more

analysis than I originally intended. I learned a lot in the process, and there are many subjects that

I have far more more knowledge on. Starting my project, I was hoping this paper would be

relatively short and straightforward. It turns out all of the parts of my question had to be

researched extensively so I was capable of understanding it.

The subject of Guantanamo Bay Naval Base and use of torture is already a controversial

topic, so I had a significant amount of resources that I had to comb through in order to find
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reliable sources, and make sure it was used in a relevant way. Citing all of my sources also

became a significant part of my research, one that took a lot of time and energy.

If I were to start over, I think I would’ve chosen a less broad subject. I’m not sure exactly

how long this paper was supposed to be, but I know that mine was a lengthier one. I had the

choice of shortening all of the sections into a one-page-max sort of thing, which probably

would’ve saved time and paper. After seeing the speaker at QTalks, I realized that the subjects I

chose are not easy to talk about, but they are all things that I think are important to know about.

Sure, people are somewhat aware of Guantanamo Bay, but what about the unconstitutional

practices going on in prisons?; and ​what about the 60 % of LGBT population that live in states

with no laws banning conversion therapy for minors? These are all things that have enough

information on, and have enough injustices trailing behind them, that they ​need​ more than a

one-page-max rundown. Whenever I dove deeper into a subject, the more I wanted to talk about

it. So I may regret the broadness of my subject, and I could’ve chosen a simpler one, but I do ​not

regret the length it became, or the time dedicated towards it.

The best part about this project was reading things to the point that I could discuss it with

other people and understand what I was talking about. It’s a good feeling knowing that I have

broadened my knowledge on not one but ​three​ subjects. I enjoyed seeing the speakers for Gay

Conversion Therapy and putting the time into reading a book about the subject. I also liked

finding my own topic to research, one that I knew I’d be passionate enough to read about and dig

for old news articles on it. If I was assigned a paper on any other subject I certainly wouldn’t

have enjoyed the process as much as I did with this one.

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The worst part about the process was not having a reference point. I shouldn’t say it was

the ​worst b​ ut it definitely made it more difficult. Usually I would use an example paper as an

outline for what I need to do, but with nothing to use, it became a more involved process where I

needed to create my own outline; it was scary having the freedom to go off on tangents in my

paper, then having to go back and delete the unnecessary parts. I’m not sure if it’s a good thing

that I had that freedom because I’m not sure if it improved my writing or made it worse.

If I were to do this all over again, I think I would use a different subject(s). This one

needed far more research than I originally planned, not that that’s a bad thing. I would narrow it

down to “what counts as cruel and unusual punishment?” and then use a single example to point

out how it doesn’t follow the Eighth Amendment. I originally had five different examples. I was

completely unaware of how involved the process would become. It became clear to me that it

would take longer than expected as I looked deeper and deeper into news articles, court

documents, quotes, organizations, and interactions with specialists on the subject. I am glad that I

researched as much as I did. I would put my level of understanding at a 4.5, where it was

originally a 2.
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Citations

American Civil Liberties Union. ACLU briefing paper: the shackling of pregnant women & girls in
U.S prisons, jails & youth detention centers.

B​eck AJ, Berzofsky M, Caspar R, Krebs C. Sexual victimization in prisons and jails reported by
inmates, 2011-12. Washington, DC: Bureau of Justice Statistics, 2013.

BraithWaite, Ronald L, et al. “Health Disparities and Incarcerated Women: A Population Ignored.”
Cross-Sectional and Longitudinal Effects of Racism on Mental Health Among Residents of Black
Neighborhoods in New York City | AJPH | Vol. 105 Issue 4,​ American Journal of Public Health
(AJPH) Publications, 11 Oct. 2001, ajph.aphapublications.org/doi/10.2105/AJPH.2005.065375.
Detailed reflection on the mistreatment of female prisoners in America's federal prison system

Busby, John C. “Cruel and Unusual Punishment.” ​LII / Legal Information Institute,​ Legal Information
Institute, 17 Oct. 2018, www.law.cornell.edu/wex/cruel_and_unusual_punishment. Definition of
cruel and unusual as defined in different cases

Id.; CAL. PENAL CODE § 5007.7

Coffman-Grey, Neil. “Conversion Therapy Must Be Banned.” ​The Santa Barbara Independent - News​,
17 May 2018, www.independent.com/news/2018/may/17/conversion-therapy-must-be-banned/.
Article referencing gay conversion therapy (specifically for minors) as a "cruel and unusual
punishment."

“The Complete Guide to MLA & Citations.” ​Citation Machine: Modern Language Association Eighth
Edition Format Citation Generator for Journal Article,​
www.citationmachine.net/mla/cite-a-website. This is added solely as a joke. Citing sources was a
huge step in the process, mostly so I was able to obtain sufficient information and keep track of
all of the sources I used in case I had to refer to them later on.

Conley, Garrard. ​Boy Erased: a Memoir of Identity, Faith, and Family.​ William Collins, 2018.
Firsthand account of the effects of gay conversion therapy or Sexual Orientation Change Effort
(SOCE).

Doetzer, Geraldine. Hard Labor: The Legal Implications of Shackling Female Inmates During Pregnancy
and Childbirth, 14 Wm. & Mary J. Women & L. 363 (2008)

​“Equality Utah - QTalks.” ​Equality Utah - Home,​ www.equalityutah.org/equality-events/q-talks2017.

Event featuring speakers who lived through gay conversion therapy

“Federal Bureau of Prisons.” ​BOP Statistics: Inmate Offenses​, 24 Nov. 2018,

www.bop.gov/about/statistics/statistics_staff_gender.jsp. 72.7 % of prison staff are male, while
only 27.3% are female.

​
Haltiwanger, John. “Torture Used by U.S. Military at Guantanamo Bay despite Being Banned, UN Says.”
Newsweek​, 13 Dec. 2017,
www.newsweek.com/torture-used-us-military-guantanamo-bay-despite-being-banned-un-says-74
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7373. News on the continuation of torture being used at Guantanamo Bay Naval Base with no
interference from the United States government

Human Rights Campaign. “The Lies and Dangers of ‘Conversion Therapy.’” ​Human Rights Campaign​,
www.hrc.org/resources/the-lies-and-dangers-of-reparative-therapy. Statistics reflecting
consequences of gay conversion therapy

In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 - Dist. Court, Dist. of Columbia 2005

Kasdan, Diana. “Long Past Due: Constitution Protects Women in Prison from Unsafe Shackling During
Childbirth.” ​Rewire.News,​ Rewire.News, 5 Oct. 2009,
rewire.news/article/2009/10/06/long-past-due-constitution-protects-women-prison-unsafe-shackli
ng-durin
g-childbirth/. Article concerning the Nelson v. Norris case that supposedly ended all practices of
shackling of female prisoners who are pregnant, in labor, or post labor.

“Law Bans Conversion Therapy for Minors .” ​Movement Advancement Project | Foster and Adoption
Laws,​ www.lgbtmap.org/equality-maps/conversion_therapy.

​Min, Lilian. “These States Still Allow Female Inmates to Be Shackled During Childbirth.” ​The Cut,​
The Cut, 28 Mar. 2018,
www.thecut.com/2018/03/these-states-still-allow-shackling-inmates-during-childbirth.html. 6
states still have no policies banning the practice of shackling women while pregnant, in labor, or
post-labor

Nelson v. Correctional Medical Services, 583 F. 3d 522 - Court of Appeals, Eighth Circuit 2009

Pickup v. Brown, 740 F. 3d 1208 - Court of Appeals, 9th Circuit 2013

Steyn, J. (2004). Guantanamo Bay: The Legal Black Hole1. ​International and Comparative Law
Quarterly,​ ​53(​ 1), 1-15. doi:10.1093/iclq/53.1.1

“Text.” ​Bill Text - SB-1172 Sexual Orientation Change Efforts.,​

leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201120120SB1172.

Women Prisoners v. District of Columbia, 877 F. Supp. 634 - Dist. Court, Dist. of Columbia 1994