united-states constitutional-law us-constitution eighth-amendment
Does torture violate the US Federal Constitution, and if so under which theory?
<p>We all know about the <a href="https://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisoner_abuse" rel="nofollow noreferrer">tortures that took place at Abu Ghraib prison</a>.</p>
<p>However, Justice Scalia <a href="https://www.youtube.com/watch?v=T72vgAEX66M" rel="nofollow noreferrer">explains to us</a> that torture does not offend the US Federal Constitution.</p>
<p>As Justice Scalia explained to us, the <a href="https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Eighth Amendment</a> says</p>
<blockquote>
<p>cruel and unusual <em>punishments</em> [shall not be] inflicted</p>
</blockquote>
<p>and torture is not punishment. In fact, as Justice Scalia explains to us, one is <em>punished</em> for something he/she has committed in the past. For example: &quot;I caught my child smoking, so as a punishment I took away his mobile phone&quot;.</p>
<p>But &quot;torture&quot; <em>is not</em> an infliction of a damage to make the accused pay for something he/she committed in the past, or to elicit someone to refrain from committing that offense again. This is not the purpose of torture. The purpose of torture is to extort information useful for a future criminal investigation.</p>
<p>The explanation that Justice Scalia gave to us is consistent with the defition of punishment (remember, the Eight Amendment prohibits &quot;cruel and unusual <em>punishments</em>&quot;) that <a href="https://en.wikipedia.org/wiki/B._F._Skinner" rel="nofollow noreferrer">BF Skinner</a> gave to us in his <a href="https://en.wikipedia.org/wiki/Behaviorism#Operant_conditioning" rel="nofollow noreferrer">operant conditioning</a> theory:</p>
<blockquote>
<p>Positive punishment: Providing a stimulus that an individual does not
desire to decrease undesired behaviors. For example, a child hates to
do chores. His parents will try to reduce the undesired behavior of
failing a test by applying the undesired stimuli of having him do more
chores around the house.</p>
<p>Negative punishment: Removing a stimulus that an individual desires in
order to decrease undesired behaviors. For example, a child loves
playing video games. His parents will try to reduce the undesired
behavior of failing an exam by removing the desired stimulus of video
games.</p>
</blockquote>
<p>In both cases, the purpose of punishment is &quot;to decrease undesired behaviors&quot;. The purpose of torture is not that (after all, the accused is already into custody, so he cannot committ other undesired behaviors), but to extort information useful for further prosecution or to catch other accomplices. So, also under this theory, torture is not punishment.</p>
<p>Moreover, as <a href="http://Ingraham%20v.%20Wright" rel="nofollow noreferrer">Ingraham v. Wright</a> explains to us, the US Federal Supreme Court has &quot;limited the application of the Eighth Amendment’s “cruel and unusual” language to <strong>criminal</strong> punishment&quot;.</p>
<p>A prisoner who is tortured was not subjected to criminal proceedings (in fact, the torture itself is used to extort information useful for a <em>future</em> criminal proceeding), let alone a criminal punishment.</p>
<ol>
<li><p>Is there some legal theory, or some legal scholar, that has argued that &quot;torture&quot; violates the Eight Amendment to the US Federal Constitution? What would be the argument of such theory or scholar?</p>
</li>
<li><p>Is there any other legal argument that would make torture unconstitutional, on the basis on whatever constitutional provision?</p>
</li>
<li><p>Are there <em>federal</em> laws prohibiting torture?</p>
</li>
</ol>

<p>The <a href="https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Eighth Amendment to the United States Constitution</a> states that &quot;cruel and unusual punishments [shall not be] inflicted.&quot; The general principles that the <a href="https://en.wikipedia.org/wiki/United_States_Supreme_Court" rel="nofollow noreferrer">United States Supreme Court</a> relied on to decide whether or not a particular punishment was cruel and unusual were determined by <a href="https://en.wikipedia.org/wiki/William_J._Brennan" rel="nofollow noreferrer">Justice William Brennan.</a> In <a href="https://en.wikipedia.org/wiki/Furman_v._Georgia" rel="nofollow noreferrer">Furman v. Georgia</a>, <a href="https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_408" rel="nofollow noreferrer">408</a> <a href="https://en.wikipedia.org/wiki/United_States_Reports" rel="nofollow noreferrer">U.S.</a> <a href="https://supreme.justia.com/cases/federal/us/408/238/" rel="nofollow noreferrer">238</a> (1972), Justice Brennan dissenting wrote, &quot;There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'.&quot;</p>
<ol>
<li>The &quot;essential predicate&quot; is &quot;that a punishment must not by its severity be degrading to human dignity&quot;, especially <a href="https://en.wikipedia.org/wiki/Torture" rel="nofollow noreferrer">torture</a>.</li>
</ol>
<p>The Supreme Court has held <strong>torture</strong> to be unconstitutional since its ruling in <a href="https://en.wikipedia.org/wiki/Wilkerson_v._Utah" rel="nofollow noreferrer">Wilkerson v. Utah</a> in 1878. In that case, the justices wondered what part of the Constitution would forbid such a cruel and unusual punishment:</p>
<blockquote>
<p>Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.</p>
</blockquote>
<p>In the 2008 death-penalty case <a href="https://en.wikipedia.org/wiki/Baze_v._Rees" rel="nofollow noreferrer">Baze v. Rees</a>, where <a href="https://en.wikipedia.org/wiki/John_Roberts" rel="nofollow noreferrer">Chief Justice John Roberts</a> wrote that:</p>
<blockquote>
<p>&quot;the Court has held that the Eighth Amendment forbids 'punishments of torture … and all others in the same line of unnecessary cruelty,' such as disembowling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain.&quot;</p>
</blockquote>
<p><strong>18 U.S. Code § 2340A.Torture</strong></p>
<p>(a)<strong>Offense</strong>.—
Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.</p>
<p>(b)<strong>Jurisdiction</strong>.—There is jurisdiction over the activity prohibited in subsection (a) if—
(1)the alleged offender is a national of the United States; or
(2)the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.</p>
<p>(c)<strong>Conspiracy</strong>.—
A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.</p>
<p>Oliver Ravel, former deputy director of the FBI, has stated that force is not effective: &quot;people will even admit they killed their grandmother, just to stop the beatings.&quot; Indeed, the unreliability of forced confessions was one of the principal reasons that U.S. courts originally prohibited their use.</p>

<p>The prisoner <em>is</em>, by the definition you present, being punished. Not for any crime, but for their refusal to speak. But let's assume for the sake of argument that the Eighth Amendment doesn't apply. It would still appear to be unconstitutional.</p>
<p>The Fifth Amendment states:</p>
<blockquote>
<p>No person shall... be deprived of life, liberty, or property, without due process of law</p>
</blockquote>
<p>and the Fourteenth Amendment applies this to the states:</p>
<blockquote>
<p>... nor shall any State deprive any person of life, liberty, or property, without due process of law</p>
</blockquote>
<p>If we assume that the torture is <em>not</em> punishment after the conviction for any crime, but is being used for some other criminal prosecution (not of the person being tortured, of course, since forcing self-incrimination is also banned by the Fifth Amendment) then you run into the problem that the person being tortured is being deprived of liberty <em>without</em> due process.</p>
<p>This is even indicated in a footnote in Ingraham v. Wright:</p>
<blockquote>
<p>... the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. <strong>Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.</strong></p>
</blockquote>
<p>As a backup argument, the Fourth Amendment states:</p>
<blockquote>
<p>The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated</p>
</blockquote>
<p>Torture would be considered an unreasonable search or seizure of a person. It's the go-to in more ordinary police brutality cases. And the Supreme Court has held that the Fourth Amendment can apply to pretrial detention (<a href="https://supreme.justia.com/cases/federal/us/580/14-9496/" rel="nofollow noreferrer">Manuel v. Joliet</a>, 2017) so it's not limited to just the initial seizure of the person.</p>

<p>Two older applicable Supreme Court ruling are <a href="https://supreme.justia.com/cases/federal/us/136/436/" rel="nofollow noreferrer">In re Kemmler</a>, 136 U.S. 436 and <a href="https://supreme.justia.com/cases/federal/us/99/130/" rel="nofollow noreferrer">Wilkerson v. Utah</a>, 99 U.S. 130. The latter states</p>
<blockquote>
<p>Difficulty would attend the effort to define with exactness the extent
of the constitutional provision which provides that cruel and unusual
punishments shall not be inflicted; <em>but it is safe to affirm that
punishments of torture</em>, such as those mentioned by the commentator
referred to, and all others in the same line of unnecessary cruelty,
<em>are forbidden by that amendment to the Constitution</em></p>
</blockquote>
<p>This is cited in Kemmler, which adds that &quot;Punishments are cruel when they involve torture or a lingering death&quot;. That finding is presupposed in <a href="https://supreme.justia.com/cases/federal/us/356/86/" rel="nofollow noreferrer">Trop v. Dulles</a>, 356 U.S. 86 (1958), which extends the boundaries of &quot;cruel and unusual punishment&quot; to encompass use of denationalization as a punishment:</p>
<blockquote>
<p>We believe, as did Chief Judge Clark in the court below, that use of
denationalization as a punishment is barred by the Eighth Amendment.
There may be involved no physical mistreatment, no primitive torture.
There is, instead, the total destruction of the individual's status in
organized society. It is a form of punishment more primitive than
torture, for it destroys for the individual the political existence
that was centuries in the development.</p>
</blockquote>
<p>There does not appear to be any case where torture was proposed as a punishment, where we could inspect the legal arguments that torture is cruel and unusual: that seems to have been legally assumed from the start.</p>

<p>Although torture can be inflicted without it being considered as punishment as the OP suggests; it can also be inflicted as punishment; in these cases, the eighth amendment holds, and which says 'cruel and unusual punishments [shall not be] inflicted'. Then by analogy, we can say, it ought not to be inflicted in cases where torture is being inflicted but is not primarily about any regime of punishment.</p>
