The 8th Amendment Meets the 5th Amendment

10/07/2011 12:28 pm 12:28:58 | Updated Dec 05, 2011

"Why can't we just take them out and shoot 'em? We know they're guilty."

Because the "guilt of the German leaders should be carefully documented." Because "our system is not lynch law. We will dispense punishment as the evidence demands. "

Joe Nocera in the New York Times quoting Harold Burson's scripts from the Nuremberg trials.

It happened because of prison overcrowding. Prison overcrowding creates unconstitutional conditions for inmates. Anything that can be done to relieve those unconstitutional conditions is welcome.

For those who have not paid much attention to prison overcrowding, the U.S. Supreme Court case of Brown v. Plata is an eye opener. Although it affects only the California prison system, it focuses attention on overcrowded conditions in state and federal prisons alike. Writing for the majority in that case, Justice Anthony M. Kennedy said that California prisons were designed to house a population of 80,000 but that the population was close to double that. "Prisoners" he said, "are crammed into spaces neither designed nor intended to house inmates... [S]uicidal inmates may be held for prolonged periods in telephone booth sized cages without toilets " and the lack of care results in "needless suffering and death." Stating the often overlooked but obvious truism, Justice Kennedy says that even though incarcerated, "Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment." He concludes his opinion saying that "The medical and mental health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment."

Overcrowding is a problem in federal prisons as well. According to The Crime Report, when the U.S. Attorney for Atlanta, Sally Quillian Yates, was testifying before the U.S. Sentencing Commission in Washington in late May 2010, she said that federal facilities are currently operating at 34 percent above capacity. In her testimony she said that the overcrowding will have "real and detrimental consequences for the safety of prisoners." Her concerns are echoed by Bryan Lowry, president of the American Federation of Government Employees' Council of Prison Locals. Testifying before a House Appropriations subcommittee in 2010 he pointed out to the committee that between June 2008 and the time of his testimony in March 2010, there were 340 inmate-on-staff assaults in federal prisons nationwide. He told the committee that "These aggressive acts by inmates against staff illustrate a common reality facing staff daily at their workplace. Federal prisons have continued to be increasingly dangerous places to work, primarily because of serious correctional worker understaffing and prison inmate overcrowding problems." And that all serves to highlight what we learned from the Platt case. Overcrowding violates the prohibition against cruel and unusual punishment that is proscribed by the Eighth Amendment to the United States Constitution. It also helps explain the death of Anwar al-Awlaki, the United States citizen who was summarily executed by the United States Government because he had been designated a terrorist.

Mr. Awlaki was killed September 30 in Yemen by a missile fired from a United States operated drone aircraft. Mr. Awlaki spent the first seven years of his life in Las Cruces New Mexico. His family moved to Yemen where he lived until he was 19 when he returned to the United States to attend college. Following his graduation he became an Imam at assorted mosques in the United States. Eventually he became a fiery preacher advocating the mass murder of American citizens.

In early 2010 the U.S. government said his actions made him a justifiable target for capture or death. His father objected to the fact that his son had been made death penalty eligible without having been tried or convicted of any offense. Aided by the ACLU he went to court alleging that the actions of the government in authorizing his son's summary execution violated the due process clause of the U.S. Constitution. The judge threw out the lawsuit although he said that the actions of the government raised "stark, and perplexing, questions" one of which was whether the president could "order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based [on] the mere assertion that he is a dangerous member of a terrorist organization." The question has now been answered. It can, it did and Mr. Awlaki is now dead.

In making its decision to kill Mr. Awlaki, it is clear that the Obama administration was addressing two competing interests. If Mr. Awlaki was captured and sent to prison his 5th Amendment due process rights would be preserved but the other prisoners' 8th Amendment rights would be impinged by increasing the overcrowding. By killing him the administration was violating the constitutional rights of only one person instead of many. Examined in that light it is obvious that the government made the right decision. It should also cause the rest of the country to wonder how far the administration is willing to go to avoid further prison overcrowding. Time will tell.

Christopher Brauchli can be emailed at For political commentary see his web page at