Torture as Punishment

In a very, um, tortured exchange on “60 Minutes” with Leslie Stahl, Justice Antonin Scalia argues that being tortured in prison is not a violation of the 8th Amendment’s prohibition against “cruel and unusual punishments” because it’s not punishment.

“To the contrary,” Scalia says. “Has anybody ever referred to torture as punishment? I don’t think so.”

“Well, I think if you are in custody, and you have a policeman who’s taken you into custody…,” Stahl says.

“And you say he’s punishing you?” Scalia asks.

“Sure,” Stahl replies.

“What’s he punishing you for? You punish somebody…,” Scalia says.

“Well because he assumes you, one, either committed a crime…or that you know something that he wants to know,” Stahl says.

“It’s the latter. And when he’s hurting you in order to get information from you…you don’t say he’s punishing you. What’s he punishing you for? He’s trying to extract…,” Scalia says.

Jim Henley replies with a quizzical initialism wherein the last letter stands for a word that’s simultaneously quite commonly used and yet not printable in a family newspaper.

My reading of Scalia, however, is that’s he’s being pedantic rather than obtuse. That is, punishment in the sense of the 8th Amendment is something that has been imposed on you by due process of law by the state. So, deprivation of liberty for a period of time, loss of the right to vote, and so forth are punishment. A prison guard’s beating the hell out of the prisoners out of sadistic cruelty, inmates raping weaker inmates, and so forth is not “punishment” but rather misconduct. Similarly, detainees tortured for intelligence information aren’t being “punished” for any transgression.

That said, state-imposed torture is clearly forbidden by the 8th Amendment. The Supreme Court ruled way back in the 1878 case of Wilkerson v. Utah that,

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 drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.

More generally, the Court has rather consistently held that the clause is a moving target, requiring “civilized treatment,” preservation of “the dignity of man” and that punishment be “exercised within the limits of civilized standards.”

FILED UNDER: Law and the Courts, Supreme Court, Uncategorized, US Constitution, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. C.Wagener says:

    I think Stahl is being obtuse and Scalia is amazed that he has to explain something so bloody obvious.

  2. duckspeaker says:

    Can’t torture as “extracting information” be rephrased as “punishment for not giving up said information?”

    We have a Supreme Court justice that doesn’t feel that torture is cruel/unusual punishment.


  3. Boyd says:

    I came to add my comment, only to find you’d already said it for me, C.

    I’m left to wonder whether Stahl’s obtuseness is a journalistic guise to get Mr. Scalia to further expound on his position, or if she’s just plain obtuse. Both ideas have their merits.

  4. Boyd says:

    After all that, and folks still don’t understand what Scalia is saying.

    Let’s spell it out here: we have no idea from his statements whether he feels that torturing someone to extract information is legal or not. He is merely (and plainly) saying that it’s not unconstitutional under the Eighth Amendment because it’s not punishment.

  5. Michael says:

    Right, if I walk up to you on the street and start beating the hell out of you, it’s not technically a violation of your 8th amendment rights.

    It is, however, still a crime, and I should still go to prison for it. If I am part of an organization that approved of, planned, and ordered the beating, then the entire organization is guilty of that crime and can be placed in prison for it.

    Oh, and if you happen to die from the beating, I and those who ordered it could even be executed.

    So, the real question is, if I were a member of the US government, and they gave me the order, could I legally beat the hell out of you on the streets, without you having any legal recourse after the fact?

  6. James Joyner says:

    So, the real question is, if I were a member of the US government, and they gave me the order, could I legally beat the hell out of you on the streets, without you having any legal recourse after the fact?

    There are probably no circumstances under which you wouldn’t have legal recourse. Even the “enemy combatants” wound up getting a day in court, eventually.

    But it’s not entirely inconceivable that there are circumstances under which an agent of the government could be ordered to assault a citizen and the agent himself would be held immune from prosecution.

  7. ptfe says:

    So far, the only “enemy combatants” to have appeared in court, if I recall correctly, are those who have been charged with a crime; the criminality of their treatment has not yet been litigated (the Hamdi case simply raised the issue of indefinite detention; the Jose Padilla case regarding his treatment is still pending).

    What’s most distressing about this is that Scalia’s argument is entirely fatuous. His intent was not to assert that the 8th Amendment is not what makes torture illegal; his intention was clearly to assert that the 8th Amendment does not prohibit such actions at the behest of the state, even though, as noted, it has been explicitly interpreted to say as much with respect to government treatment of a prisoner. Scalia has made a similar assertion before (click my name) in a blatant attempt to turn the so-called “ticking time-bomb scenario” into the de facto standard by which legality is to be judged. That he seems to feel our world really works like the plot to a lame TV show is rather telling.

    C and Boyd: You’re right that he never states explicitly in the interview that he agrees with torture, but his previous statements and the manner in which he makes this comment show that he’s not simply making a semantic point and subtly saying that torture is illegal in the way that hitting someone in the face is illegal; rather, he’s attempting to defend the act’s legality through purely semantic reasoning. I think Stahl’s “obtuseness” is actually brought on by knowing that Scalia has persistently tried to redefine the Constitution so that the Bush administration is no longer in clear violation of it.

    And, in fact, torture in the context that he cites would be punishment, exactly as duckspeaker notes. It would probably also violate the 5th Amendment right of a person not to incriminate oneself, particularly since the kangaroo justice system the military has set up seems to be willing to accept torture-induced statements as a matter of course.

  8. floyd says:

    You know nothing of Scalia, and it shows.

  9. Magnus says:

    Why the hell aren’t we putting these miserable mass murders in the rack for a stint prior to drawing and quartering them? Seems about right to me.

  10. Anon says:

    The concept of torture and punishment are orthogonal, so it seems to just confuse the issue to try and conflate them.

  11. C.Wagener says:

    That is easily the best use of the word orthogonal I’ve read all day.

  12. Grewgills says:

    The concept of torture and punishment are orthogonal

    They are far from 90o separated definitionally or legally.

    1: the act of punishing
    2 a: suffering, pain, or loss that serves as retribution b: a penalty inflicted on an offender through judicial procedure
    3: severe, rough, or disastrous treatment


    1 a: anguish of body or mind : agony b: something that causes agony or pain
    2: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure
    3: distortion or overrefinement of a meaning or an argument : straining

    Scalia acknowledged that torture when coupled with detention or other punishment is part of that punishment when he said, “Because smacking someone in the face would violate the Eighth Amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society?” It is obvious then that he is speaking of torture for purposes of extracting information. As previously stated, torture in this context is punishment for failure to give that information. He was/is seeking semantic refuge to cover his ideological position and Stahl tried call him on it.