Colin Dayan's essay on the history of the understanding of cruel and unusual punishment was spurred by the Bush administration's push to allow torture of terrorists and the treatment of prisoners at Abu Ghraib.  Her approach is scholarly, but this is not a law journal article.  Dayan is against torture, and she is highly critical of the way that the definition of torture has been narrowed so as to allow degrading treatment of prisoners without it being counted as torture.  There is an introduction by NYU Law Professor Jeremy Waldron, which applauds Dayan's work and the attitude she takes towards torture.

Dayan traces the history of the use of the concept "cruel and unusual" to the seventeenth century and laws governing the treatment of slaves.  Laws in the early eighteen century tried to specify how much people could legally beat their slaves.  Dayan's general argument is that the Bush administration is bringing a similar approach to the treatment of terrorists.  Those wanting to allow severe treatment of prisoners often argue from the vagueness of the phrase "cruel and unusual" to the conclusion that various forms of maltreatment are not prohibited.  This line of argument is especially used to justify non-physical degradation such as humiliation of prisoners.

Another way to allow maltreatment of prisoners is to argue that the bad things that happen to them while incarcerated are not part of their punishment, but are simply accidents.  Recent court rulings have argued that the Eighth Amendment ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" applies to the intended punishment imposed in a sentence, and not to the actual treatment of a prisoner.  There may be other laws that prohibit the maltreatment of prisoners by guards, but since the guards' bad behavior is not part of the prisoner's intended punishment, the maltreatment does not violate the Constitution's prohibition of cruel and unusual punishment.  Dayan rejects this line of reasoning, and argues for a broader interpretation of the Eighth Amendment. 

In the final chapters of this short book (90 small pages of the main text), Dayan focuses on the recent legal history of the interpretation of the prohibition of torture, including recently released memos created by the Office of the Attorney General and reports by Amnesty International regarding the permissible limits of treatment of prisoners.  Dayan is notably critical of John McCain's supposed "torture ban," arguing that it has takes an overly narrow definition of torture.  She approvingly describes the UN Commission on Human Rights 2006 condemnation of the Bush administration's stance towards torture.  She is scathing about the defense of the administration's policy by the US State Department's legal adviser, John B. Bellinger. 

The Story of Cruel & Unusual is forceful in its tone.  It provides a helpful survey of a complicated part of legal history, and presents a clear point of view.  The book pays no attention to the issue of whether torture is effective as an interrogation method at getting information from uncooperative people.  Due to the book's brevity, Dayan does not have space to defend many of her interpretations of major documents and legal cases, so readers are left to investigate the topic further themselves.  The ten pages of notes at the end of the book provide pointers for where to find further information.  

Links:

• Colin Dayan Home Page
• Jeremy Waldron's paper "Torture and Positive Law: Jurisprudence for the White House," Columbia Law Review 2005.  (in Adobe Acrobat)
• Interrogation Documents
• Amnesty International documents on torture in the 'war on terror'
• United Nations Commission on Human Rights: 15 February 2006 Report (in Adobe Acrobat)

© 2007 Christian Perring. All rights reserved.

Christian Perring, Ph.D., is Associate Professor of Philosophy at Dowling College, Long Island. He is also editor of Metapsychology Online Reviews.  His main research is on philosophical issues in medicine, psychiatry and psychology.

Categories: Ethics