Up until the late 1960s, the courts refused to engage in the practice of determining whether a prison was providing illegal or intolerable conditions for inmates. Ultimately, federal courts found that even prisoners are entitled to minimum rights, including access to the courts, freedom of expression and religion, freedom from cruel and unusual punishment, medical care and due process.

If the test of a community’s civility is the way they treat their weakest members, surely incarcerated persons are some of the weakest if they have no say in how they must live.  In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The law is so vague as to what is acceptable treatment of prisoners, that it appears the morality of each community will determine who they elect to operate their jails and how they wish to treat people inside their jails. It is important for citizens to think about how treatment inside will impact behavior outside when they are released.

In Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), the court found that detainees who have not yet gone to trial and are imprisoned based on their inability to provide a bail bond, do not have any more rights than those who have been convicted. During detainment a person could lose their job, home, family – even if they are never convicted. Furthermore, if they are not permitted to maintain their medical needs while incarcerated, they could lose their health. This would certainly fall under one of the four areas described by the Supreme Court in their analysis of cruel and unusual punishment in Furman v. Georgia, as one that is “severe and unnecessary”.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”
1. The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture.
2. “A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
3. “A severe punishment that is clearly and totally rejected throughout society.”
4. “A severe punishment that is patently unnecessary.”

Justice Brennan also wrote that he expected no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a “cumulative” analysis of the implication of each of the four principles. In this way, the United States Supreme Court “set the standard that a punishment would be cruel and unusual [,if] it was too severe for the crime, [if] it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.”

President Obama will soon be signing the new five-year farm bill that won passage in the Senate on Tuesday, 2/03/14 – legalizing hemp. A short clause buried deep in the 959-page bill authorizes colleges and universities to grow industrial hemp for research purposes in states where it is legal: California, Oregon, Montana, Colorado, North Dakota, Kentucky, West Virginia, Vermont, and Maine. Another 11 states have bills pending before their legislatures in 2014 to legalize hemp and/or medical marijuana.

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