In 1962 the Supreme Court considered a California law that would prescribe 90 days jail for being a drug addict. The law was ruled unconstitutional on the grounds that it violated the Eighth Amendment prohibition against cruel and unusual punishment. Justice Potter Stewart had this to say about the matter: “To be sure, imprisonment for 90 days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”
I’ll repeat that for emphasis: The question cannot be considered in the abstract.
This opinion is one that I’ve held ever since I first became homeless and found out there were people convinced my condition was criminal and best corrected by time in jail.
You can’t consider the question in the abstract when you’re the one threatened with jail, certainly. If you’re the one threatened with jail for simply being homeless, it is time to scream, over and over again, “Keep your hands off me; keep your laws off me.”
So I’m very pleased to see that the U.S. Department of Justice (DOJ) is applying the reasoning of Justice Stewart and the Supreme Court in that 1962 case, finally, to laws criminalizing homelessness.
Boise, Idaho, has a law that makes it a crime to sleep or camp in public places. The doj has filed a statement of interest that says that such laws in general criminalize homelessness itself and as such any jail time that may result from enforcement violates the Eighth Amendment.
The statement includes this passage: “Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”
Yes! Thank you, Loretta Lynch. Less than four months in office, and you’re already my all-time favorite United States Attorney General.
Next up, we need to build on this understanding and agree that it’s cruel and unusual punishment to shoot a man four times for whittling in public. It’s cruel and unusual punishment to choke a man to death for selling cigarettes, just because he says, “Don’t touch me.” It’s cruel and unusual punishment to execute a jaywalker.
Justice Stewart’s point applies more than ever. These questions cannot be considered in the abstract. If even so much as one day of jail time for the ‘crime’ of being homeless is understood to be an unacceptable violation of Eighth Amendment protection, the same has to be granted wherever there is even a remote possibility that police actions might result in what amounts to summary executions.
The right to be free from murder is not an abstract idea. We do not need law professors to tell us these acts of police brutality have to stop.
Sandra Bland was arrested for the ‘crime’ of being uppity. Her uppityness consisted in being annoyed at being pulled over in her car for failing to use her turn signal while being pulled over, and then objecting to being told to put her cigarette out in her own car.
We don’t need any law professors to tell us stop arresting people for the ‘crime’ of not bowing to our masters.
Extra credit questions to consider in the abstract:
The author of this column clearly was in a foul mood when he wrote it. Compare and contrast his mood with the mood of the average man or woman tried and sentenced by Glock.
Politics is the ancient art of enabling people to live together in cities. If people aren’t enabled to live together in cities by the politics of our day, then what good is that politics? Be as unspecific in your answer as you need to be to keep it abstract and inapplicable.