B.2(x). Protection from Excessive Bail and Cruel or Unusual Punishments

Excessive bail or fines are forbidden. Punishments may not be cruel or unusual when measured against norms across the United States and other advanced nations. The penalty for abuse of Civic Standing in Article IV, Section 4 of this Charter is not considered a violation of this Right.

The first sentence of this Right is clear and borrows heavily from the Eighth Amendment to the Constitution of 1789.[1]

The next sentence is a little different. “Cruel and Unusual” punishment is a vague standard, unless you know what isn’t unusual. In the case of a single State, the courts can easily compare their practices with those of other States. But at the federal level, if the Supreme Court strikes down a federal punishment as 'unusual,' what comparison set are they using? Other federal punishments? That creates a circular standard where federal practices define their own constitutionality. The only reasonable standard to use is to compare to practices outside the United States. But some nations routinely allow torture, rape, starvation, and other punishments for crimes. Certainly and obviously, those are exactly the kinds of abuses this right is intended to curtail. That being the case, a broad look at all other nations isn’t reasonable. What is reasonable is to compare our practices to those of other countries we consider our international peers. This provision codifies the legitimacy of that practice.

A pointed critic might say that this cedes American sovereignty in these cases. That critic would be wrong. This language allows for the comparison, but places no mandate on the courts to make a determination in favor of or against any form of punishment. It only provides for considering other nations’ practices as a basis for determining what is cruel or unusual.

Finally, in Article IV, Section 4.A.3(b), a significant punishment is mandated for the abuse of Civic Standing. While codification in constitutional text should be enough to protect that provision, a specific carveout is included in the language here to drive home the point.

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[1] See U.S. Const. amend. VIII.