The prohibition against "cruel and unusual punishment" is a central feature of our democracy. Without adequate safeguards of the right not to be subjected to such treatment, law enforcement and prison system officials would not have guidelines of appropriate conduct, and the untethered few could engage in practices that could range from unfair to barbaric. There would be neither oversight to protect against such activities, nor remedies for their occurrence. The prohibition against such punishment is part of the system of checks and balances between a government and its people that is central to our democracy. While it may seem unfathomable in the United States that cruel and unusual punishment could occur in any but the most rare of instances, that is true precisely because of such a prohibition.
That being said, it is time that we consider narrow exceptions to these rights. When crimes are so grave and unconscionable that they unequivocally and profoundly offend our nation's fundamental sense of humanity, maybe the offenders should be treated more harshly. Why treat serial killers with respect? The respect they deserve should be benchmarked to the amount of respect they repeatedly accorded their victims. They did not just have a bad day. A serial killer has time to reflect between killings, and makes a conscious decision to continue their behavior. In cases when they decided to do it again, and again, their conviction is not just about what they did, but also who they are. If they treated human life as cheap or insignificant, then their life should carry that same discounted price tag.
Who needs a serial rapist? If they continued their behavior, or couldn't be successfully rehabilitated, after their first offense, and even after their second, what reason do we have to believe that they will turn over a new leaf sometime thereafter, once their criminal tendencies have become even more intractable?
Ideas / Solutions
Our national government should consider whether the most extreme offenses are ripe for a modern version of "an eye for an eye, a tooth for a tooth". If applied too loosely, this view could be labeled as reactionary, morally unjustifiable, insensitive, impulsive, or just plain ridiculous. As long as tailored to specific extreme circumstances, however, it would be a demonstration of justice in the very truest sense. When applied to the perpetrators of the most heinous repeated or multiple crimes, it should be viewed as just and fair.
Such an approach would not negate the need for strict adherence to due process and conformance to judicial process. To the contrary, the need would be enhanced since the consequences would be increased. Enhanced scrutiny would be needed in order to be absolutely 100% certain of the guilt of the defendant prior to an "eye for an eye" style of punishment. Advances in technology, such as DNA testing, have brought with it assurances of evidentiary certainty, although technological testing would not alone justify such treatment.
It is time to reassess the need for the judicial leniency that is largely a holdover from earlier times when concrete certainty was less common and precautions were, therefore, more essential. Past precautions have less justification in these circumstances and should be suspended in the case of the most egregious repeat offenses. The sentencing of these criminals should take the certainty of guilt into account and reflect the outrageousness of the crimes committed, once guilt is absolutely established.
Similarly, those who preach and practice hatred of others should be treated in accordance with that same code of conduct, as in the "golden rule" principle of "do unto others as you would have others do unto you". A forgiving and sympathetic attitude is to be adopted whenever even marginally appropriate. But when, for example, someone is convicted with absolute certainty for multiple violent beatings and murders which are judged to be "hate crimes" on top of that, then he should be accorded all the same courtesies that he gave his victims. The repeat hate crime convict, by acting with cruelty and malice, deserves to be bound to those principles and held accountable in equal measure. It is actually an injustice to treat such an organism with full respect or leniency when they gave the absolute opposite to others. The rubric of justice should not unlock the prison he built for himself.
Why simply confine someone to life in prison after they brutally took the lives of many? Why even simply sentence them to death? Perhaps the sentence in the most rare and extreme cases should be to accord to that person the same treatment that they bestowed upon their victims. This would be cruel and unusual if it exceeded the degree of cruel and unusual punishment that the criminal perpetrated on his many victims. But in such morally outrageous cases as those of Jeffrey Dahmer and Dennis Rader, the BTK Killer, such punishment is entirely in proportion to the suffering that they deliberately caused. Such treatment should be allowed in only the rarest, most offensive, most horrific repeat cases where guilt clears not only the usual standard of "beyond a reasonable doubt", but is also proven “with 100% absolute certainty”. It is likely that, in their heart of hearts, even ACLU stalwarts would acknowledge the validity of more severe punishment in these cases.
Is this disturbing? Of course it is. Yet, it is less disturbing than being the least bit merciful to someone who so inhumanly and unrelentingly refused to be. It is far less disturbing than the recurring crimes that were actually committed.
Is it possible that the framers of our Constitution intended an exception for those persons who, with absolute certainty, wantonly and repeatedly prevented numerous other persons from enjoying their own Constitutional rights?