SCOTUS has already ruled that the death penalty is not cruel and unusual punishment - more specifically, that since it is not unusual, it is not a Constitutional violation despite where you feel it falls on the cruelty spectrum. A common pleas or even circuit court judge can't simply say "lol whatever I'm going to ignore that." Only SCOTUS can reverse its position on the Constitutionality of the death penalty.

SCOTUS has ruled that the death penalty _is_ cruel and unusual punishment in many circumstances.

For example, in 1980 they ruled that it could only be applied only if it involves a precise and aggravating factor[0].

Louisiana had a law that made the rape of a child punishable by death and SCOTUS overturned that law in 2008[1].

SCOTUS has consistent narrowed the crimes punishable by death in the past 50 years using the Eighth Amendment as a justification.

[0] https://en.wikipedia.org/wiki/Capital_punishment_in_the_Unit...

[1] https://en.wikipedia.org/wiki/Kennedy_v._Louisiana

Just look at the number of executions of people with mental handicaps and tell me the current justice system is capable of acting in a just fashion. https://deathpenaltyinfo.org/list-defendants-mental-retardat...

The parent has not made such a claim.

s/"in many"/"in certain, very specific"

That does not change the fact that SCOTUS has upheld the death penalty generally as being a Constitutional punishment.

Your substitution is inaccurate. The rulings effectively mean that the death penalty is cruel and unusual except in certain, very specific circumstances. Only the most extreme crimes qualify. Even the rape of a child is not extreme enough unless done multiple times. It might seem applicable to only a few cases, but that is only because few states attempt to apply the death penalty except in the most extreme circumstances.

A lower level court judge can make a ruling, like finding a $250 fine for a poor person cruel, that stands, because it's not a SCOTUS issue. The death penatly sure, and the legality of it has already been decided in the U.S., and is usually for serious crimes. But for low-level offenses, the likes of which are rarely — or basically never — brought before SCOTUS or higher level courts, a judge can rule in any way he sees fair, as that's his job.

> Only SCOTUS can reverse its position on the Constitutionality of the death penalty.

Yes, although there are many things that SCOTUS ruled constitutional that are just unpopular in this day and age that nobody treads in that territory.

So we and all the states have the choice to just not practice that, for example. Yes, in this case that is unlikely. Still an option.

Of course the states are free to outlaw the death penalty, that doesn't address whether or not it is Constitutional. There are plenty of things that are completely Constitutional but which are outlawed in the majority of states.

As far as popularity goes though, the death penalty has been more popular than not for all but a brief time in the 60's[0], and I think it's dangerous to conflate popularity with Constitutionality, or to suggest even implicitly that they should have any bearing on each other.

[0] https://news.gallup.com/poll/1606/death-penalty.aspx

But SCOTUS can only reverse what is brought to it, right ? So a circuit court judge has to ignore that so that SCOTUS can have the occasion to reverse its position ?

Bear with me, I am not from the US.

That's not quite how it works. The lower court would be expected to uphold SCOTUS's rulings, though there is some wiggle room.

The main way things get before SCOTUS is through the parties appealing the lower court decisions and then SCOTUS deciding to hear it.

Most of the time it is not the judge that delays the trial, but the lawyers. The first hearing is generally in a few days.

Ok, so for the latter do you then just release people? You can't fix a judicial system by mere declaration.

Well, look at the alternative. Under the current system, besides the destructiveness of incarcerating often innocent people for months for trivial charges, you wind up with people pleading guilty to crimes they never committed, just to avoid being locked up for months.

A basic principle of common law and the American justice system is that it's better to free the guilty than imprison the innocent. So just on American principles, letting poor people go on the assumption that they'll return for trial is better than keeping them in jail for lack of bail.

This is a misrepresentation of the legal system in the US. There's an immense amount of information on this topic available from the Bureaeu of Justice Statistics. This [1] paper in particular is highly relevant.

Bail tends to be set in relation to the criminal record of an individual, the seriousness of an offense, how much of a flight risk they are, and whether or not they're likely to be a danger to themselves or others if released. It's not the 'norm'. So for instance of all individuals (arrested for any offense) 77% of those with no priors end up being released without financial condition. For those with misdemeanor priors it's 63% and 46% for those with felony priors.

And there are excellent test cases that can experimentally show whether these release conditions are reasonable. For instance there are occasional emergency releases caused by things such as prison overcrowding. And this is where people that would not normally be released without condition, are. Of these individuals 52% end up being charged with pretrial misconduct! For the general population of people intentionally released that figure ranges from 27%-36% depending on the release type.

And when somebody is forced to pay bail, they have numerous options. Generally they only have to pay 10% of the cost of the bail. In some cases that can be paid directly to the court who will then refund that 10% once they return for and complete their trial. If that's not an option the way bail bondsmen work is that an individual pays the bail bondsmen 10%. The bail bondsmen then go to the court and pay 100% of the bail on behalf of the individual. They get that 100% back once the individual returns and completes their trial, so the 10% is their profit margin. This is also where modern day 'bounting hunting' tends to come into play -- the bail bondsmen have a very strong incentive to ensure that their clients do not flee.

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So the point of this all is that in the vast majority of cases we do simply let people go on the assumption they'll return to trial. For those that we don't let go, there tends to be a pretty good reason. That article from the BJS I linked has a great table at the bottom that offers some regression figures for release/return rates of various groups helping to determine how justified various decisions are. In most cases they are, in some cases they are not. It's pretty reasonable to conclude that it's a system that does well, but could be made to do better. But it's quite different from what you would portray it as.

[1] - https://www.bjs.gov/content/pub/pdf/prfdsc.pdf

"Pre-trial misconduct" is not the same as something that is actually dangerous to society. People released prior to trial are held to a much higher standard than the rest of the population. Most of the pre-trial misconduct is just technical violations, like failing to maintain employment or not reporting in at the scheduled times. Of all people released pre-trial, 17% commit a technical violation while only 4% commit a new crime[1].

[1] https://www.bjs.gov/content/pub/pdf/prmfdc0810.pdf

You're making the same mistake I did. Unfortunately something that's easy to gloss over is that these PDFs are broken up into groups that seem somewhat arbitrary, making comparison and extrapolation difficult. For instance the one you're mentioning is only for cases in federal district courts which is a very different demographic than arrestees at large. Similarly, my original source only was considering state level felony offenses (though that makes the 77% ending up released even more remarkable, but that 77% was not exclusively for no financial condition).

I'm trying to find a more comprehensive article containing data across both misdemeanors/felonies and state/federal courts, but running up short. Their data seems to be heavily segmented in not so useful ways. If you find something along these lines I'd very much appreciate if you'd ping it regardless of its direct relevance.

Do you have evidence that the breakdown of technical violations vs new crime is different across different segments?

I think it'd be pretty intuitive that there would be radically different rates for things among different groups, but sure check out page 7/8 of the felony document I originally linked. The rate of individuals being arrested for a new offense ranged from 13%-21%, felony rearrest rates ranged from 10%-13%, and so on.

One other thing you have to look at as well is the time frame. As time goes on you get closer to the real 'risk' rates. That's also detailed at the top of page 7. For instance only 8% of those those that would be rearrested were rearrested within a week, which goes to 29% in a month, 62% in 3 months, and 85% in 6 months.

Again it's very disappointing that the data aren't more clearly quantified and classified across documents.

I think it'd be pretty intuitive that there would be radically different rates for things among different groups, but sure check out page 7/8 of the felony document I originally linked. The rate of individuals being arrested for a new offense ranged from 13%-21%, felony rearrest rates ranged from 10%-13%, and so on.

I'll observe that none of the statistics you offer covers the demographic of the article. I would be willing to wager that if you look at the same statistics split across income levels, you'll see a noticeable difference in rates.

If you accept for the sake of argument that a six month jail sentence waiting for trial is a violation of your Constitutional right to a speedy trial (it's not[0], particularly if you're waiving a jury trial and are being tried by a judge), the person whose rights were violated would need to sue and appeal on those grounds. It's very unlikely that on day 121 the judge dismisses the case, but they're certainly free to do that if they feel it was a violation.

[0] https://www.legalmatch.com/law-library/article/right-to-a-sp...

I'm not sure it would be unlikely given the narratives of the article. At least it shouldn't be. Judges exist, partly, to prevent Kafkaesque application of rules from causing injustice.

Sure. That's already basically how it works with rules for gathering evidence, for example. If you improperly gather evidence, it becomes inadmissible, and if it was critical to making your case then the accused will go free.

Once criminals start going free because of easily fixed procedural problems, those problems will be fixed quickly.

Sounds good. It would provide an incentive to prioritize cases that really matter.

It has to be cruel and unusual. Fines may or may not be cruel but they're definitely not unusual.

Fines in general aren't. Fines so big that the individual cannot realistically pay them are up for discussion, IMHO.

I admit there's a Catch 22 logic here though. Once a punishment starts being handed so often that it becomes a problem for society, it becomes "usual".