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Comment by apo | Hacker News Reader

The first thing this brings to mind:

> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United...

The article on Judge Cicconetti doesn't mention how many of his alternative punishments have been challenged on appeal (or if that's even an option).

Let's say a judge wants to do something similar, but in a more malevolent way supported by the local community. What checks the power of this judge other than an appeal through the court system?

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Case law has further defined "cruel and unusual punishment". The Supreme Court decision in Furman v. Georgia established that punishment must not: "by its severity be degrading to human dignity", "a severe punishment that is obviously inflicted in wholly arbitrary fashion," "a severe punishment that is clearly and totally rejected throughout society," or "a severe punishment that is patently unnecessary." severe punishment that is patently unnecessary.

I think it would be difficult to argue that any of Michael Cicconetti's creative punishments are "severe". Conversely, they appear to be relatively lenient compared to orthodox punishments. Additionally, the punishments are arguably the opposite of arbitrary, being designed to match the specifics of the crimes.

Courts have ruled that punishment must be both cruel AND unusual to qualify. These sentences are unusual but not cruel. Prison may be cruel but is not unusual.

I always wondered how the death penalty passed this test and I guess this is how. You can certainly say it's cruel but obviously not unusual.

Well the other way it passes the test is that it certainly wasn't abolished by the Constitution when it was written, so why would it be abolished by the Constitution today? Only if it got particularly unusual, at which point the Eighth Amendment would kick in to protect against one rogue judge meting out a punishment that had been largely abandoned by society.

I think the definition of what is cruel and unusual changes. When the US Constitution was written people were still being hanged, drawn and quartered.

I wonder if the fact that he offers it as a choice mitigates some of the concern.

Had this same thought. It'd be hard to argue a punishment was "cruel or unusual" if you picked it over a punishment that is already legally accepted and the standard (fine or jail).

According to the wiki article, the sentences aren't mandatory. They're presented as a choice where one choice is a period of time in jail and the other is an action in the community and a shorter period of time in jail.

IANAL but, I suspect that since the full length jail sentence is considered neither cruel nor unusual and is an option for the convicted person, that should mean that if they choose a different option, it can't be cruel because they found that option more pleasant than one that is already determined to not be cruel. I guess this assumes that people will tend to choose the less cruel punishment given two options, but that seems like a safe assumption.

> > Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

FTA:

> During heavy blizzards, he ordered defendants to clear snow at a retirement home.

I didn't check them all. This one however, I find dubious. Because essentially he is putting these defendants in harmful, dangerous weather.

The other option is the standard one: jail. So, I don't see anything negative in it.

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