SAMPLE MEMORANDUM

TO:  Judge Gerstenfeld
FROM: Jason Wegman
DATE: January 27, 1998
RE:  People v. Pesty, 98-002

I. United States Constitution amendment XIII

II. Confused Education Code  49000 (West 1986)
 The legislature finds and declares that the protection against corporal punishment, which extends to other citizens in other walks of life, should include children while they are under the control of public school.  Children of school age are at the most vulnerable and impressionable period of their lives and it is wholly reasonable that the safeguards to the integrity and sanctity of their bodies should be, at this tender age, at least equal to that afforded to other citizens.

III. Confused Education Code  49001 (b) (West 1986)
 (b)  No person employed by or engaged in a public school shall inflict, or cause to be inflicted corporal punishment upon a pupil.  Every resolution, bylaw, rule, ordinance, or other act or authority permitting or authorizing the infliction of corporal punishment upon a pupil attending a public school is void and unenforceable.

IV. Confused Penal Code  594 (West 1997)
 (a)  Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:
 (1)  Defaces with graffiti or other inscribed material.
 (2)  Damages.
 (3)  Destroys.
 (b) (4)  If the amount of defacement, damage, or destruction is less than four hundred dollars ($ 400), vandalism is punishable by imprisonment in a county jail for not more than six months, or by a fine of not more than one thousand dollars ($ 1,000), or by both that fine and imprisonment.
 (c)  Upon conviction of any person under this section for acts of vandalism consisting of defacing property with graffiti or other inscribed materials, the court may, in addition to any punishment imposed under subdivision (b), order the defendant to clean up, repair, or replace the damaged property himself or herself, or, if the jurisdiction has adopted a graffiti abatement program, order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti for up to one year.  Participation of a parent or guardian is not required under this subdivision if the court deems this participation to be detrimental to the defendant, or if the parent or guardian is a single parent who must care for young children.

 For the crime of vandalism, is a sentence that includes 15 lashes with a bamboo cane a violation of the appellant's 8th amendment protection against cruel and unusual punishment?

 It is likely that the Confusion supreme court will adopt the ideas held by courts in other districts, and follow the current trend, in that corporal punishment is a violation of the eighth amendment's protection against cruel and unusual punishment.  The sentence of fifteen lashes with a bamboo cane will probably be seen as an excessive punishment that is cruel and unusual.

 The appellant, Chester Pesty, who was fourteen years old, spray painted his "tag", "pest", on several of his neighbor's houses, as well as some neighborhood signs on the second of January, 1997.  He was arrested shortly afterward, and charged with vandalism, a violation of the Confused Penal Code  594.
 Pesty was tried as an adult under a Confused statute that permits all people over the age of ten to be tried as adults, at the discretion of the prosecutor.  The decision of whether to try Pesty as an adult or as a juvenile is completely up to the prosecutor.
 The jury convicted Pesty on five counts of vandalism.  Because Pesty had three previous convictions, the judge sentenced him to the maximum penalty allowable in the state of Confusion: five six month sentences in the county jail, to run concurrently; a fine of $5,000: and fifteen lashes with a bamboo cane.
 Pesty's conviction and sentence were upheld by the appeals court, and he now appeals to the Confusion supreme court.  Pesty claims that Confusion's waiver process violates his due process rights, because it should be the judge who decides where to try him.  Pesty also argues that the caning violates his eighth amendment rights.

I. Eighth amendment meaning, and application to the state of Confusion
 The eighth amendment of the United States Constitution protects individuals' rights against the infliction of cruel and unusual punishment.  The eighth amendment is binding on every state in the United States through the fourteenth amendment.  Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962).  When the eighth amendment was added to the United States Constitution in 1791, the terms describing exactly what constitutes cruel and unusual punishment were left very vague.  Most courts have assumed that the framers of the Constitution left the terms vague by design.  Thus, the meaning of cruel and unusual punishment, in law, has varied with the passage of time.  The Court in Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590 (1958) noted the "[eighth amendment] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
   There has also been argument over whether a punishment can be just cruel, or just unusual, or if the punishment has to be both cruel and unusual to violate the eighth amendment.  In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590 (1958), the Court found there is no significant difference between cruel and unusual.  If a punishment is said to be cruel, it is also unusual because of it's cruelty, or vice versa.  Therefore, if one requirement is met, both requirements are met.
 There has been difficulty in ascertaining exactly what constitutes a violation of the eighth amendment.  Most courts follow a test for cruel and unusual punishment.  In Justice Brennan's concurring opinion in Furman v. Georgia, 408 U.S. 238, 279, 92 S. Ct. 2726 (1971), he stated:
The final principle inherent in the [cruel and unusual punishment] Clause is that a severe punishment must not be excessive.  A punishment is excessive under this principle if it is unnecessary:  The infliction of a severe punishment by the state cannot comport with human dignity when it is nothing more than the pointless infliction of suffering.  If there is a significantly less severe punishment adequate to achieve the purpose for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.

II. Application of the eighth amendment to corporal punishment

 A. Corporal punishment of an adult
 Corporal punishment refers to the physical punishment of an individual, such as whipping, flogging, paddling, or caning.  Corporal punishment was an acceptable means of punishment in 1791, when the eighth amendment was adopted.  Candido v. Hawaii, 31 Haw. 982 (1931).  However, this form of punishment has rarely been used in modern times.  There have been no cases decided that present mandatory authority over the subject of corporal punishment in the state of Confusion.  But, there are a few cases from other districts that have dealt directly with the constitutionality of corporal punishment.  In Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark 1965), corporal punishment was considered in accordance with the eighth amendment if there were appropriate safeguards to prevent excessive punishment.  There was also a Delaware case where a man was sentenced to a penalty of lashes.  The court here also found it was not unconstitutional to impose a sentence which included corporal punishment, Delaware v. Cannon, 55 Del. 587, 190 A, 2d 514 (Del. 1963).  It was the opinion of a Hawaiian court that whipping an inmate was not cruel within the meaning of the eighth amendment.  "[Whipping] was not intended by the framers of the Constitution to be prohibited." Candido v. Hawaii, 31 Haw. 982, 1000 (1931).  However, Justice Banks had a strong dissenting opinion in Candido v. Hawaii, 31 Haw. 982 (1931).  Banks stated that all of the enlightened nations of the world (accept Russia) have abolished flogging as a form of discipline in prisons.  Id. at 1003.  He also pointed out that, in 1861, the United States Congress abolished the whipping of any person in the armed forces.  Id. at 1003.  Furthermore, Banks believed whipping serves no purpose of reformation and only serves to humiliate and degrade the recipients.  Id. at 1004.
 Today, many courts follow the decision in Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).  The court in Jackson v. Bishop found the use of a "strap" for disciplinary purposes, in an Arkansas state penitentiary, a violation of the eighth amendment.  The safeguards put in place after the Tally v. Stephens, 247 F. Supp. 689 (E.D. Ark. 1965), decision did not provide adequate protection.  Jackson v. Bishop, 404 F. 2d 571 (8th Cir. 1968).  According to the court in Jackson, corporal punishment offends modern concepts of human decency and dignity.  Rules and regulations regarding the use of corporal punishment do not prevent abuse.  These rules are often ignored.
Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous.  [Corporal punishment] generates hate toward the keepers who punish and toward the system which permits it.  It  is degrading to the punisher and to the punished alike.  It frustrates correctional and rehabilitative goals.
Jackson v. Bishop, 404 F.2d 571, 582 (8th Cir. 1968).
The Jackson court was also unconvinced that this form of punishment was needed for disciplinary purposes, and that the state was too poor to provide other adequate forms of punishment.  Id. at 582.

B. Corporal punishment of a minor
 Corporal punishment of minors was once widely accepted in this country.  This form of discipline was used by parents and schools alike, well into the 20th century.  Candido v. Hawaii, 31 Haw. 982 (1931).  The court in Sims v. Board of Education, 329 F. Supp. 678 (D.C. N.M. 1971), held that beatings by school officials did not violate the eighth amendment where the minor received no more than three blows with a paddle on the buttocks and experienced only slight pain.  However, since Sims v. Board of Education, the courts have frowned upon the use of corporal punishment.  The court in Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974),  ruled that the supervised paddling of minors, in a reformatory, violated the minors' protection against cruel and unusual punishment under the eighth amendment.  The reasoning in Nelson was similar to the reasoning in Jackson v. Bishop, 404 F2d 571 (8th Cir. 1968).  The court in Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), noted that corporal punishment is easily subject to abuse, control of the punishment's severity is inadequate, formalized procedures governing the use of corporal punishment were at a minimum, the infliction of severe corporal punishments frustrates correctional and rehabilitative goals, and the current sociological trend is toward the abolishment of corporal punishment.
 Corporal punishment in public schools has been eliminated, in the state of Confusion, through the Confusion Education Code  49000, 49001 (West 1986).  Conf. Edu. Code  49001, b (West 1986) states:
No person employed by or engaged in a public school shall inflict, or cause to be inflicted corporal punishment upon a pupil.  Every resolution, bylaw, rule ordinance, or other act or authority permitting or authorizing the infliction of corporal punishment upon a pupil attending a public school is void and unenforceable.
This is a statute and obviously not a court rendered decision but, it clearly shows the public's current feeling toward corporal punishment.

III. Maximum punishment under Confused Penal Code  594

 The appellant, Chester Pesty, being convicted on five counts of vandalism, was given a punishment of five six month sentences in a county jail (to be served concurrently), a fine of $5,000, and fifteen lashes with a bamboo cane.  Putting aside the brutality of the punishment, the sheer extent of the punishment is likely to be deemed excessive.  The Confused Penal Code  594 b (4) (West 1997), states:  "[For damage less than four hundred dollars] vandalism is punishable by imprisonment in a county jail for not more than six months, or by a fine of not more than one thousand dollars ($ 1,000), or by both that fine and imprisonment."  Confused Penal Code  594 c (West 1997), states that in addition to the six months in a county jail, and the one thousand dollar fine, the defendant may be required to clean repair or replace the damaged property, or participate in a graffiti abatement program for up to one year.
 There is no mention of corporal punishment, or any forms of corporal punishment, in the Confused Penal Code  594 (West 1997).  The maximum punishment for the crime of vandalism is clearly spelled out.  However, there is also no mention that, specifically, corporal punishment may not be used.  It is likely that the court will see the use of corporal punishment as an excessive punishment for the crime of vandalism, thus violating the eighth amendment.

 The current trend is towards the elimination of corporal punishment.  It is likely that this court will follow this trend in finding the appellant's sentence a violation of the eighth amendment.  Using the test put forth in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1971), the punishment of caning will probably be considered excessive.  According to the Furman decision, a punishment is excessive if it is the pointless infliction of suffering when there is a significantly less severe punishment available that will serve the same purpose.  Therefore that punishment is unnecessary and excessive, which violates the eighth amendment.  The court in Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), stated that it was not convinced the state needs corporal punishment as a tool for discipline.  There are other more humane means of discipline.  It was also stated in Jackson that corporal punishment generates hatred and frustrates correctional and rehabilitative goals.
 There are some cases that have ruled in favor of corporal punishment.  In Sims v. Board of Education, 329 F. Supp. 678 (D.C. N.M. 1971), the court ruled that the beating of a minor was not cruel or unusual if the beating was limited to three blows with a wooden paddle and caused only slight pain.  However, with the case at hand, it is clear that fifteen blows with a bamboo cane well exceeds both limitations set forth by Sims.  Another case which supported the use of corporal punishment is Candido v. Hawaii, 31 Haw. 982 (1931).  The court in Candido held that flogging and whipping were not intended to be prohibited under the eighth amendment.  These practices were used in 1791 when the amendment was added to the U.S. Constitution.  However, in Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590 (1958), the court noted that "The eighth amendment must draw it's meaning from the evolving standards of decency that mark the progress of a maturing society."  Therefore, what may be considered a violation of the eighth amendment today, could have been common practice in 1791 when the amendment was adopted.
 Case law is not the only authority to be considered.  There has been a statute written on the subject of corporal punishment and minors in public school.  Confusion Education Code  49000, 49001 (West 1986).  This statute prohibits the corporal punishment of any child under the control of public school.  This clearly shows what the public opinion is on the subject of corporal punishment.
 Finally, the fact that the Confusion Penal Code  594 (West 1997), lists the maximum penalty for the crime of vandalism, and does not mention caning, might indicate the sentence of fifteen lashes is excessive.  There is another alternative available to caning.  The graffiti abatement program is significantly less severe than fifteen lashes with a bamboo cane, and will achieve the same goal.  The carrying out of the sentence given to the appellant will most likely be seen as a violation of the eighth amendment by the Confusion supreme court.