The recent decisions that have attempted to explain the scope of the Cruel and Unusual Punishments Clause suggest that, abstractly, there may be some merit in the asserted eighth amendment challenge. Before the challenge can be argued from a position of strength, however, there is at least one prerequisite. The "distinction according to purpose" accepted by the courts must be recognized for what it is in many instances-a semantical distinction that fails to look at the coercive imprisonment any further than the locking of the jailhouse door. What strength there is in the challenge, in the context of coercion to compel testimony, many well be found in the inherent lack of distinction between the two types of contempt when dealing with witnesses who have no intention of ever testifying. For the strong-willed contemner, this imprisonment clearly predominates with punitive aspects. The courts must uniformly decide, as the Court of Appeal did in In re Farr, that the remedial aspects of civil contempt incarceration are minimal, if not non-existent, when applied to the obstinate contemner.
Seth J. Kelsey,
Incarceration for Civil Contempt: An Asserted Eighth Amendment Challenge Faces a Semantical Defense,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol11/iss4/9