In reading an article in the New York Times this evening, I came across an article that featured an early decision from Justice Kennedy when he was still on the bench from the 9th Circuit. His writing in one sentence from Spain v. Procunier, 600 F. 2d 189 – Court of Appeals, 9th Circuit 1979 caught my eye:
“Underlying the Eighth Amendment is a fundamental premise that prisoners are not to be treated as less than human beings.”
Spain V. Procunier was about the treatment of prisoners when incarcerated within the Department of Justice but, isn’t the plight of our fellow citizens in every state controlled by law? We cannot escape the requirement (and penalty) of Residency Restrictions any more than a prisoner can just walk out of his/her prison cell to get a little fresh air.
We may not be prisoners in the literal since but we are still not permitted to join the rest of the free society to live work and play, just like a prisoner is not allowed out of the prison compound.
When SCOTUS gave the decision in Packingham, it refereed to Facebook as the new “Town Square”. Therefore (in the same line of thinking) we are still prisoners even though we are not behind bars. This decision must be determined by a judge in a court of course, but when you plead your case you must persuade the court that your argument is lawful. You “move” the court for any decision you would like it to have in your favor. The information contained in Spain v. Procunier given by Justice Kennedy in 1979 can be used to “move” the court to show how this case law notes that we should “…not to be treated less than human beings.”
We also find the use of the same above verbiage in Graves v. Arpaio, 48 F. Supp. 3d 1318 – Dist. Court, D. Arizona 2014 under the section titled: D. Eighth Amendment Standard for Medical and Mental Health Care. The paragraph states that “…Eighth Amendment requires that prison officials ensure that inmates receive adequate food, clothing, shelter, sanitation, and medical care and take reasonable measures to guarantee the safety of the inmates.”
Again, we are technically not inmates/prisoners but yet we are treated as such. Should be not be afforded the same that the case law mentioned gives those who are behind bars. I see no difference between us and them.