Las Vegas Deputy City Attorney Daniel Still’s memo on whether the stocks constitute “cruel and unusual punishment,” is so good, we think somebody should send it to the Bush administration, which could benefit greatly from reading at least the first section.

The attorney, whose memo betrays a certain amazement that the question even needed to be asked, let alone answered, does yeoman’s work pointing out how the stocks are wrong. And he restrains himself from calling Mayor Oscar Goodman a dumbass for proposing the idea in the first place. (Goodman wanted to use the old-time punishment on graffiti vandals, allowing people to paint their faces while their head and hands are immobilized in the stocks.)

“The main functions of the Eighth Amendment’s prohibition against cruel and unusual punishment is to limit the power of a legislative body to establish penalties for crimes, restrict courts when sentencing convicted defendants and protect prisoners from the excesses of prison authorities in the executive branch,” writes Still. (A copy of the memo was sent to us here at Various Things & Stuff after an Open Records Law request. Goodman waived the usual attorney-client privilege so the document could be released. Thanks, mayor!)

“The United States Supreme Court has declared that ‘the unnecessary and wanton infliction of pain … constitutes cruel and unusual punishment forbidden by the Eighth Amendment,’” Still adds.

But wait, you may be saying at home. They used the stocks long after the Eighth Amendment was written. So how could they be considered cruel and unusual when measured against the founder’s intent? If the framers of the Bill of Rights thought the stocks were cruel, would they not have been banned after the Bill of Rights was adopted?

Good question. And Still’s answer, culled from court rulings: We’re not talking about the framer’s intent. We’re talking about modern standards.

The Eighth Amendment, the Supreme Court has ruled, “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency against which penal measures must be evaluated,” Still’s memo reads. “The Estelle court [referring to the 1976 Estelle v. Gamble decision] further indicated that punishments which are incompatible with evolving standards of decency that mark the progress of a maturing society or which involve unnecessary and wanton infliction of pain are repugnant to the cruel and unusual punishment clause.”

Moreover, Still adds, punishments that are inhumane, barbarious [sic], unknown to common law or which have become obsolete with the progression of humanitarianism violate the Eighth Amendment.

Let’s get practical: In Hope v. Pelze (2002), the Supreme Court ruled that handcuffing an inmate to a chain post for two to seven hours was cruel and unusual punishment. If that’s true, the stocks are definitely out.

The question we should now be asking is, given Still’s memo and its fairly sound legal reasoning, why are things like torture and secret prisons allowed under U.S. law? The obvious answer: They’re not, but, much like warantless wiretapping, the Bush administration is doing them anyway. If only they had the moral conscience of a deputy city attorney in Las Vegas. (And, while we don’t agree with Goodman on using the stocks to punish, we do think he did the right thing to ask his legal counsel to issue a ruling before plowing forward with a bad idea. Would that the president would take as much care as the mayor.)

Oh, and about that idea that a person could voluntarily choose the stocks, to avoid or reduce a stint in jail? Yeah, that’s out, too, Still writes in his memo. “The Supreme Court indicated that a promise associated with a waiver is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement,” the memo reads.

“Based upon the above common law analysis of waiver, it is likely a court would consider a defendant’s waiver of Eighth Amendment protections against cruel and unusual punishment as an unenforceable promise,” the memo adds.

Don’t forget, counselor, that this is Las Vegas, the wild west. You never know what our courts will do. Unless you’re a friend of the judge, that is.