I want to expand on the last post covering the recent death penalty opinion.
The past is to some degree prologue with some spin when referenced to by current writers. This applies in particular to judicial opinions, which makes references to the past here something to be taken with a grain of salt that might be unhealthy for dietary purposes. Still, I will do so here as I did last time to try to help put things in some context and because of personal interest. I'm sure that something will be left out here as well.
Amy Klobuchar's husband, John D. Bessler, wrote a book entitled Cruel & Unusual: The American Death Penalty and The Founders' Eighth Amendment. Bessler's own general beliefs can be suggested by the fact he also wrote the introduction to a book the republished Breyer's dissent in Glossip v. Gross, the one that argued that it is probable that the death penalty as a whole is unconstitutional. See also, Brennan and Marshall's history laden opinions in Furman v. Georgia (the opinions of the Court as a whole led to a short lived death penalty moratorium). Suffice to say that there are different ways to look at history in this context.
Wilkerson v. Utah (1879) is generally deemed the first time the Supreme Court substantively addressed the issue of the method of capital punishment, Utah at the time a federal territory. The punishment there was the firing squad and it was not deemed "unnecessary cruelty." Reference "being embowelled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female." About a decade later, electrocution was not deemed to be unconstitutional either, reference made to "something inhuman and barbarous,something more than the mere extinguishment of life. In 1910, however, the Supreme Court in a non-capital Eighth Amendment case did reference "general principles" not merely limited to the specific evils of its birth. In other words, the Eighth Amendment should not merely be seen as barring drawing and quarter etc. Thus, ear cropping and whipping might have been deemed okay in 1787, but not today.
We are told that in the electrocution case that the the death penalty itself is not a violation: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." This was not universally accepted even at the Founding. A small minority thought capital punishment itself was cruel and usual or simply not republican in nature. A somewhat great number would limit it to a small number of offenses, more limited than mere homicide. See also, the close 5-4 case in the 1940s when a first attempt to electrocute failed. A case apparently still good law today.
Since the 1940s, there were numerous capital cases, largely concerned with specific procedures. In the 1970s, it was clearly held that the death penalty was constitutional, but not in all cases -- there was a growing determination that (roughly speaking) only the "worse of the worst" should be executed, certain categories be eliminated in part by "mitigating" and "aggravating" factors decided by juries. We also had passing comments such as: "The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances."
Nonetheless, again, with dissent, there was an acceptance of the death penalty as such. Likewise, though the experience in other countries suggests the "necessity" unclear, our general penal system (including usage of solitary confinement) is accepted though certain limits are in place. What is "necessary" here still is different from what would be deemed true in 1791 (8th Amendment) or 1868 (14th Amendment). So, though I'm not aware of the Supreme Court expressly saying this, use of whipping posts [even in prison] would seem to be illegitimate.
We come to our current case (Bucklew v. Precythe). One thing that I didn't reference last time, but saw referenced, was that Justice Kennedy provided the swing vote to even allow this case to precede (March 20 stay). This makes the "message" laden majority opinion here rather unsurprising. So, again, we are reminded (which isn't the dispute) that executions need not be painless. Or, the constitutionality of the death penalty per se: "the judiciary bears no license to end a debate reserved for the people and their representatives." This is a basic sentiment of multiple justices here. Reference to "anti-death penalty" groups making things harder etc. The death penalty is constitutional, so (pun fitting) it must be possible to execute.*
The majority opinion cites originalist arguments to flesh out the meaning of the Eighth Amendment. Basically, "fiendish" out of date ("long disused") punishments. A probably telling reference is to Joseph Story saying it was likely unnecessary since no free government would inflict such gruesome punishments anyhow. And, in a way past opinions did not emphasize, it is even noted that traditional methods such as hanging clearly were painful, but that wasn't the intent. That is, it wasn't gratuitously painful. But, though special attention is given to the Scalia/Thomas originalist framework, including some specific "intent" requirement, that isn't necessary to decide the case. We might return to this though.
The later opinion states:
As noted by Justice Sotomayor's dissent in Glossip, precedent suggests that there is a hard bar to "barbaric" punishments without a priviso saying "except when necessary to carry out the death penalty." Again, the matter simply was not pressed, to be honest, but the point holds. Plus, what is this "well beyond" test with all the other dicta? Apparently, even if the state could execute some other way, a way that would substantially reduce pain, it might be okay. And, it would be the prisoner's responsibility to find that alternative, including one where clear usage could be shown (the nitrogen gas method not yet used).
Lethal injection usage has clear due process problems. But, the majority here (Kavanaugh concurring separately to assure us of his reasonableness, but still joining the opinion) is sick of it all. This is as much part of the opinion as specific aspects such as refusal to accept special cases (as applied challenges of this type by people with atypical medical conditions) might require special concerns -- this would more likely result in "pleading games." This runs counter to the sort of individualistic constitutional concerns we should follow here, the sorts the majority might use to reject certain "group" affirmative action policies.
Again, this doesn't bode well, though in other cases, one or more of the justices of the majority has shown more concern for the needs of criminal defendants.
===
I will add something to a possible response to the beginning of the penultimate paragraph. Oh? So, you actually really want to block the death penalty, right? Well, yes, and so do various people who are providing these challenges. At least, for their specific client. But, that is but one of three possible answers to the rejoinder.
Well, of the three that came to mind after writing this but was expressed somehow in these two essays. A somewhat related one is touched upon by Justice Sotomayor: challenges that fail quite often still are reasonable ones. And, that is the second thought: just because you might think the death penalty in some sense is constitutional (or acceptable) doesn't erase its problems. The need to be particularly careful. The need not to give the amount of breathing room this opinion at times does.
The final is that tinkering (to cite a famous line by Justice Blackmun) with the death penalty (and other hard stuff, and yes, I don't think this is always easy) reflects what limited humans are left doing. I am not too optimistic that nitrogen gas is the "solution" here to humane executions (granting that is not some sort of oxymoron), particularly since it is not used for the same purposes in other contexts. Consensual euthanasia with a medical professional not blocked by ethical concerns from taking part, for instance. Or, the few that suggest the firing squad. Or, maybe something else? Who the hell knows, but probably.
But, as in the past, maybe it is somehow better, at least for this specific defendant. For lethal injection has a lot of issues.
---
* The Constitution clearly has language that presupposed when written that capital punishment will occur though not each provision cited only applies to that (e.g., there are multiple ways a state can deprive a person of life in violation of due process). But, there is an assumption from some it somehow expressly gives the government a right to execute people. It does not.
It is particularly dubious that there is some compelling need to execute when so few people are these days. And, as noted, even back in the day, some did not think the death penalty was an appropriate usage of government power. Finally, over time, it clearly is possible that due process, the Eighth Amendment, equal protection principles or maybe something else makes the death penalty as applied in this country unconstitutional. The Double Jeopardy Clause references threats to "life or limb," quite clearly referencing a day when physical punishments were accepted.
The past is to some degree prologue with some spin when referenced to by current writers. This applies in particular to judicial opinions, which makes references to the past here something to be taken with a grain of salt that might be unhealthy for dietary purposes. Still, I will do so here as I did last time to try to help put things in some context and because of personal interest. I'm sure that something will be left out here as well.
Amy Klobuchar's husband, John D. Bessler, wrote a book entitled Cruel & Unusual: The American Death Penalty and The Founders' Eighth Amendment. Bessler's own general beliefs can be suggested by the fact he also wrote the introduction to a book the republished Breyer's dissent in Glossip v. Gross, the one that argued that it is probable that the death penalty as a whole is unconstitutional. See also, Brennan and Marshall's history laden opinions in Furman v. Georgia (the opinions of the Court as a whole led to a short lived death penalty moratorium). Suffice to say that there are different ways to look at history in this context.
Wilkerson v. Utah (1879) is generally deemed the first time the Supreme Court substantively addressed the issue of the method of capital punishment, Utah at the time a federal territory. The punishment there was the firing squad and it was not deemed "unnecessary cruelty." Reference "being embowelled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female." About a decade later, electrocution was not deemed to be unconstitutional either, reference made to "something inhuman and barbarous,something more than the mere extinguishment of life. In 1910, however, the Supreme Court in a non-capital Eighth Amendment case did reference "general principles" not merely limited to the specific evils of its birth. In other words, the Eighth Amendment should not merely be seen as barring drawing and quarter etc. Thus, ear cropping and whipping might have been deemed okay in 1787, but not today.
We are told that in the electrocution case that the the death penalty itself is not a violation: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." This was not universally accepted even at the Founding. A small minority thought capital punishment itself was cruel and usual or simply not republican in nature. A somewhat great number would limit it to a small number of offenses, more limited than mere homicide. See also, the close 5-4 case in the 1940s when a first attempt to electrocute failed. A case apparently still good law today.
Since the 1940s, there were numerous capital cases, largely concerned with specific procedures. In the 1970s, it was clearly held that the death penalty was constitutional, but not in all cases -- there was a growing determination that (roughly speaking) only the "worse of the worst" should be executed, certain categories be eliminated in part by "mitigating" and "aggravating" factors decided by juries. We also had passing comments such as: "The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances."
Nonetheless, again, with dissent, there was an acceptance of the death penalty as such. Likewise, though the experience in other countries suggests the "necessity" unclear, our general penal system (including usage of solitary confinement) is accepted though certain limits are in place. What is "necessary" here still is different from what would be deemed true in 1791 (8th Amendment) or 1868 (14th Amendment). So, though I'm not aware of the Supreme Court expressly saying this, use of whipping posts [even in prison] would seem to be illegitimate.
We come to our current case (Bucklew v. Precythe). One thing that I didn't reference last time, but saw referenced, was that Justice Kennedy provided the swing vote to even allow this case to precede (March 20 stay). This makes the "message" laden majority opinion here rather unsurprising. So, again, we are reminded (which isn't the dispute) that executions need not be painless. Or, the constitutionality of the death penalty per se: "the judiciary bears no license to end a debate reserved for the people and their representatives." This is a basic sentiment of multiple justices here. Reference to "anti-death penalty" groups making things harder etc. The death penalty is constitutional, so (pun fitting) it must be possible to execute.*
The majority opinion cites originalist arguments to flesh out the meaning of the Eighth Amendment. Basically, "fiendish" out of date ("long disused") punishments. A probably telling reference is to Joseph Story saying it was likely unnecessary since no free government would inflict such gruesome punishments anyhow. And, in a way past opinions did not emphasize, it is even noted that traditional methods such as hanging clearly were painful, but that wasn't the intent. That is, it wasn't gratuitously painful. But, though special attention is given to the Scalia/Thomas originalist framework, including some specific "intent" requirement, that isn't necessary to decide the case. We might return to this though.
First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.As noted last time, the previous method of execution case (Glossip v. Gross) was somewhat unclear about the hard limits here because it challenged the dissent's argument that "torture" was being allowed. Note the two part test. Again, in this case, the majority challenges the substantial risk of severe pain claims, tossing in the general sentiment he is gaming the system anyways. This amounts to a talking past each other, since critics repeatedly basically assume they are allowing torture.
The later opinion states:
As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence.I find this a gratuitous reference. First, note the earlier reference that basically suggests any challenge is unlikely to fail (the Baze opinion is of this character too by appealing to history to show how legislatures over time provided more humane punishments on their own) given what is necessary to violate the Eighth Amendment. Thus, "unusual" basically amounts to punishments of yore. Cf. punishments declared unconstitutional in the 21st Century (e.g., executions for crimes committed by minors).
As noted by Justice Sotomayor's dissent in Glossip, precedent suggests that there is a hard bar to "barbaric" punishments without a priviso saying "except when necessary to carry out the death penalty." Again, the matter simply was not pressed, to be honest, but the point holds. Plus, what is this "well beyond" test with all the other dicta? Apparently, even if the state could execute some other way, a way that would substantially reduce pain, it might be okay. And, it would be the prisoner's responsibility to find that alternative, including one where clear usage could be shown (the nitrogen gas method not yet used).
Lethal injection usage has clear due process problems. But, the majority here (Kavanaugh concurring separately to assure us of his reasonableness, but still joining the opinion) is sick of it all. This is as much part of the opinion as specific aspects such as refusal to accept special cases (as applied challenges of this type by people with atypical medical conditions) might require special concerns -- this would more likely result in "pleading games." This runs counter to the sort of individualistic constitutional concerns we should follow here, the sorts the majority might use to reject certain "group" affirmative action policies.
Again, this doesn't bode well, though in other cases, one or more of the justices of the majority has shown more concern for the needs of criminal defendants.
===
I will add something to a possible response to the beginning of the penultimate paragraph. Oh? So, you actually really want to block the death penalty, right? Well, yes, and so do various people who are providing these challenges. At least, for their specific client. But, that is but one of three possible answers to the rejoinder.
Well, of the three that came to mind after writing this but was expressed somehow in these two essays. A somewhat related one is touched upon by Justice Sotomayor: challenges that fail quite often still are reasonable ones. And, that is the second thought: just because you might think the death penalty in some sense is constitutional (or acceptable) doesn't erase its problems. The need to be particularly careful. The need not to give the amount of breathing room this opinion at times does.
The final is that tinkering (to cite a famous line by Justice Blackmun) with the death penalty (and other hard stuff, and yes, I don't think this is always easy) reflects what limited humans are left doing. I am not too optimistic that nitrogen gas is the "solution" here to humane executions (granting that is not some sort of oxymoron), particularly since it is not used for the same purposes in other contexts. Consensual euthanasia with a medical professional not blocked by ethical concerns from taking part, for instance. Or, the few that suggest the firing squad. Or, maybe something else? Who the hell knows, but probably.
But, as in the past, maybe it is somehow better, at least for this specific defendant. For lethal injection has a lot of issues.
---
* The Constitution clearly has language that presupposed when written that capital punishment will occur though not each provision cited only applies to that (e.g., there are multiple ways a state can deprive a person of life in violation of due process). But, there is an assumption from some it somehow expressly gives the government a right to execute people. It does not.
It is particularly dubious that there is some compelling need to execute when so few people are these days. And, as noted, even back in the day, some did not think the death penalty was an appropriate usage of government power. Finally, over time, it clearly is possible that due process, the Eighth Amendment, equal protection principles or maybe something else makes the death penalty as applied in this country unconstitutional. The Double Jeopardy Clause references threats to "life or limb," quite clearly referencing a day when physical punishments were accepted.
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