Thursday, April 17, 2008

The Eighth Amendment

This week's news provides our topic for this evening.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Robert Barnes reports the following in today's Washington Post:
The Supreme Court ruled yesterday that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation's dormant death chambers. But the court's splintered reasoning seems likely to result in more challenges to the way capital punishment is administered in the United States.

In a 7 to 2 vote, the justices said the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.

"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John G. Roberts Jr.
It is evidently a complex ruling that raises many questions. I have only skimmed the articles and my head begins to swim. Between the Pope's visit and last night's debate, this has already vanished from sight. I don't see it in the headlines or on the blogs. Gone. Poof.

One might think this issue would be important. One would be in a highly rarefied minority.

So, I'm taking my The Complete Idiot's Guide™ to the U. S. Constitution by Tim Harper out for a spin.

I learn that the "and" in "cruel and unusual" is important because various rulings of the Supreme Court indicate that a punishment might be cruel OR unusual and pass muster, but not if it be both.

Needless to say, the Eighth Amendment has figured in debates over the death penalty in the past.  Drawing and quartering, beheading, burning alive, and disemboweling have rather consistently been deemed no-noes.  Pity; I have a little list for just such practices.  Oh well.

I find it especially interesting that in Furman v. Georgia (Findlaw discussion here and Wikipedia discussion here), a punishment that is "Degrading to human dignity--as in torture" is deemed unconstitutional.  The whole discussion in that decision concerning torture and that which fails to recognize human dignity is quite fascinating.

The day may yet come when the Supreme Court decides that capital punishment is intrinsically cruel and unusual, but that day is not yet.  One may simultaneously despair and hope when reading that "the standard for cruel and unusual 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'." (Harper, 147)

For now, execution by lethal injection may proceed.

Thought you should know.
--the BB


themethatisme said...

The quote from Harper is of despair. Where is the hope, where is the intent and action to evolve the standards?

Paul said...

TMTIM, I confess I found it far more despairing than hopeful. One would like to think that jurisprudence at the highest levels would aggressively push for evolution toward human decency and civilized behavior. Alas, one does not look to the SCOTUS for highest levels of jurisprudence, especially with appointments by today's knuckle-dragging Goopers.

We are, alas, a backward nation. Sigh. And we could be so much better than this.