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Jay Tea, Super Genius

It's not often I can claim with a straight face to be more of a Constitutional scholar than a sitting Supreme Court Justice, but today I am doing that.

Associate Justice John Paul Stevens, who will turn 88 this weekend, says that he has changed his mind and now considers capital punishment to be unconstitutional, regardless of the offense or the circumstances of the execution.

Apparently Justice Stevens has misplaced his copy of the Constitution. In particular, the 5th Amendment of the Bill of Rights: (emphasis added)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I lack a legal degree, but it seems to me that if the Constitution explicitly puts limits on capital punishment, then it implicitly allows it. In other words, if the Constitution says "you can't execute someone in these circumstances," it means that "you can if you do this." If the Constitution wanted to absolutely ban the death penalty, then the Founding Fathers would have not carved out exceptions.

Justice Stevens seems to base his theory on the 8th Amendment, here in its entirety (emphasis added):

xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

To Justice Stevens' reasoning (and that of many others), the death penalty is by its nature cruel and unusual, as our society has evolved to the point where "cruel and unusual" now encompasses any infliction of the death penalty, so it must go.

I beg to differ.

Justice Stevens is falling victim to the "perfection fallacy," also known as "the perfect is the enemy of the good." Over the centuries, our methods of executing those whom a jury has found worthy of the ultimate sanction have continually evolved, moving closer and closer to as painless as possible. And that's a good thing -- I am not the vindictive sort; as long as the guilty person is killed, I am satisfied. I have no vicious fantasies about slow, painful, exotic punishments for those who commit the most heinous deeds.

Lethal injection is, from what we understand, is pretty painless. It's a blend of drugs that render the person unconscious, then stop their heart and breathing. But there's no absolute guarantee that they don't feel any pain, and that's enough to get a lot of people to want to end that as well.

I find myself hoping that the injection is painless, but I would not be heartbroken if it wasn't. To me, it falls well within the "close enough for government work" standard.

If people really want to abolish the death penalty, let them take it up in the several states and the United States Congress and get them to do so. Or, if they're really ambitious, get a Constitutional amendment passed to do it all in one swell foop.

But this back-door scheming and legal wrangling and judicial rewriting of the Constitution to fit their agendas is thoroughly disgusting.


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Comments (23)

Killing a partially-deliver... (Below threshold)

Killing a partially-delivered infant? A-OK. Killing someone caught raping and murdering a child? No no no. Whatever gets you through the day, I guess.

Well, I would like to know ... (Below threshold)
LaMedusa:

Well, I would like to know what happened, other than maybe bumping his head, that made him suddenly come to this conclusion.

Here is pretty thorough breakdown of the process of lethal injection, and what is involved. This process of ending someone's life for any heinous crime inflicted on the prisoner's victim(s) seems pretty civil compared to what they did to get there. If due process is what Justice Stevens is concerned about, he needs to cough up specific examples or call it a day.

Stevens is a genius with a ... (Below threshold)
yetanotherjohn:

Stevens is a genius with a capital J. How dare you question his wisdom derived from navel gazing.

But this back-door schem... (Below threshold)
P. Bunyan:

But this back-door scheming and legal wrangling and judicial rewriting of the Constitution to fit their agendas is thoroughly disgusting.

It's called fascism. It's a defining characteristic of the contemporary American Left Wing.

Shouldn't that be "Jay T. C... (Below threshold)
jpm100:

Shouldn't that be "Jay T. Coyote, Super Genious"?

Lethal injection i... (Below threshold)
Mac Lorry:
Lethal injection is, from what we understand, is pretty painless. It's a blend of drugs that render the person unconscious, then stop their heart and breathing. But there's no absolute guarantee that they don't feel any pain, and that's enough to get a lot of people to want to end that as well.

We've had a scientifically provable means of pain free execution for decades, but to my knowledge, it's no longer used in the U.S. It's the firing squad using a head shot rather than a heart shot.

Nerve impulses travel at around 300 f/s, but the bullet from a suitable rifle travels at more than 2,500 f/s. The brain itself doesn't perceive pain, so a head shot destroys the brain before the nerve impulses from the bullet's penetration can reach the brain. By the time those impulses arrive at their destination there's no functioning brain left to perceive them, and thus, the method is pain free.

So why don't we use this method? Well, it's not pain free for society. It's kind of messy and extremely violent. It tweaks the sensibilities of society much more than just putting down a condemned prisoner like the vet put down your loved pet at the end of it's health span.

Those who oppose the death penalty should apply pressure on state lawmakers to authorize only those methods that are scientifically provable to be pain free forms of executions. The pain of inserting the needles into a person's body would disqualify Lethal injection. Why would opponents to the death penalty do this? Because this messy and extremely violent method will attract many others to your side of the issue.

Those who support the death penalty should also put pressure on state lawmakers to make the firing squad the only means of execution. If you really believe in the deterrent value of capital punishment, this messy and extremely violent method will surly enhance that deterrence.

The firing squad is a win, win, win idea. Opponents win more support, law and order types win with more deterrence, and condemned prisoners win by getting a truly pain free exit from this life. What's not to like?

They need a painless lethal... (Below threshold)
Chuckg:

They need a painless lethal injection? How's about the same one that the vet uses to put down sick animals? Hey, how's about a morphine overdose? Heck, go to the evidence room and get some uncut heroin. The guy will be dead before you get the needle out of his arm, and he damn sure won't be feeling anything painful, will he?

What prevents all forms of ... (Below threshold)
Mac Lorry:

What prevents all forms of lethal injection from being pain free is the pain of the initial injection regardless of what's in the injection. Lets use the only proven pain free method.

It has always astonished me... (Below threshold)
irongrampa:

It has always astonished me that a document written in black and white can be read in so many shades of grey.

I agree 100% - if the death... (Below threshold)
Bob:

I agree 100% - if the death penalty is to be abolished, it should be done by legislation, not fiat. In Illinois, the last two governors (the one who's in jail and the one who is still free) have effectively abolished the death penalty by, in the first instance, commuting the sentences of everyone on death row, and, in the second instance, by ordering an indefinite moratorium on death sentences. Neither governor, by the way, made abolishing the death penalty a campaign platform issue; they just sprung their anti-capital punishment ideas on the electorate after they were in office.

Wonder what Jack Murtha's t... (Below threshold)
GarandFan Author Profile Page:

Wonder what Jack Murtha's take on this is. I mean if John McCain is too old at 72(?)to be making decisions, isn't the good justice too old at 88?

I don't care if he's my gra... (Below threshold)
Scrapiron:

I don't care if he's my grandpa or your grandpa, at 88 years old he's not wrapped too tight and only mouths what someone tells him to mouth. Ask him the same question tomorrow and get a different answer. That's not an insult but just a result of age. Too bad people in such high postitons don't have the 'brains' left to quit.

jpm100 (#5):You be... (Below threshold)

jpm100 (#5):

You beat me to it! ;-)

If the anti-death penalty a... (Below threshold)
Geoffrey Britain:

If the anti-death penalty advocates achieve their goal, how long till they decide that life-in-prison is cruel and unusual punishment?

Those who oppose the death penalty ignore it's attendant consequence: justice abandoned.

In addition, the Fifth Amen... (Below threshold)
Mikey NTH:

In addition, the Fifth Amendment was adopted at the same time as the Eighth Amendment, so the argumant that the later one cancels out the earlier one cannot be used here.

The military uses high alti... (Below threshold)
cactus:

The military uses high altitude chambers to train crews for high altitude flight. When the air is pumped out you may or may not feel tingling in your fingers, but you just lose consciousness. Do it long enough and you are dead. No pain. no mess. You could even have a soft lounger with the guest-of-honor's favorite music playing.

cruel and unusual != pain f... (Below threshold)
ke_future:

cruel and unusual != pain free

'nough said.

It's the transition to the ... (Below threshold)
Mac Lorry:

It's the transition to the rarified air that may be painful. In all forms of execution it's the transition that may be painful. Freezing to death isn't painful, but the initial stages where the body is trying to stay warm are quite unpleasant. A high velocity bullet through the brain gets around that problem because the brain is destroyed before the nerve impulses from the bullet's penetration can reach it. Besides, bullets are cheap and plentiful.

cruel and unusual ... (Below threshold)
Mac Lorry:
cruel and unusual != pain free

That's true, but so is the opposite. Pain free !=cruel and unusual. Thus, no going to the courts with that claim. What, you think shooting is too good for them, or are you just squeamish about the mess?

"xcessive bail shall not be... (Below threshold)
Knightbrigade:

"xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

To liberals withholding Jello treats counts as "CRUEL and UNUSUAL PUNISHMENT"!!!


"But this back-door scheming and legal wrangling and judicial rewriting of the Constitution to fit their agendas is thoroughly disgusting."

Of course it is, but this is the only way liberalism can be implemented.
Normal average Americans would NEVER go for a liberal stance on ANY issue, once it was CLEARLY explained.

Jay Tea,Ever consi... (Below threshold)

Jay Tea,

Ever consider law school?

With all due respect, Main ... (Below threshold)

With all due respect, Main Page Editor Most High, we really must set the bar for "Super Genius" just a tad bit higher than "smarter than Mr. Justice Stevens," whose principal intellectual achievement in his tenure on the Court has been fogging the mirror they stick in front of him before they let him vote.

Otherwise, the title is utterly devoid of meaning - it would be like saying, "more truthful than Barack Obama."

Mr. Addison.Tsk, t... (Below threshold)

Mr. Addison.

Tsk, tsk, tsk.

Your education is sadly, sadly lacking.

As not one but TWO commenters pointed out, the title was a reference to the classic "Road Runner" cartoons -- more specifically, the Wile E. Coyote and his calling cards. The cards proclaimed his lofty intellect, but the repeated abject failure showed that mere intelligence is not a survival trait -- an observation that I have lived my whole life demonstrating.

Must you so flagrantly demonstrate your ignorance and woefully deprived upbringing, sir?

J.




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