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Talking It To Death

Yesterday, the Boston Globe had yet another editorial arguing against the death penalty. Their conceit this time is that it is always cruel and unusual, but the current method in vogue -- lethal injection -- is especially so.

This might come as a great surprise to many people, but I find myself disagreeing with the Boston Globe. (Shocking, isn't it?)

I have a rather heretical attitude towards the United States Constitution. I believe that it was written for everyone, and written in clear language that everyone should be able to understand. (The 2nd Amendment and its annoyingly vague language being the exception.) And to me, the Constitution is very clear about the death penalty: it allows it.

The Fifth Amendment explicitly authorizes the use of the death penalty:

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.

(Emphasis added)

To me, it's simple. The Amendment says no one shall be executed unless certain proprieties are observed. If they are indicted by a grand jury, have not been tried for the crime before, and given due process, then they can be executed.

It's simple logic. "You can't do B without first doing A" implies that if you do A, then you can do B. It's like saying "you can't go into the theatre without buying a ticket." The inference there is that if you do buy a ticket, you can go in.

So the Globe can't argue that capital punishment is in and of itself unconstitutional. The Fifth Amendment is annoyingly contradictory. So, they try to find a way around it -- and their chosen weapon is the Eighth Amendment.

Amendment VIII

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

(Again, emphasis added)

Now, here is where my notion about applying common sense and standard reading comprehension comes in. The Constitution clearly forbids "cruel and unusual punishments."

Let's take that word by word, shall we?

"Cruel." This online dictionary offers four definitions:

1. willfully or knowingly causing pain or distress to others. 2. enjoying the pain or distress of others: the cruel spectators of the gladiatorial contests. 3. causing or marked by great pain or distress: a cruel remark; a cruel affliction. 4. rigid; stern; strict; unrelentingly severe.

I don't think the Founding Fathers meant the fourth definition, as it's pretty clear that a death penalty is rigid, stern, strict, and unrelentingly severe, no matter how it's applied. So we'll set that one aside.

The third one has been the crux of the fight over capital punishment. Folks have been trying for centuries to find the least painful, most efficient way to execute people. Beheading by sword, hanging, guillotine, firing squad, electrocution, poison gas, and now lethal injection -- the idea has been to find the most efficient, least painful way of ending a human life. And I think that the current favored method -- putting the person to sleep with narcotics, then chemically stopping their heart -- is likely the most humane way yet devised.

The second definition has pretty much been eliminated with the end of public executions. Yes, some people still revel in the deaths of heinous criminals, but they have do to so from a distance.

The first definition, though, is tricky. Our system is -- at least in theory -- set up to avoid causing pain as much as possible. The "distress" element, though, is pretty hard to avoid. The years and years the average felon spends on death row before being executed has to be tremendously distressful -- but that's simply unavoidable.

The second part of the restrictions is a bit trickier. "Unusual." Back to the same dictionary,

not usual, common, or ordinary; uncommon in amount or degree; exceptional: an unusual sound; an unusual hobby; an unusual response.

This one is a bit tougher to parse. I've always taken it to mean that it should not be some spectacle, some bizarre form of punishment, even if expressed in some form of poetic justice. Feeding Jeffrey Dahmer to animals. Strapping Osama Bin Laden to an airplane and crashing it, or trapping him in a collapsing building. Knocking a stone wall over on top of gays. Blowing up Timothy McVeigh.

But here's the tricky part. "Cruel" and "unusual" are joined by "and." Technically, that means that a punishment could be cruel OR unusual, but not both. That means that in order to strike down a form of capital punishment, it has to fill both criteria.

There is an honest way to get rid of capital punishment -- simply pass laws forbidding it. The Constitution allows the death penalty, but does not mandate it. Many states have already foregone capital punishment, and the same principle holds on the federal level. All it takes is enough legislators to change the laws.

To attempt to bypass this process and try to legislate via the courts is no new tactic to the Left. That's how they've gotten gay marriage in Massachusetts, and in a horde of other areas. It's just so much easier to persuade a few judges than a majority of the people that you know better than they do.

It's just too bad that it does far more violence to the Constitution than lethal injection.


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Comments (30)

Wouldn't life in prison wit... (Below threshold)
U.P. Man:

Wouldn't life in prison without possibility of parole also be a death sentence?

To me that it is, I mean the state is just letting time do the killing.

I think the death sentence is appropriate where there is no doubt about the persons guilt.

Stone walls do not a prison... (Below threshold)

Stone walls do not a prison make.

Send in a padre every day. Oops, cruel and unusual.

Bring back the guillotine. ... (Below threshold)

Bring back the guillotine. Quick, easy, & very cost effective.

Line the prison wall with heads of murderers, rapists, pedophiles, & corporate embezzlers.

Bring back "Deterrent" into our capital punishment system.

I'm against the death penal... (Below threshold)

I'm against the death penalty - not because of "cruel and unusual," but because of inaccuracy. As far as I can tell, it's no more than 90% accurate, and that's just not good enough. Until we revamp our justice system to 99%+, the moral choice is to use a true "life sentence" for the worst crimes.

You can release someone from prison if you find out they didn't do the crime. That's much more difficult to do if they're already dead.

Where do you get your purpo... (Below threshold)

Where do you get your purported '90%' accuracy figure from?

Not 90%. No better than... (Below threshold)

Not 90%. No better than 90%.

I use that because I sat in a room full of prosecutors who had successfully prosecuted death penalty cases, and THEY agreed that, at minimum, one out of ten cases they won which ended in execution had been wrong - and had ended in the death of the wrong guy.

...and these were the prosecutors, not the defense attorneys.

I'm for the death penalty a... (Below threshold)

I'm for the death penalty and believe it needs to be made public again, like, having a gallows or guillotine on the courthouse lawn. Like a previous poster, I think the visual aid would be a tremendous crime deterrent, then we wouldn't hear any more bellyaching about "prison overcrowding," which always makes me wanna barf. I don't care if they're uncomfortable. It's not meant to be Club Med!

October 9...puhleeze! ... (Below threshold)

October 9...puhleeze!

1 out of 10 times the wrong person is executed? Pure Grade "A" BS!. And where you found a "roomful of prosecutors" is beyond me (a Russian Gulag?)

Out here in Kalifornia it takes approximately 20 years to execute someone. During that time EVERY aspect of the case is examined, re-examined, litagated, re-litigated, appealed and re-appealed!

Often, however, after all that time...and when a sufficient number of witnesses have died and a sufficient amount of evidence has been mis-placed we hear that "new evidence" has been found. THAT "new evidence" is what many use to claim an "innocent" person is being executed. The amaing thing is that it nearly always seems to take TWENTY YEARS for this "new evidence" to surface.

All that said...what really gets me is the argument that until we can know for 100% in EVERY case, we shouldn't execute anyone in ANY case...even if we are 100% certain about that particular case.

We should AT LEAST execute those where there is ZERO doubt...and SWIFTLY!

justrand:First, Octo... (Below threshold)

First, October 9 is the date.

Not my name.

Second, the meeting was part of an American Bar Association convention. When you have a few thousand lawyers in a building, getting a few dozen prosecutors who successfully handled death penalty cases is very easy.

Getting pardoned or released due to screwups is MUCH different than a prosecutor admitting they killed people who really didn't do the crime.

In other words, despite your ranting, every assumption you make is just plain wrong.

Wouldn't life in p... (Below threshold)
Wouldn't life in prison without possibility of parole also be a death sentence?

Yes, and I believe that once they get the actual death penalty abolished everywhere, the professional anti-capital-punishment activists will next turn their sights on the "life with no parole" sentence. They will probably use most of the same argumentw they used to argue against CP, namely, that LWP is cruel and unusual, it's not a deterrent, it "demeans" us as a society, etc.

Make it mandatory that befo... (Below threshold)

Make it mandatory that before every execution the public must watch one hour of a video of the victim's last breath of life.

Far too often the anti-death penalty advocates NEVER seem to get around to the reason these people recieved this judgement.

And bring back the firing squad!

...and, incidentally, I don... (Below threshold)

...and, incidentally, I don't ask for 100 percent. But you seem to be happy with nine out of ten, as long as SOMEONE dies.

You might also note that most of the recent reverses have been on concrete evidence, like DNA tests, which were not widely available in the past.

"1 out of 10 times the w... (Below threshold)
Wide Stance GOP:

"1 out of 10 times the wrong person is executed? Pure Grade "A" BS!"

Yeah Justrand, to a barbarian like you. It's a pity that you haven't been wrongly convicted & executed, just so you'd know what it feels like to be hauled of & executed for a crime that you did not commit.

Trackbacked by The Thunder ... (Below threshold)

Trackbacked by The Thunder Run - Web Reconnaissance for 10/09/2007
A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.

What is prohibited is punis... (Below threshold)

What is prohibited is punishment which is cruel AND unusual, not cruel OR unusual.

We do not have anything to ... (Below threshold)

We do not have anything to judge the accuracy of the legal system against, except exoneration for rape by DNA evidence.

100th exoneration occurred in January 2002, 13 years after the first exoneration. It took just more than five years for the number to double.


By that standard, the death penalty is a pretty permanent solution to a pretty error ridden legal system.


even at that, the innocent man still spent an average of 12 years in prison before they were exonerated. There is also the race issue. Of the 208 DNA exoneration:

125 African Americans
58 Caucasians
19 Latinos
1 Asian American
5 whose race is unknown

Which does not follow either national demographics or arrest demographics for the offense of rape.

If death penalty cases are even close to this error ridden, that's a real problem.

Several death penalty and l... (Below threshold)

Several death penalty and life sentences have been overturned and murderers turned loose on the streets to kill again based on DNA evidence. DNA evidence that had been accessed and contaminated. By who was it contaminated? The very slick crooks trying to overturn all death penalty sentences. You know it's true so admit it. The rush of cases slowed to a crawl when local courts figured out what was happening and secured the evidence. Now you have to actually work in the court house to contaminate the evidence and it's happening a lot less than in the past.

I don't think the ... (Below threshold)
I don't think the Founding Fathers meant

It's pretty easy to see exactly what the FFs had in mind, actually. First of all, these questions do belong in the courts:

. Federalist Paper #32 regarding the power of national courts to construe the spirit and meaning of the constitution.

and that world opinion does matter:

. Federalist #62 that it useful in our arranging our laws to look to the example of other nations to determine what is just and appropriate.

and finally, that we must be as careful as possible to ensure completely equal treatment under the law

. Federalist #57.

The very slick cro... (Below threshold)
The very slick crooks trying to overturn all death penalty sentences. You know it's true so admit it.

You, of course, offer no evidence for your assertions--as usual. No links, no cred--you're dead.

kennerly, you haven't had a... (Below threshold)
John Irving:

kennerly, you haven't had any cred for a while. Jay Tea summed up the constitutionality of the death penalty rather well, it's explictly mentioned.

kennerly, you have... (Below threshold)
kennerly, you haven't had any cred for a while. Jay Tea summed up the constitutionality of the death penalty rather well, it's explictly mentioned.

Again, no evidence. Just blather.

Yep, kennerly, you're all b... (Below threshold)
John Irving:

Yep, kennerly, you're all blather. You linked to USA Today and the Innocence Project, hardly Constitutional scholars. And yet, for all your verbosity, you have yet to read the relevant portions of the Constitution that Jay Tea quotes in the article, at the top of the page, of the thread you're posting your crap in.

DNA is nice. But it doesn'... (Below threshold)

DNA is nice. But it doesn't cover everything. It does work well in cases with rape since a nice big sample of DNA (in a form not usually lying around) is often found.

However, most of the DNA exonerations are for older cases where testable evidence is still available. Today, DNA testing is standard for the investigation so these types of cases either don't even reach indictment or they help the defense win at trial.

My biggest problem with eliminating the death penalty is the message it sends -- a victim's life is worth less than a killer's life. Not very just or equitable.

Didn't Saddam Hussein prefe... (Below threshold)
PETN Sandwich:

Didn't Saddam Hussein prefer to be executed by a firing squad, a soldier's death, rather than being hanged like a common criminal?

LenS:Funny, the mess... (Below threshold)

Funny, the message I get from the death penalty (the way we do it right now) is that it's okay to kill someone for vengeance, even if you're not really 100% sure they did it.

You also have the the very clear underlying message that the state has the right to kill someone as long as they don't make mistakes that are obvious enough to notice...

Another consideration: cops who lie to get a conviction. In one case (from my home town), a guy was convicted of murder and sent to Death Row due to his fingerprint being found on the OUTSIDE of a sliding glass door of a girl who had been stabbed to death. He had a previous conviction for being a peeping tom. The police officer in charge of the forensic evidence claimed that the print was put on the door at the time of the murder - which isn't something that forensics can establish, according to the FBI. Oddly enough, the knife used for the murder didn't match any owned by the suspect or the victim.

Also oddly enough, the victim had been having an affair with a well-off local businessman, and his (known crazy) daughter had threatened the victim if she didn't stay away from her daddy. The businessman owned a set of knives which matched the one used for the murder, and one was missing (a reporter found this out- not the police).

Eventually, the "murderer" was released, but the crazy daughter just disappeared into a mental hospital - and no charges were ever filed on the case again...

Tell me again how this death penalty thing is supposed to work, because this (and a LOT of other cases) show that it isn't, in what I would call a reliable form.

Is there a strict construct... (Below threshold)
Just John:

Is there a strict constructionist issue here? Is the constitution to be taken in the context of when it was written? And under that light wouldn't any more modern methods of execution be necessarily "unusual"? What would the framers have thought of electrocution or lethal injection? Wouldn't these have been considered "crueal and unusual in the 1780s? Would that not make these methods unconstitutional now?

Is there a strict ... (Below threshold)
Is there a strict constructionist issue here? Is the constitution to be taken in the context of when it was written?

You ask an interesting question in general, worthy of its own string.

At root is this question: how exactly do you apply the thinking and world experiences of 4mph horsemen to the 300 mph world?

Thomas Jefferson actually foresaw this problem and advocated tearing up the constitution and starting over every generation. Why, he reasoned, should you be bound by a set of rule that you did not specifically agree to and which you had no hand in shaping?

Actually, I'm a whole constitutionalist. Take for instance, the so called strict constitutionalists who claim that if it's not in the text you don't have that right. Whole constitutionalist would point to the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
My biggest problem... (Below threshold)
My biggest problem with eliminating the death penalty is the message it sends -- a victim's life is worth less than a killer's life. Not very just or equitable.

OTOH, it's pretty tough to live with a capital mistake made by the courts in your name.

Since I believe there are many fates worse than death, I'm not sure execution isn't letting them off easy anyway.

I wonder if just his knowing he's in there forever while we're all out here isn't punishment enough.

you have yet to re... (Below threshold)
you have yet to read the relevant portions of the Constitution that Jay Tea quotes in the article

Actually, I'm well versed in the language of the Constitution as well as the Federalist and Antifederalist Papers and the published proceeding of the Constitutional Convention.

The 2nd Amendment has alway... (Below threshold)

The 2nd Amendment has always been tagged as vague and worse, but those characterizations are due more to ignorance of the English language than anything else.

Several years ago an English language expert parsed the 2nd Amendment, and the results have been published. It can be found HERE on my blog, with links to a page of the original article.






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