What Bucklew Doesn't Say

|The Volokh Conspiracy |

Earlier this week, the Supreme Court decided Bucklew v. Precythe, a case about the meaning of the Cruel and Unusual Punishments clause in the Eighth Amendment. I am passing along some thoughts on the case from John Stinneford, a professor of law at the University of Florida and a leading scholar on the original understanding of the Eighth Amendment. His article The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation (published a decade ago in the Northwestern Law Review) was cited in Justice Gorsuch's majority opinion. Here are John's thoughts:

Two days ago the Supreme Court decided Bucklew v. Precythe, a case involving a constitutional challenge to Missouri's lethal injection protocol.The main question in Bucklew was whether a defendant who raises an "as applied" challenge to a method of execution must identify a feasible alternative method of execution that significantly reduces the chance of unnecessary pain. (I call this the "pick your poison" requirement.)

The idea behind the "pick your poison" requirement is that a defendant should not be able to escape execution altogether by showing that the execution method chosen by the government is cruel and unusual. The requirement has no basis in the text of the Constitution, however, nor in any precedent prior to 2008. Rather, it arose as a response to efforts by death penalty abolitionists to force states to stop imposing the death penalty by making painless executions impossible. Abolitionists pressured drug manufacturers to stop selling barbiturates to states for use in executions. This left states with the choice between reverting to obviously violent methods of execution, such as hanging or the firing squad; or coming up with experimental lethal injection protocols that could be challenged as unduly risky; or ceasing to impose the death penalty. Abolitionists hoped that states would take the third option because the first two were too politically costly or constitutionally problematic, resulting in de facto abolition of the death penalty. The Supreme Court blocked this effort by requiring condemned prisoners who wish to challenge a method of execution to propose a feasible method of execution they considered acceptable. By forcing condemned offenders rather than state officials to solve the dilemma arising from the unavailability of barbiturates, the Court checked the movement toward de facto abolition – but only by adopting a constitutional standard that was ungrounded in text and history and undeniably results-oriented.

Bucklew argued that the "pick your poison" requirement should not apply to him because he was not raising a facial challenge to Missouri's lethal injection protocol. (Missouri uses a one-drug protocol of pentobarbital that appears to involve a much lower risk of suffering than the three-drug protocol used in many states. Since the three-drug protocol had previously been upheld in Baze v. Rees and Glossip v. Gross, a facial challenge to the less-risky one-drug protocol would have had virtually no chance of success.) Bucklew argued that the protocol was unconstitutional as applied to him because he suffers from a very rare medical condition that heightens the risk of suffering as compared to the risk faced by most condemned offenders. Because Bucklew's condition was so rare, he argued, the Court could create an exception to the "pick your poison" requirement for him without risking de facto abolition of the death penalty.

The Court rejected Bucklew's argument for a variety of reasons that I will not go into here. Instead, I will focus on the Court's effort to defend the "pick your poison" requirement from the charge that it is results-oriented and lacks a basis in constitutional text and history. This effort was ultimately unsuccessful, but it points to important changes in the Court's approach to the original meaning of the Cruel and Unusual Punishments Clause.

The Bucklew Court sought to ground the "pick your poison" requirement in the "original and historical understanding of the Eighth Amendment." The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court. But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause. Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional. In this regard, Bucklew is an admirably modest opinion.

To understand Bucklew's modesty, one needs to know a bit about our prior knowledge of the original meaning of the Cruel and Unusual Punishments Clause. Justice Scalia famously claimed that the Cruel and Unusual Punishments Clause was originally understood to prohibit those punishments (and only those punishments) that violated the moral standards of 1790. The Clause contained no principle of development, he claimed, and prohibited only barbarous methods of punishment, not punishments that were disproportionate to the offense. Justices Scalia and Thomas also argued that the word "cruel" covers only those punishments that are inflicted for the very purpose of causing needless pain. Virtually all members of the Court, originalist and non-originalist alike, ignored the word "unusual."

Recent scholarship (including my own) has shown that the original meaning of the Cruel and Unusual Punishments Clause is very different, in some ways, from the claims of Justices Scalia and Thomas. Perhaps most importantly, it has uncovered the original meaning of the word "unusual."

In the context of the Eighth Amendment, "unusual" means "contrary to long usage," not "rare" or "uncommon." It derives conceptually from the common law. Although today people often describe the common law as judge-made law, it was traditionally considered a form of customary law – the law of "long use and custom." Its authority did not derive from any claimed judicial lawmaking power. Rather, it derived from the idea that customary practices that are used over a very long period of time are presumptively just, reasonable, and enjoy the consent of the people – for if they lacked these qualities, they would fall out of usage. Because longstanding customs are presumptively reasonable, they can appropriately be enforced as law. The job of the common law judge is to identify longstanding customs and apply them in new cases.

Over time, the normative power of "long usage" gave rise to the idea of rights enforceable against the state. The idea was that even the sovereign lacked authority to violate fundamental rights established through long usage. This was the key idea underlying the American Revolution as well as the Bill of Rights. In this light, it becomes clear why the Eighth Amendment prohibits "cruel and unusual" – and not just "cruel" – punishments. Under the common law ideology that underlies the Eighth Amendment, the most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage. If it is significantly harsher than the tradition will permit, it is cruel and unusual.

One corollary to the notion of "long usage" is that if a once-traditional punishment ceases to be used for a long period of time, it is no longer part of the tradition. As Edward Coke wrote in the 17thcentury, "Custom loses its being if usage fails." Thus, contrary to Justice Scalia's claim, the Cruel and Unusual Punishments Clause does not tie us to the specific moral standards of 1790. If a punishment falls out of usage for multiple generations, it loses its presumption of reasonableness. If Congress sought to reinstitute the death penalty for a crime like counterfeiting, or to reimpose methods of punishment like branding or bodily mutilation, such punishments could be challenged as cruel and unusual despite the fact that they were acceptable in 1790 – for they have been disused for so long that they are no longer part of the tradition.

The Bucklew Court gestures toward the original meaning of the Cruel and Unusual Punishments Clause without ever fully articulating it. The Court's reticence is particularly apparent when it comes to the word "unusual." The Court never says that "unusual" means "contrary to long usage," nor does it hold that the primary purpose of the Clause is to prevent cruel innovation. Instead, it focuses on the corollary to the original meaning of unusual discussed above. The Court repeatedly describes an "unusual" punishment as one that has fallen out of usage for a long time. See, e.g., slip op. at *9 ("these methods had long fallen out of use and so had become "unusual"); slip op. at *12, (describing "long disused (unusual) forms of punishment").

At first glance, this approach to the original meaning of "unusual" seems strange. It would have been simpler for the Court to focus on the primary meaning of the word. The Court could have resolved the case quite easily by saying that a cruel and unusual punishment is a new punishment that is significantly harsher than the punishments it replaces, and that although lethal injection by pentobarbital is new, it does not pose a significantly greater risk of excruciating pain than traditional methods like hanging. Therefore, it is not cruel and unusual.

As the paragraph above indicates, had the Bucklew Court focused on the primary meaning of "unusual," it would have been able to draw on a relatively objective and determinate standard for measuring the cruelty of Missouri's lethal injection protocol: longstanding prior practice. Such a standard is notably missing from the Bucklew opinion. The Court notes that determining cruelty is a comparative process: for example, hanging was comparatively less cruel than long-disused punishments that "superadded" terror, pain, or humiliation to the process. Thus it was constitutionally acceptable even though it involved a significant risk of pain. Similarly, the Court held, the constitutionality of Missouri's lethal injection protocol must be determined by comparing it to some other punishment method. But rather than comparing the protocol to traditional methods of execution, the Bucklew Court relies on the "pick your poison" requirement, holding that the condemned offender himself should identify an acceptable (and feasible) method of execution to use as a point of comparison.

This requirement is obviously untethered from any constitutional standard as to what constitutes a cruel and unusual punishment. What if the only "feasible" alternatives are themselves unjustly harsh in comparison to traditional methods of punishment? In such a situation, the "pick your poison" requirement would force offenders to choose between two unconstitutional alternatives as the price of challenging the constitutionality of a method of execution. This result is precisely the opposite of what the Cruel and Unusual Punishments Clause requires. Let's hope that in a future case, the Court goes further and recognizes the full original meaning of "unusual." The point of comparison should be traditional punishments that have not fallen out of the tradition, not other "feasible" punishments whose constitutionality has not been established. The Constitution is strongest when judicial rulings are based on standards derived from the text and not their own invented requirements.

On the other hand, the Bucklew Court's recognition that punishments can become unusual if they suffer long disuse is a hopeful sign for the future. One of the primary objections to an originalist approach to the Cruel and Unusual Punishments Clause is that it would force courts to uphold punishments like branding and bodily mutilation because they were used in 1790. This objection is so powerful that it led Justice Scalia himself, early in his career on the Supreme Court, to call himself a "fainthearted originalist" and to express doubt as to whether – should push come to shove – he could actually enforce what he considered the original meaning of the Clause. Once the Court recognizes that the Clause does contain a principle of legal development – albeit one that operates very differently from the "evolving standards of decency test" – this objection evaporates. Execution for minor crimes, and the use of punishments like mutilation and branding, are no longer part of our tradition, and thus would not have to be automatically approved should the government try to revive them. Originalists need no longer be faint-hearted.

One last point about what Bucklew doesn't say: The Court flirts with the idea, long propounded by Justices Thomas and Scalia, that a punishment can only be cruel if it is inflicted for the very purpose of causing needless pain—but fortunately refrains from making this part of its holding. As a matter of original understanding, "cruel" means "unjustly harsh," not "motivated by cruel intent." Were the Court to impose a cruel intent requirement, it would be plunged back into the morass of subjectivity from which the original meaning of the Clause holds the promise of delivering it—and the constitutional protections provided by the Eighth Amendment would be substantially weakened.

NEXT: Brickbat: Fathers' Rights

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  1. From your perspective, does it make a difference if a punishment “fell” out of use, or was barred for a while by judicial fiat? Arguably the latter doesn’t represent an organic change in practice, but just something imposed.

    It seems a bit odd that the Court might bar a punishment for reasons it later decides were invalid, and then use that period during which it was barred as an excuse to continue barring it. (Rather like Heller’s in common use standard, in light of the fact that what’s in common use has been warped by a 70 year refusal of the Court to uphold the amendment.)

    Incidentally, I’ve long understood “cruel and unusual” to be an effort to prevent judges from getting inventive, not to regulate what punishments can be imposed by law. But I guess it’s not surprising that the judiciary would be reluctant to recognize that a particular clause was aimed at reining in judicial, not legislative, abuses.

    1. From the past post on constitutional liquidation, a change in practice need not be organic to become a change in understanding.

      Not really reigning in much when judges already aren’t getting very inventive. And your long understanding with nary a mention of the Founders sounds a lot like living constitutionalism to me!

      1. It’s just an off hand comment, I didn’t see the need to go into my (originalist) basis for thinking it meant that.

        But here’s an essay demonstrating that I’m not alone in reading it that way.

        1. I can’t read that from work, but I certainly can’t fault you if you were just eliding some homework for the sake of brevity.

          1. To summarize, the “cruel and unusual” language was adopted from English law, where it was a reaction to the Star chambers’ imposition of cruel punishments with no common law or statutory basis. It was not understood, in English law, anyway, as prohibiting a punishment on the basis of cruelty if it was actually normal practice already, or specified in a properly enacted statute.

            I understand the adoption of the term in the Bill of Rights as incorporating into the Constitution that bit of longstanding English law, in much the same way as the right to jury trials was incorporated.

            1. For once, that actually tracks with my understanding as well.
              Way back in my Law and Society cours in high school, cruel and unusual was the example given of the concept of term of art – it isn’t actually about being cruel or about being unusual, but more about being generally deviant from the standards of the day.

              I’d imagine you and I differ as to whether standards of the day is able to change as the standards of the day do, or whether it’s locking in the standards of the time of ratification.

              But I also don’t see much about the focus being on judicially innovative punishments either; perhaps because in operation the judiciary isn’t the driver of such things. (see, e.g., and somewhat tongue in cheek ducking)

            2. Since we have no Star Chamber, and no Constitutional mechanism for creating one, the argument you link to strikes me as nonsense.

              Besides, if that’s what they wanted, the framers could have barred punishments “not authorized by statute” or the like, rather than using the language they chose.

              Look around in history selectively enough and you can find anything. That’s the originalist method.

              1. Besides, if that’s what they wanted, the framers could have barred punishments “not authorized by statute”

                Why would they have done that when almost all of the criminal law was common law not statute ? The framers framed using the frame they were in – punishments largely imposed by judges under the common law. The Star Chamber was a wild deviation from that.

                bernard’s comment does indicate to me a significant change in usage in the last couple of hundred years. These days we would tend to regard 1975 as distant in time. But the idea that something that had been used regularly for a couple of hundred years, and had fallen into disuse for forty years, might already be “contrary to long usage” would have struck 18th century folk as ridiculous. Things moved more slowly then, and customs changed slowly. So the notion that the founders would have regarded the English Bill of Rights as ancient irrelevant history is unlikely.

              2. Why would they have used your language, when there was already an existing term of art that meant it?

                We currently have statutory sentencing guidelines to bar the sort of out of the blue penalties the 8th amendment was meant to bar, but that wasn’t the case at the time the Bill of Rights was adopted; A judge getting inventive was a real possibility at that time.

                I think the standards of the day are certainly capable of changing, this is one of those cases where the Constitution mandates a judgment call, and judgment calls are made to modern views.

                What I question is the idea that the judiciary represents a better measurement of the standards of the day than the legislature.

              3. That’s the originalist method.

                So long as originalism remains younger, less popular, and less insightful than Kim Kardashian, I do not expect most Americans to respect it any more than they respect the Kardashians.

                1. I’m not sure I buy all this. From the majority opinion:

                  Patrick Henry, for one, warned that
                  unless the Constitution was amended to prohibit “cruel
                  and unusual punishments,” Congress would be free to
                  inflict “tortures” and “barbarous” punishments.

                  Note that the concern was about Congress, not the courts.

                  As to the legislature being better placed to measure the standards, I think that is just wrong. It might be true if there were no relevant constitutional limit, but there is. The behavior of legislators when the popular will conflicts with those limits will often differ from the behavior of judges whose duty, imperfectly fulfilled as it may often be, is to understand and respect the limits.

                  1. Note that Patrick Henry’s concern was about Congress. An example in your favor, but not conclusive.

                    I think legislatures are a better indication of “evolving standards”, because they’re designed to be responsive to public opinion. The judiciary should be very leery indeed of citing public opinion as an excuse to override the legislature.

                    1. But that implies that the Eighth Amendment doesn’t bind Congress or state legislatures.

                      I realize you think that’s just fine, but it’s not an idea that, AFAIK, has been taken up by the courts.

                      And don’t give your usual, “Of course not, because they are the courts.” I don’t think they deny it applies to the judiciary as well.

                    2. They’re ok with things applying to the judiciary, too, (So long as they don’t really apply to the judiciary in practice.) but they’re pretty resistant to admitting that something like the 8th amendment was actually aimed at the judiciary.

                    3. Again, the Bellmore Principle comes into play:

                      Disagreement with Brett Bellmore is always in bad faith, for some devious purpose.

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  2. It does not seem logical that the Amendment serves as a 1-way ratchet for all punishments. For instance, I do not think one can clearly read in that is would be unconstitutional to re-instate capital punishment for rape, desertion, attempted murder, or any other major crime. If if that punishment had fallen out of use for that particular crime for quite a while. If that had been the intent, the language would clearly be different. Unusual means unusual for any crime. If that were not the case, the Amendment would have banned many crimes from being invented. There was no tradition of anti-drug laws at the federal level when those laws were invented. Is that a proper basis for constitutionally commuting all such violations to a small fine? No, there are other bases to think the law as a whole could be constitutionally suspect, but not the punishment part.

    1. The Founders (and us nowadays to some extent) felt that civilizations progressed and became progressively less savage over time. That ratchet understanding of the 8th would seem to capture that notion.

      1. Some may have. Others perceived their time as a fleeting moment and that the masses are/were liable to crush any enlightenment at any time and return us to an era where life was nasty, brutish, and short. Many constantly feared things like the French Revolution which is why the structure of the government is so as to try and prevent that as much as pieces of paper possibly can. Perhaps there are reasons to think that interpretation is correct, but its seems odd to suppose optimism into one part of a document that is fairly pessimistic about the nature of men, particularly those in government. In that light I think the amendment is probably most focused on arbitrary punishments ordered by capricious executives/judges and hastily passed legislation enacted during wartime/moral panics (which would be carried out by a zealous and enthusiastic executive).

      2. Also, I am not entirely convinced that it is a one-way ratchet. Imagine a scenario where a movement sweeps the nation and 40 states pass laws reinstating the punishment within the period it takes a case to move through the courts.

        In such a situation, I think the states would have a colorable argument that the punishment was no longer “unusual”.

        1. Or maybe the judiciary would just bull a head trampling all those states under their hobnailed boots, like they did with SSM.

  3. The “ratchet” idea is interesting, and to me it applies to a specific Gorsuch holding — that a convict is not entitled to a “painless” execution.

    For more than two centuries, execution methods have primarily changed on the basis of, and arguments for the death penalty have in some cases turned on, the humanitarian concern.

    That is, the guillotine came into use because it was supposedly instant. Hangmen improved their technique to try to instantly break necks instead of having the prisoner thrash around and suffocate. The electric chair was supposed to be more “humane” than hanging, and lethal injection more “humane” than the electric chair or the gas chamber.

    I don’t have any problem with “not entitled to a painless death” (except to the extent that I oppose capital punishment as such), but it does seem to me that there is a long history and a long holding that executions should be as painless as reasonably possible, and that a departure from that history/holding would be “unusual.”

    1. I’d agree with that “as reasonably possible”. It’s a punishment, there’s no constitutional issue if the execution is incidentally uncomfortable or painful. I’ve been through some fairly painful medical procedures in my life, that likely render the discomfort anticipated in Bucklew trivial. And I just endured them, they were necessary.

      Man up, guy: You murdered somebody, don’t demand that your execution be a walk in the park. Just be happy you’re not being tortured to death.

      if it weren’t for the strenuous efforts of capitol punishment opponents, determined to make execution so horrific that it becomes politically impossible, the guy would get an even less uncomfortable execution.

      1. Actually, he is being tortured to death.

        1. No, bernard, he’s not. And any attempt to say so demeans and diminishes the suffering of true torture victims.

        2. No, he’s being executed in a manner which he claims won’t be completely comfortable.

          Being tortured to death would be something like being fed into a wood chipper feet first, not being given a fatal dose of a barbiturate that would render you unconscious in moments, but you might have a few seconds of a suffocating sensation.

          Pentobarbital is used by the Humane society for euthanizing animals. You want to claim they’re being tortured to death?

          1. he’s being executed in a manner which he claims won’t be completely comfortable.

            You may want to read the dissent.

            1. Read. “Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies. ”

              The problem here is that the injection would have him unconscious within seconds, rendering him incapable of experiencing this event even if it were legitimately likely. The dissent is entirely too credulous about the claim that an unconscious man would actually experience what was going on until clinically dead.

              I understand the point about resolving all factual questions in favor of the person objecting to a preliminary injunction, but the factual questions have to have some minimum credibility. The guy was falling asleep every night without dying in agony in a pool of blood. At most he had a reasonable claim to be executed in an upright position.

              1. Who’s not reading the whole thing?

                Dr. Zivot stated that the effects of a pentobarbital injection “are highly unlikely to be instantaneous and
                the period of time between receiving the injection and
                death could range over a few minutes to many
                minutes.” Id., at 222 (emphasis added).

                Dr. Zivot “strongly disagree[d] with [the State’s expert’s] repeated claim that the pentobarbital injection
                would result in ‘rapid unconsciousness.’

                1. Yes, I know what the murderer’s expert was testifying to.

                  The time between injection and “death” is not the issue here. It’s the time between injection and “unconsciousness”.

                  And the good doctor wasn’t just disagreeing with the State’s experts, he was disagreeing with basically everybody who knows anything about the topic. This drug is routinely used for veterinary euthanasia, and it is both reliable and fast, as proven tens, maybe hundreds of thousands of times every year.

                  1. In many ways, the real issue in this case was the summary judgment. It sure looks like there was a battle of the experts here and the factual development would have been assisted by a trial.

                    1. From 10,000 feet, it looks like that, and I’m aware that summary judgment isn’t supposed to happen where there are relevant factual disputes to settle.

                      But at some point they need to be real factual disputes, not just “I found some crackpot to argue the point” factual disputes, or summary judgments would NEVER happen over the opposition of one of the parties.

                      The guy claims that if you give him a drug that will cause him to fall asleep on his way to dying, he’s going to drown in his own blood and die in agony.

                      He’s claiming this despite the fact that he goes to sleep every night without drowning in his own blood and dying in agony.

                      I suppose in a normal case the Court might have humored him with a factual hearing that was predestined to not go his way. But it’s a death penalty case, and the Court’s majority is fed up with dilatory tactics, and this smells like a dilatory tactic.

    2. Why all the complaints about facilitating a painless execution for murderer?

      But not extending the same courtesy to the execution of babies during their abortion.

      Progressive compassion for the guilty – but no compassion for the innocent.

      1. Yeah yeah, it’s easy to make hypocrites of anyone if you beg the question.

  4. This seems an apt choice of hill for the Federalist Society’s big-government, old-timey right-wingers to have their claims of moral decency die on.

    These stale-thinking authoritarians disparage, despise, and fight government’s motives, performance, and credibility — until it’s time for government to kill someone, at which point they perceive government to be well-meaning, skilled, and trustworthy.

    Especially when the people to be killed are brown, poor, and ideally (at least vaguely) foreign.

    Carry on, clingers.

  5. How much support for government killing of convicted citizens is being served these days in the Cafeteria of Catholicism?

    Have hundreds of exonerations reduced anyone’s appetite?

      1. Michael, do you suppose those hundreds of exonerations show us that the “beyond a reasonable doubt,” standard is inadequate, or do they merely show that there are a lot of people with a disregard for the standard in the jury pool? Come to think of it, aren’t you yourself showing disregard, with your comment?

        1. I think with modern DNA evidence being fairly conclusive in murder convictions, that people’s worries about false convictions of people on death row is very minimal, if DNA evidence was part of the conviction.

          I do know that social science work has shown people believe in law enforcement expertise more these days due to the so called “CSI effect”, but really it’s just conjecture.

          1. Not all cases have DNA, and when they do, prosecutorial misconduct, not to mention laboratory errors and outright falsification of results, phony prosecution “experts” (remember hair fibers?) have not disappeared.

            No matter how good forensic techniques are in theory, error and misconduct are always a risk.

            1. I agree, there is always the risk of an innocent man being wrongly punished. The question was about the assessment of the level of risk in the population, and considering the level of public support for the death penalty currently, I think most people think the risk is small.

              1. Personally, I support execution by cryonic suspension. The upkeep is dirt cheap, and if evidence ever surfaces of actual innocence, there’s at least the theoretical possibility of undoing it some day.

              2. Or, for some people, it involves people they don’t care about.

                I do not consider those opinions to be worth much.

              3. mad_kalak, regardless of the theoretical reliability of DNA technology, the risk of relying on it for a conviction is never smaller than the risk of police or prosecutorial misconduct. It’s child’s play for authorities who have a suspect in custody to arrange for that suspect’s DNA to show up at a crime scene. In the Simpson case, it was proved that police took blood from Simpson’s arm back to the crime scene, during the investigation.

                Prosecutorial misconduct is a risk sufficiently likely that no DNA evidence should be deemed sufficient?on its own?to overcome reasonable doubt. Juries should be instructed accordingly. That is especially appropriate as a standard in a death penalty case.

                1. ” In the Simpson case, it was proved that police took blood from Simpson’s arm back to the crime scene, during the investigation.”

                  A small quantity relative to what was scattered about at the crime scene, which remained in a sealed vial in a sealed envelope.

                  Which is not to say that you aren’t right about the general principle, even if there’s no reason to believe Simpson was framed. It is quite possible to frame somebody with DNA evidence if you have access to any sort of tissue samples, potentially even if you have access to some sorts of genetic test results. One of the reasons it’s really a bad idea to let the government archive genetic info.

              4. I agree, there is always the risk of an innocent man being wrongly punished.

                Let me put it this way.

                It is far less than the risk of being wrongfully shot to death by police.

    1. You might find that people would engage with you more if you posted comments with some substance, like this is at least in the ballpark of, though way out in left field.

      To your question, yes. However, the innate human desire for reciprocity and punishment for extreme norm violations means the death penalty for the most barbaric of crimes isn’t going away in a country at least somewhat tied to democratic rule.

      Furthermore, I suspect, because this is a human nature thing, that even as the population replacement you say is underway continues, and leftists being really big on punishment of norm violators, that the death penalty will be with us for quite some time to come. Even beta male weenie hipsters and aging feminist cat ladies won’t go to the trouble to organize against the death penalty when it is a child murderer getting the the needle, nor will the South American or Asians coming into the country in record numbers (because they come from places where such things are normal) .

      1. My understanding is that opposition to the death penalty is one of the points at which right-wing Catholics depart from the church line they ostensibly revere.

        This selectivity (flip-flopping, lack of principles or consistency, hypocrisy) is a point worth noting, especially when some of the relevant floppers claim to be libertarians (or “libertarianish,” or — my favorite — “often libertarian”).

        To evaluate your prediction with respect to popularity and prevalance of the death penalty in America, I would wish to know how you figured the gay marriage issue would develop.

        Carry on, clinger. Feel free to be astonished yet again when the death penalty follows the trajectory of gay marriage, abortion, marijuana, contraception, interracial marriage, affirmative action, environmental protection, and several other doomed right-wing causes.

        1. The Catholic laity and the ordained are quite at odds about a number of things. Doctrine tends not to change though, and if you don’t like it, find another church would be my advice (or keep your mouth shut).

          How gay marriage developed? Most people personally knew someone who was gay who seemed a normal chap, and not felicitating someone on the street in San Fran whilst wearing a furry costume, so they were like “meh” when it came to gay marriage That’s how I felt about it at the time, because the counter arguments about benefits costs were weak, and because straight people had already ruined marriage through no fault divorce already. Plus they promised us that that’s where they would stop and that they wouldn’t try to force people to interact with gay weddings and such…a total lie it turns out, but like Charlie Brown and Lucy’s football, we conservatives fell for it.

          Ye gads though, your list is a wrong assumptions about where conservative opinion actually lies. Your Platonic ideal of some paleo-right winger complaining like Archie Bunker against “uppity Negroes on cannabis” are so off base it’s hilarious.

          1. “The Catholic laity and the ordained are quite at odds about a number of things.”

            And the Church permits this. Some things you can’t disagree with the Church on without grave sin, (Abortion, for instance.) some things you can. Part of that whole, “render unto Caesar” thing.

            In the case of the death penalty, the official position is that it’s permissible if there’s no real doubt that the person being executed is guilty. The guy in this case admits it, so executing him is fine according to Catholic doctrine.

          2. Ye gads though, your list is a wrong assumptions about where conservative opinion actually lies. Your Platonic ideal of some paleo-right winger complaining like Archie Bunker against “uppity Negroes on cannabis” are so off base it’s hilarious.

            To the contrary, there’s the Republican Party platform. And the conduct of Republican elected officials for several decades.

            1. Man, I gotta stop reading the VC in public places, people look at me funny when I laugh out loud at your comments.

        2. “follows the trajectory of gay marriage, abortion, marijuana, contraception, interracial marriage, affirmative action, environmental protection, and several other doomed right-wing causes”

          Either interracial marriage and the rest are doomed right-wing causes, or else the Reverend needs to take his own advice and get an education, starting with basic grammar.

      2. “You might find that people would engage with you more if you posted comments with some substance, like this is at least in the ballpark of, though way out in left field.”
        The comments are both substantive and perfectly understandable. If there is a reluctance to engage, I suspect it is because the commentary is framed in a way that forces people to own the consequences of their positions.

    2. Very generous of mad_kalak to attempt an answer to the Rev’s “questions.” Frankly, I’m not really sure what the Rev. is asking. I doubt if he knows either but it may be part of his therapy to try put some of his ramblings in writing.

      1. The Catholic Church is against the death penalty, and this pope more vocal about it. I suppose he’s trying to see if Catholics will come out and try to end the death more than before (they haven’t really), but they are rather more busy these days trying to prevent infanticide.

        1. Some Catholics seem to have plenty of time to devote to approving and facilitating state killing of persons adjudged by the government (in part consequent to the efforts of government agents with sketchy motives and readily abused government power) to have committed crimes.

          1. Less time then to devote lately Rev., given that they also have to fight against Democrat endorsed infanticide.

            1. Conspirator Bray is an employee of Notre Dame, after departing a public university’s faculty, in part because of an ostensible taste for Catholic morality. Yet he seems to take the position that comforting those who oppose Catholic teaching on the death penalty to flatter right-wing dogma is more important that just about anything else to which he could have devoted his time, at least today.

              1. Is there evidence of your claim on Bray’s motivations for his actions?

                1. Which motivations? With respect to leaving UCLA for Notre Dame or with respect to comforting those who oppose Catholic teaching?

                  1. And does this have any bearing on Democrat endorsed infanticide? just curious.

                  2. Whichever you’re willing to try to explain.

                    1. Why would a professor depart a public university law school for a lower-ranked school? Professor Bray explained: “I love that I don’t have to draw a sharp line between my faith and my vocation as a scholar and teacher.”

                      That line seems to blur, however, when right-wing dogma is involved.

                    2. I fail to see why there is a problem, perhaps you could say why, and further where you get this idea there is a lot of friction between Catholicism and normal conservatism.

                    3. Normal conservatism? How much of that do we see around these parts? Maybe when Kerr does an OP. But the commenters here run mostly to movement conservatism, which on its face looks like some kind of radical nihilism, and not recognizably in the conservative tradition at all.

        2. Until Francis stepped in, the doctrine was that in present circumstances, the death penalty was applicable only in narrow circumstances which rarely or never apply. In other words, the philosophical foundations of the death penalty were still in place, but modern developments limited the instances in which the death penalty could be imposed in practice.

          Then Francis came in to replace that doctrine with a new one that “we’ve always been at war with Eastasia…I mean now the death penalty is evil in all cases.” Part of Francis’ attempt to make the Catholic Church like the Communist Party in 1939-1941 – the stuff you used to be *required* to believe you are now forbidden to believe.

          1. You are quite correct about Francis and that interpretation. I don’t know if it is from the throne, so to speak. The man needs to be kept away from microphones, and is the strongest modern example one can point to when debating monarchists.

          2. We’re all sort of waiting out Francis, in the hope of getting a non-commie Pope next time. What a come down, from John Paul II to Francis in just a few years.

    3. Apparently, killing convicted killers by lethal injection is bad, but killing civilians not even charged with a crime, much less convicted, is good, as long as it is done by drone strike and in a faraway country like Afghanistan, Yemen, Somalia or Libya. So, why not just send the guy to Afghanistan and kill him with a drone-fired missile? Surely you can’t complain about that, or at least you never did when Obama was ordering the drone strikes.

      1. I think you’ll find more overlap than you think in people who did not care for Obama’s drone policy and anti-death penalty types.

        1. It’s not the lack of overlap, it’s the circumspection about the outrage. Granted, this thread is about the death penalty, but you get the idea.

          1. I’m sure there was no shortage of partisan selective outrage.

            But you can’t be outraged about everything you’re unhappy with. People choosing a cause aren’t hypocrites simply because they don’t choose all the causes.

            Plus there are a number of ways one can distinguish drone strikes from the death penalty without much of a problem.

            1. Yes, but I suspect that the reason Dj points out the drone strikes, is so Rev (whom in all honesty we should all just ignore) might, just might, have a moment of cognitive dissonance and then realize afterwards that he is not as ethically pure as the wind driven snow. Now, do you think is Rev capable of such introspection?

              1. No one posting on the Internet is capable of introspection.

                1. Oh, I am, in that I have conceded a point or two to you. One I specially recall about the pace of change called for by some conservatives. And at least once you admitted that I was “technically correct” about Mohammed’s 9 year old wife, which must have been somewhat difficult to admit. Further, I used to buy more into the “Jews undermine Western culture with calls for diversity while being insular about their own culture” thinking…until commentator Bernstein here pointed out all but the orthodox/conservative Jews are intermarrying at such a rate that all but those types will pretty much cease to exist in a few generations.

              2. What makes you figure I approve of lethal drone strikes, let alone those associated with the counterproductive, immoral clustermuck in the Middle East, Afghanistan, etc.?

                I not only do not believe I am ethically pure, but am highly confident that I am not.

                Other than that, though, great comment!

                1. Rev, you just proved that you’re incapable of introspection for everyone here (those who don’t scroll past when they see your name that is), though to be fair we already surmised that.

  6. My take:

    Death by hanging – perfectly usual, so cruelty is irrelevant (must be cruel *and* unusual). Experimenting with more “humane” punishments doesn’t stop the state from going back to hanging.

    Death by injection – unusual, so it must observe Elvis’ injunction to not be cruel. Thus, the details of the injection must be examined by the court.

    1. What about the Guillotine? Although I think I would prefer a firing squad, just so I could use Breaker Morant’s line at the end.

      1. The speed of death by Guillotine is exaggerated, I think, though the lack of blood flow to the brain does cause things to shut down quickly. A bullet to the brain would be a lot quicker.

        It just pretty decisively stops the executee from thrashing about or screaming. In much the same way as hanging does, by severing the spinal cord, so that the brain lacks any ability to control the body.

        1. A properly applied choke knocks the person out in about 3-5 seconds. I suppose beheading someone means that they are aware and looking around for about as long. Supposedly during the French Revolution some tried to see how long it took for the light to leave someone’s eyes after a beheading, and they found that people’s lips moved like they were trying to talk for a few seconds before they “died”.

  7. So…..when do we bring back Old Sparky, the hangman’s noose, the guillotine, the gas chamber and the firing squad? All of these would seem acceptable by SCOTUS. None of those methods bother me all that much. They all work.

    The issue I have is that the death penalty is not applied swiftly and surely enough.

  8. Trying to make execution “humane” is insulting to the victims as well as being constitutionally ridiculous.

    Any method in use in 1789 is valid, stupid bleeding heart judges notwithstanding.

  9. I think it may be time to bring back flogging as a regular form of corporal punishment. None of the Founding Generation who were slaveholders would have had any problem with it. Also, I believe it was still an accepted form of punishment for common sailors in the American navy in the 1780s.

    1. A good deal later than that, billatcrea. The last convict flogged legally in the U.S. was in Delaware, in 1952. At least one flogging sentence was imposed there in the 1960s, but was not carried out.

    2. Great idea 🙂

      I’m sure many dems would much rather flog Trump than to impeach him. 🙂

      1. Dems were the party of flogging.

        1. True . . . until they went squishy on the black-and-brown menace, precipitating the bigots’ migration to the Republican Party, which welcomed and flattered diffuse, state intolerance in an effort to maintain a viable electoral coalition against America’s modern tide.

          1. Don’t fret, you are still the party of choice for anti-Semites.

            1. Where opposition to Israel’s immoral right-wing belligerence is described as anti-Semitism, sure.

              1. Gosh, you’re right “Israel has hypnotized the world.”

              2. “Where opposition to Israel’s immoral right-wing belligerence is described as anti-Semitism, sure.”

                Yes. Israel really needs to stop reacting when Hamas lobs missiles into the country from Palestinian territory. That’s just boys having fun, and Israel is being immorally beligerent by trying to put a halt to that. Got it.

                1. Israel can do at it wishes. Without being subsidized, at great and varied cost, however, by Americans who currently provide political, economic, and military skirts behind which Israel’s right-wing belligerents currently hide.

                  By making support for immoral Israeli conduct a left-right divider in American politics, right-wingers are hastening the day at which Israel gets to stand on its own two feet.

                  Nice work, clingers.

                  1. Yeah, great and varied costs, right again Rev., “It’s all about the Benjamins baby”

                    1. Political. Moral. Economic. Military.

                      Carry on, you bigoted rube.

                    2. Economic? Kinda sounds like “Benjamins”

                    3. It is one relevant factor. A cost. Not ‘all about.” Not even the most important factor.

                    4. Ok, let’s try to try to revise that for a future tweet (I hope Omar is paying attention): “It’s not really all about the Benjamins baby. It’s about other immoral Israeli conduct that is not about the Benjamins. But, come to thing about it, what conduct could really be pursued without the Benjamins? So, I guess, in the end, it’s all about the Benjamins baby”

                      I think the original works better for anti-Semitic purposes.

                    5. More fundamentally though, I should say (giving you the benefit of a doubt) that you really must not understand why “It’s all about the Benjamins” is an offensively anti-Semitic remark. Just for your edification, it plays off the old anti-Semitic trope that Jewish money controls politics. Noting, in effect, that it’s only partially about money is to say what? That Jews only exercise partial control through their money? Not really much better, is it?

  10. I cannot find the word ‘painless’ in the Eighth Amendment – can you? People ‘play through the pain’ every day for their own enjoyment – ‘no pain, no gain.’ I see no plausible need for execution to be painless, or even close to it. The words ‘cruel and unusual’ don’t require an etymologist to interpret – we all know what it means. Personally, a ‘bullet through the cranium’ machine works fine for me. And it takes no doctors to administer. Just a guy to load the bullets and test it before use. I recommend a coconut. Now – on with the show!

    1. Yeah, that was a point of mine up above. Even if you take every word of the guy’s paid expert as true, (And there’s plenty of reason to doubt it.) I’ve been through worse, voluntarily, on multiple occasions. Many people have, and think nothing of it in retrospect.

      And this guy is an admitted murderer who at least nominally isn’t fighting being executed.

      You should try getting a dislocated ankle reduced on an emergency basis, when your leg is broken. They wheel you into a room, close the door, and tell you to feel free to scream if it helps.

      The guy should just man up, and reflect on how lucky he is that he’s not getting the treatment his victim got. Though I guess I can understand wanting to put off meeting his maker for a few more years under the circumstances.

  11. Death penalty opponents got us to this place so it shouldn’t be a big surprise. That is what happens when you engage in a decades long campaign of bad faith policy making. They knew they couldn’t achieve their desired ends by anything but nefarious political tricks and the courts say right through it. And who are the victims? Death row inmates who now either have to sit forever waiting possible punishment and victims who must wait dozens of years until finality comes.

    I saw bring back hanging and firing squads. Make them public too. If society can’t swallow public executions then get rid of the death penalty. One thing we always hear as a “pro” for the death penalty is the deterrent factor. Can’t think of anything more of a deterrent then having to think up of being publicly executed for committing a crime.

  12. The “evolving standards of decency” test is an embarrassment. The idea that if 40 states stop doing something, it’s unconstitutional for the remaining 10 to do so is a sick joke.

    1. 17 states still execute people, but most of the states that don’t, didn’t stop voluntarily, but instead because their state judiciaries overrode public opinion.

      The only people whose standards of decency have been evolving are the judges.

  13. Not only should we make executions more swift, but we should bring them publicly, with ticket sales. Further, people should be allowed to bid for the right to be the executioner. I’d gladly pay a lot of money to be the the one who gets to put a bullet into this animal’s head.

    Link

    1. Bad link:

      Link

  14. “ungrounded in text and history and undeniably results-oriented.”

    You mean like in Roe v Wade?

  15. I’m curious when the initial question of parsing the text

    cruel and unusual punishments [shall not be] inflicted

    was settled. It could reasonably be read to mean either “cruel punishments shall not be inflicted, and unusual punishments shall not be inflicted” or “punishments that are both cruel and unusual shall not be inflicted”. Bucklew seems to assumes the second meaning, supported by cases going back to Wilkerson in 1879, but a quick look hasn’t turned up one that directly asks and addresses that grammatical ambiguity.

    1. It’s not really a grammatical ambiguity, that’s why. It parses quite clearly.

      The alternate meaning would have been written, “neither cruel nor unusual punishments”.

      1. Brett, I am unconvinced. To see why, consider this other example:

        the right of the people to keep and bear Arms, shall not be infringed.

        Does that mean the government can prohibit bearing arms as long as they don’t also prohibit keeping them?

  16. I don’t see how the “pick your poison” test has anything to do with originalism. Originalism simply has nothing to say about the burden of proof in a method of execution claim. The majority opinion seems to me to just be virtue-signalling to conservatives– “look at us, we are such good originalists”.

    The “pick your poison” test is a pragmatic procedural rule to prevent sub silentio challenges to the death penalty itself by inmates who are lawfully and constitutionally subject to execution. To ensure that this doesn’t happen, the inmate is required to identify a practical method of execution that would inflict less suffering.

    There is, of course, nothing wrong with prophylactic procedural rules in common law rulemaking, including when interpreting constitutional provisions. It has nothing to do with originalism, though, and I wish conservatives would be more willing to admit that not everything in constitutional law has to be originalist.

  17. I don’t see how the “pick your poison” test has anything to do with originalism. Originalism simply has nothing to say about the burden of proof in a method of execution claim. The majority opinion seems to me to just be virtue-signalling to conservatives– “look at us, we are such good originalists”.

    The “pick your poison” test is a pragmatic procedural rule to prevent sub silentio challenges to the death penalty itself by inmates who are lawfully and constitutionally subject to execution. To ensure that this doesn’t happen, the inmate is required to identify a practical method of execution that would inflict less suffering.

    There is, of course, nothing wrong with prophylactic procedural rules in common law rulemaking, including when interpreting constitutional provisions. It has nothing to do with originalism, though, and I wish conservatives would be more willing to admit that not everything in constitutional law has to be originalist.

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