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September 28, 2011

Perry: "Is Capital Punishment 'Cruel and Unusual'?"

Continuing with MOJ's recent capital-punishment theme:  Our own Michael Perry has a new paper on SSRN called "Is Capital Punishment 'Cruel and Unusual'?".  Here is the abstract:

The right of every human being—every human being without exception—not to be subjected to any punishment that is “cruel, inhuman or degrading” is an international human right. A version of that right is entrenched in the constitutional law of the United States: the right of every human being—again, without exception--not to be subjected to any punishment that is “cruel and unusual”. In this paper, I inquire both whether capital punishment is “cruel, inhuman or degrading” and, next, whether capital punishment is “cruel and unusual”.

Michael concludes that the answer to both questions is "yes" (in part because capital punishment -- when considered in a global context, and not only in a national context -- has become "unusual"); he addresses elsewhere the question whether the "yes" answer to the second question means that the Supreme Court of the United States should rule that capital punishment (always) violates the Eighth Amendment.  Check it out. 

I oppose capital punishment for (I think) the same reasons that Michael does.  But, in my view, it is problematic -- which is not to say I'm sure it's wrong -- to give much weight to the abolition of the death penalty in other countries when deciding whether capital punishment is "unusual" for Eighth Amendment purposes.  One concern I have is that it is hard to say that the abolition of capital punishment in all of these countries has been the result of meaningfully democratic decisionmaking.

Posted by Rick Garnett on September 28, 2011 at 11:34 AM in Garnett, Rick | Permalink

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"Perry: 'Is Capital Punishment 'Cruel and Unusual'?' "

I thought the (obvious?) answer would be, "No: It's Ultimate Justice!"

Posted by: Mike | Sep 28, 2011 11:57:02 AM

I'm against the death penalty and I want to see it abolished, but I really dislike the "it's unconstitutional" argument. It is undoubtedly clear that when the law was written, the death penalty did not fall under the meaning of the words "cruel and unusual." To say that the death penalty is now today "cruel and unusual," is to say that the understanding of the law's words can change over time and due to the beliefs and practices of other people. But that method of legal interpretation has no grounding and gives the law no stability. It reminds me of the famous "A Man For All Seasons" quote from More to Roper about giving the Devil the benefit of the law, for our own safety's sake. I don't want us to have the ability to so easily interpret the law's meaning differently from the law's original understanding, because we might lose the protection of the law in a future society that has changed and understands the law's language in another different manner.

If we don't like what a flawed law says, let's not interpret the language of the law to mean something different than what the language meant when the law was made. Instead, **let's change the law.**

Posted by: Thales | Sep 28, 2011 4:46:48 PM

As a social scientist, I might suggest that you should be careful when concluding a law (ban on death penalty) is popular just because it is on the books. Possibly a political system is designed to allow the intense preferences of a minority to prevail. Or maybe the political system allows only the elite to run for office and the elite oppose the death penalty. For example, best I can tell, the United Kingdom does not run primaries, instead the parties (the elite) pick the candidates. Of course, polling generates another set of problems, often related to how the question is asked. Finally, nations differ on the portfolio of crimes committed, so europeans who move to America may end up supporting the death penalty. These comments are obviously, not relevant to normative arguments about the death penalty, just positive statements on the world-wide popularity of the death penalty. They do seem to suggest that the foreign laws should be irrelevant to domestic law.

Posted by: malcolm coate | Sep 28, 2011 6:09:16 PM

As a social scientist, I might suggest that you should be careful when concluding a law (ban on death penalty) is popular just because it is on the books. Possibly a political system is designed to allow the intense preferences of a minority to prevail. Or maybe the political system allows only the elite to run for office and the elite oppose the death penalty. For example, best I can tell, the United Kingdom does not run primaries, instead the parties (the elite) pick the candidates. Of course, polling generates another set of problems, often related to how the question is asked. Finally, nations differ on the portfolio of crimes committed, so europeans who move to America may end up supporting the death penalty. These comments are obviously, not relevant to normative arguments about the death penalty, just positive statements on the world-wide popularity of the death penalty. They do seem to suggest that the foreign laws should be irrelevant to domestic law.

Posted by: malcolm coate | Sep 28, 2011 6:09:16 PM

I thought it was pretty well established that "unusual" is not the same as "rare." Unusual has always been understood to mean "unique; devised for a specific case or a very narrow class of cases." Drawing and quartering, for instance, is an unusual punishment, as would any kind of punishment tantamount to torturing the convict to death.

The confusion of unusualness with rarity would leave some deep paradoxes, like the following. If for instance it happened that in a given month no one was condemned to a particular punishment, would it automatically become forbidden thereafter?

Posted by: Joel Clarke Gibbons | Sep 29, 2011 3:05:36 PM

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