Wednesday, September 28, 2011
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.