Mirror of Justice

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Wednesday, October 16, 2013

Where Magisterial Morality and Constitutional Morality Converge: The Case of Capital Punishment

I just posted to SSRN a paper titled Why Capital Punishment Violates the Constitutional Law of the United States.  The paper is available here.  If my argument misfires, where does it misfire?

This is the abstract:

I explain in this paper why we are warranted in concluding that capital punishment—punishing a criminal by killing him—is both “cruel” and “unusual” within the meaning of the Eighth Amendment’s ban on “cruel and unusual punishments” and therefore violates the constitutional law of the United States.  In setting the stage for that explanation, I discuss the internationally recognized human right not to be subjected to any punishment (or other treatment) that is “cruel, inhuman or degrading”.  When I turn to the question of the original understanding of the Cruel and Unusual Punishments Clause of the Eighth Amendment, I discuss the important work of John Stinneford, explaining why I concur in Stinneford’s conclusion about the original understanding of “cruel” but dissent from his conclusion about the original understanding of “unusual”.



Perry, Michael | Permalink


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Point one: the 14th Amendment, enacted after the 8th Amendment, clearly states that the death penalty is permissible so long as due process is followed. So, the 14th Amendment should be read to modify the 8th, not the 8th read to modify the 14th. Point two: the minute you mentioned international law you lost me as a matter of principle. Third, society has not "evolved" in an anti-death penalty direction. There is some shift in the polls but a very clear majority of Americans support the death penalty.

Posted by: Mark in Spokane | Oct 18, 2013 3:30:58 PM

Interesting read. Two questions came to mind.

(1) What is your position on the deterrence or incapacitation arguments in special cases, such as those who kill in prison?

(2) I am inclined to think a person can like, dislike or be required to do two things and say "and" ... "cruel and unusual" to me is not "not only cruel, but cruel when also unusual" but either now a stock term of art "cruel and unusual" or both "cruel" and "unusual."

In the alternative, won't something very cruel but novel have a possibility of being "usual" by wide practice and thus allowed? Mere novelty isn't a problem or that would block mild punishments. We are left with the idea, it seems to me, that crucifixion might be acceptable over time if widely used after a span of years.

"Usual" also might be "legitimately in place," such as properly authorized by the legislature (thus it was a check against arbitrary royal power) and if "cruel" punishments are disallowed for some other reason, it might be "unusual" for that reason too.

Posted by: Joe | Oct 20, 2013 6:50:31 PM

The first comment as a "matter of principle" was turned off by a reference of international law. But, various legal scholars, including some with a fairly conservative bent, have noted that international law is appropriate as A tool to use when applying certain constitutional provisions.

Also, the article doesn't appear to suggest international law is enough, but it might be a sort of tie breaker. In the early 19th Century, e.g., CJ Marshall cited the "Charming Betsy" principle that ... if possible ... domestic law should not clash with international law. This makes sense when our own Declaration Of Independence as a matter of first principle respected international law & spoke of the newly independent states having the power to do what nations as of right may do.

As to the 14A, what is says is that states cannot deny "life" and "liberty" without due process. It doesn't "clearly state" anything about the death penalty though by implication that's a reasonable assumption. But, there are various ways the state can deny life & even if there was capital punishment, it might be only allowed in narrow cases.

The 14A also now explicitly gives Congress authority to enforce the provision -- Congress has the power to legislate on the law of nation (international law). To the degree the 14A provides a more unitary citizenship regime and a clear responsibility for states to provide equal protection, that too might affect capital punishment and further the "brotherhood" approach of the article.

Posted by: Joe | Oct 21, 2013 11:25:39 AM