# Cruel and Unusual Punishment **URL:** \ **Category:** Great Debates\ **Created:** [April 15, 2005, 6:20am UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450 "2005-04-15T06:20:47Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [April 16, 2005, 6:52pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/21 "2005-04-16T18:52:44Z")
> [@rjung](#): > > IIRC, the guillotine was supposed to be painless, as ostensibly the sudden trauma of the blade hitting the neck would cause short-term amnesia to prevent the victim from feeling the actual “cut.” On the other hand, I imagine a convicted criminal walking into the execution chamber and seeing that big ol’ honkin’ blade ten feet over their head could argue about cruel _psychological_ punishment… > > Eh, wait until the guy falls asleep, and the put a bullet in his head. Couldn’t the same be said about seeing the gurney that they’re about to be strapped to, or back in the day, looking at the electric chair? (Does anyone still USE the electric chair, or the gas chamber?) I guess you could always blindfold the guy. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [April 16, 2005, 8:39pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/22 "2005-04-16T20:39:39Z")
> [@](#): > > This sets them apart from civilized standards- note that other western countries won’t extradite to the USA if there is the possibility of judicial killing. I always love (i.e., hate) this argument. Appeals to the supposed masses. Aside from which, it defines civilization largely by votes. In which case, I’m sorry, but Europe isn’t it, because they’ll be outvoted by everyone else. Personally, I’d rather be shot. It may not be as “humane” or other such rubbish )look, ma, I’m British!) but it has the advantage of having a personal touch. I’d rather be killed by someone, not an anonymous machine. I guess that must sound wierd. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [April 16, 2005, 9:04pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/23 "2005-04-16T21:04:01Z")
> [@smiling bandit](#): > > Personally, I’d rather be shot. It may not be as “humane” or other such rubbish )look, ma, I’m British!) but it has the advantage of having a personal touch. I’m just wondering what kind of card Hallmark would write about it. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 16, 2005, 9:42pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/24 "2005-04-16T21:42:19Z")
> [@Bricker](#): > > The death penalty is not “cruel and unusual” within the meaning of the Constitution. The Constitution specifically provides for a death penalty for certain crimes, and as **Jackmannii** correctly observes, if hanging did not violate the stricture against cruel and unusual punishment, then surely lethal injections do not. > > However, the death penalty is simply wrong. While the Constitution permits it, it does not mandate it. We do not HAVE to kill our prisoners. Nor should we. We have the realistic capability of securing even the most dangerous prisoners for life, with due regard for their own safety as well as those guarding them. > > And given the number of people sentenced to death whose convictions have later been overturned after a “Whoops, look what the DNA test says!” incident, I believe it’s utterly depraved to insist that we should have the level of certainty in death penalty convictions necessary to take the life of a convicted person. I think this is very well said, and I very much agree. Note the first paragraph in particular. (Although to be technical, the Constitution itself does not directly address the death penalty, but that it is permissible is such a strong inference that it might as well be said that it does: “…shall not deprive … of life … without due process of law.”) Messrs. Justices Brennan and (Thurgood) Marshall were convinced that the death penalty **was** “cruel and unusual punishment,” and always argued in this sense, in dissents (and in one case a majority) and in dissents from denial of cert., something very rare other than their insistence on doing a DDC for _every_ Death Row case that came up as a cert. petition. Save for the unique (and patently illegal) circumstances of that one case, though, they never were able to put together a majority. [I don’t recall the specifics of the case, except to say that I recall that the trial court took “railroading” a prosecution to a new level; if any lawyer or law student wants to dig out the details, I’d be interested.] New York’s law some years back (I don’t know if it’s changed) permitted the death penalty in only two circumstances: murder while already serving a sentence of life imprisonment, and murder of a police officer while he was in the line of duty. North Carolina has a strong upswelling for a moratorium on imposition of its death penalty, including by advocates of capital punishment who are, like their counterparts in opposition to it, convinced that it is being imposed arbitrarily and more based on whether the accused can get a good lawyer than on any aggravating circumstances associated with the case. ---
**Author:** ![picker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/picker/32/13969_2.png) [@picker](https://boards.straightdope.com/u/picker)\ **Post date:** [April 16, 2005, 9:58pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/25 "2005-04-16T21:58:23Z")
I guess i don’t understand why, if we must execute people, we don’t just give them a lethal dose of some type of depressent, like barbiturates. It would seem to me the most humane way to kill someone. They could just take the pills - heck, let 'em wash them down with their favorite beer or liquor if they like - say their final piece and lay down for a nap. Lord knows i’d prefer that to an injection or any of the other methods currently employed. ---
**Author:** ![Pushkin](https://avatars.discourse-cdn.com/v4/letter/p/ee59a6/32.png) [@Pushkin](https://boards.straightdope.com/u/Pushkin)\ **Post date:** [April 17, 2005, 12:24am UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/26 "2005-04-17T00:24:32Z")
> [@Sage Rat](#): > > I mean, if you just put the person in a room with a roof made out of a rock slab weighing 10 tons held up by a length of cord and a quick release system–death is guaranteed and pain will not be felt I thought that when I saw the story on the news. That or a gunshot to the back of the head. It seemed to me that the manner of execution had to be less grisly for those watching, not for those suffering it. ---
**Author:** ![MLS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MLS](https://boards.straightdope.com/u/MLS)\ **Post date:** [April 17, 2005, 12:31am UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/27 "2005-04-17T00:31:54Z")
We have means of euthanizing animals that are painless, at least as far as I could tell from holding a beloved pet while he was “put to sleep.” The vet injected something that put him into unconsciousness – not paralysis. He said it was the same stuff that would be used prior to surgery. Then the drug that caused the heart to stop was injected and in a minute he was gone. If we truly wanted to execute someone with zero pain, that would be about as close as we could get. Why isn’t the same method used? Or is it in some places? ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [April 17, 2005, 6:14am UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/28 "2005-04-17T06:14:25Z")
> [@MLS](#): > > We have means of euthanizing animals that are painless, at least as far as I could tell from holding a beloved pet while he was “put to sleep.” The vet injected something that put him into unconsciousness – not paralysis. He said it was the same stuff that would be used prior to surgery. Then the drug that caused the heart to stop was injected and in a minute he was gone. If we truly wanted to execute someone with zero pain, that would be about as close as we could get. Why isn’t the same method used? Or is it in some places? With animal killings, a skilled practitioner who does the job regularly (and working with a being with no concept of imminenet death) and whose intent is an easy death, is able to do the job humanely. With human killings, semi skilled practitioners who do the job irregularly (and working with a being who is all to clear about their intentions) and whose intent is wreaking death as a punishment, are unable to do the job humanely. ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [April 17, 2005, 10:01am UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/29 "2005-04-17T10:01:42Z")
> [@Pjen](#): > > Can lethal injections as currently governed be seen as anything other than Cruel and Unusual Punishment? I am not a constitutional lawyer. My understanding of “cruel and unusual” as originally intended in the consitution is that it ensures consistency and fairness in sentencing. There should be a particular penalty for a particular crime, comnsistently applied. A sentence is “unusual” if it is rarely imposed and “cruel” if it is substantially harsher than the standard penalty. What makes the current US death penalty “cruel and unusual” is the fact that it is so rarely used. Youi could have 100 nearly identical murders, 99 get 20 year sentences, the 100th gets a death sentence. The difference is random and arbitrary, and may be due to a politician seeking reelection at that particular time. Thus even a completely pain-free execution would be cruel and unusual if it is used rarely and capriciously. This leads to the arguments: how rare is rare? If the law specifies the precise conditions for a death sentence, is that sufficient? Is the death penalty sought for ALL cop killers, or only 1 in 100? As I understand it, this is the primary meaning of cruel and unusual. A frequently used but painful method of execution \*might \*also qualify, because it amounts to torture, and torture is cruel and unusual within the primary meaning. But painful does not automatically mean cruel, legally speaking. [article](http://www.thisnation.com/question/018.html) Speaking for myself, I am opposed to the death penalty in all circumstances. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 17, 2005, 12:56pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/30 "2005-04-17T12:56:36Z")
> [@Peter Morris](#): > > I am not a constitutional lawyer. > > My understanding of “cruel and unusual” as originally intended in the consitution is that it ensures consistency and fairness in sentencing. There should be a particular penalty for a particular crime, comnsistently applied. A sentence is “unusual” if it is rarely imposed and “cruel” if it is substantially harsher than the standard penalty. > > What makes the current US death penalty “cruel and unusual” is the fact that it is so rarely used. Youi could have 100 nearly identical murders, 99 get 20 year sentences, the 100th gets a death sentence. The difference is random and arbitrary, and may be due to a politician seeking reelection at that particular time. > > Thus even a completely pain-free execution would be cruel and unusual if it is used rarely and capriciously. This leads to the arguments: how rare is rare? If the law specifies the precise conditions for a death sentence, is that sufficient? Is the death penalty sought for ALL cop killers, or only 1 in 100? > > As I understand it, this is the primary meaning of cruel and unusual. A frequently used but painful method of execution \*might \*also qualify, because it amounts to torture, and torture is cruel and unusual within the primary meaning. But painful does not automatically mean cruel, legally speaking. > > [article](http://www.thisnation.com/question/018.html) > > Speaking for myself, I am opposed to the death penalty in all circumstances. I’d rather one of the practicing lawyers on the board spoke to the reasoning here, because I’m not certain about the underlying premises. But I do want to point out that there is a real if minor flaw in “There should be a particular penalty for a particular crime, consistently applied. A sentence is “unusual” if it is rarely imposed and “cruel” if it is substantially harsher than the standard penalty.” Rather, there should be a particular **range of** penalties for a particular crime, **consistently applied.** A mandatory sentence for grand theft auto that gives a judge no discretion between a teenage joyrider and a part of an interstate car-theft/chopshop ring is not doing justice. The point would be, if the death penalty is appropriate for only certain particularly aggravated and heinous killings, is it consistently charged and imposed as a sentence? Or is it a case of “Killing while black is punishable by death,” as some critics of the sentence in some states have suggested is the unspoken true criterion? (That is, by the way, not an intent to hijack with the “race card,” but _repertorial_ about an apparent disparity: Strangely enough, if you take the trial-and-conviction figures with a straight face, a black killer is six or seven times more likely to commit capital murder than a non-capital homicide, which is a crime more often committed by a white killer. It leads one to suspect, not that a black man is more inherently vicious in his means of killing, but that there is residual racism in how homicide crimes are charged, prosecuted, and tried. ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [April 17, 2005, 4:38pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/31 "2005-04-17T16:38:35Z")
> [@Pjen](#): > > Let’s consider why muscle relaxants are used. > > The drugs intended to cause death do so by causing a heart attack- the heart stops. > > When the heart stops the body goes into crisis and is robbed of oxygen. The brain remains conscious for several minutes while the muscles and internal organs are starved of blood and oxygen to try to maintain brain function. The body writhes and contorts and the face grimaces repeatedly. > > To make the process more acceptable to onlookers and members of the public who might go into the anti judicial killing camp if they saw this, straps and muscle relaxant are used. To address the incorrect and misleading statements made here: The brain does not “remain conscious for several minutes” upon cardiac arrest. [Immediate loss of consciousness](http://www.skyaid.org/Skyaid%20Org/Medical/Issues%20surrounding%20SCA.html) is the rule. The onset of brain _death_ will not occur for several minutes, but the individual in cardiac arrest is not aware during this period. All forms of execution have traditionally involved restraint, as condemned killers might just decide to evade the penalty otherwise. > [@](#): > > This ensures that this form of judiccial killing looks more ‘humane’ but may result in people suffocating to death as in the gas chamber and suffering extreme bodily pain as in the electric chair. None of these allegations of “extreme pain” have been documented, nor are they likely to be, as subjects of execution do not return to document their experiences. In any event, as the OP and the _Lancet_ article demonstrate, the protestors in this case have zero interest in ensuring a painless execution process - only in banning the death penalty, which has outlasted decades of challenges (whether or not “neocons” were in the ascendancy). The _Lancet_ article’s conclusions remain suspect for the reasons I cited earlier. It is also strange that while the authors cite supposed poor training on the part of those administering sedation prior to execution, the journal editorial fulminates about any involvement of physicians in the process. The training issue is therefore a smokescreen. Argue against the death penalty on moral grounds as you please, but spare us the phony arguments about “cruel and unusual punishment”. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [April 17, 2005, 5:17pm UTC](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450/32 "2005-04-17T17:17:01Z")
The article that **Peter Morris** linked to has a good, basic explanation of the 8th Amendment’s prohibition on cruel and unusual punishment. The punishment must be known to the common law, not barbaric, not torture, and not excessive for the crime committed. > [@](#): > > The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The [428 U.S. 153, 170] American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing “tortures” and other “barbarous” methods of punishment." Id., at 842. [_Gregg v. Georgia_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=428&page=153), 453 U.S. 153, 169-70 (1976) (plurality opinion). Most importantly for this discussion, however, is that the concept of “cruel and unusual” may change over time: > [@](#): > > Thus the Clause forbidding “cruel and unusual” punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” _Id._ at 171. In other words, while currently the Constitution permits the death penalty, we may reach a point as a society where we consider the death penalty to be barbaric; at that time, it would become unconstitutional. We’re not there yet: > [@](#): > > Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society. This view was accepted by two Justices. Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid. > > The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. > > The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people. > > In the only statewide referendum occurring since Furman and brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406 U.S. 958 (1972), that the death penalty violated the California Constitution. _Id._ at 180-182. Admittedly, _Gregg_ is a 1976 case, and I haven’t looked very hard to see whether the Court has considered the death penalty as violative of the Eight Amendment since then, although I’ll note that the Court cited _Gregg_ with approval in 1998 in [_Buchanan v. Angelone_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/522/269.html) on an unrelated point. That being said, it will require work on the part of those who oppose the death penalty to create a national consensus of sufficient scope that the Court will consider finding the death penalty unconstitutional. In my opinion, it must start with the states, whose legislatures continue to permit the death penalty for crimes. **Polycarp** is right, by the way. A particular sentence, rigidly imposed without care for the individual circumstances of the crime of the defendant, is prohibited by the Constitution. I’ll stop there, as this is long enough already. [Previous page](https://boards.straightdope.com/t/cruel-and-unusual-punishment/299450.md?page=1)