[QUOTE=Whack-a-Mole]
Reading the article ArchiveGuy linked is this tidbit:
WTF does that mean? Are those two just completely off their rockers?
If the state knows a given method of execution is unduly painful but they are not out to cause pain then it is ok? Say one set of a drug cocktail causes massive suffering but it is cheap whereas drugs that are painless for execution are expensive. The state says it is not out to cause pain, just trying to save taxpayer money. That then makes it ok?
Note I am not here to argue the merits of the death penalty and one may suppose being executed in and of itself may by definition cause some pain (mental anguish if nothing else as the prisoner is lead to his/her execution) but that does not mean it should be unduly painful if it can be avoided.
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Welcome to the interesting fun that is Eighth Amendment jurisprudence. Which, as I indicated, revolves mostly around distinguishing what exactly are “cruel and unusual” punishments?
Justice Scalia (and Justice Thomas) use as a starting point (and don’t go very far from it, usually) looking to see what the meaning of those words was back when they were incorporated into the Constitution. So they look to see what was meant by “cruel and unusual” punishments back in the eighteenth century. This gives them an idea what is intended to be barred by the amendment. If a modern method of punishment is developed, they look to see if it is of a character similar to those barred methods.
This was the original standard for the Supreme Court during the first roughly 100 years of the country’s existence. However, in the early 1900s, the Court abandoned this standard in favor of one that is more able to evolve with the maturing standards of decency found in our society. For interesting reading, poke through Weems v. United States, 217 U.S. 349 (1910), the seminal case on this weather change in philosophy. Of course, like all such standards that don’t have bright lines, this makes things very difficult to predict. At any given point, is a particular punishment “cruel and unusual?” The death penalty offers the classic example. Clearly, at the time the amendment was added, the death penalty itself was not considered “cruel and unusual,” and indeed, it was carried out in a number of ways we might today consider relatively barbaric. In the liberal movement of the 60s and 70s, the penalty was declared unconstitutional as applied, and the case in which this was done, Furman v. Georgia, 408 U.S. 238 (1972), provides an instructive overview of the mess that potentially results from letting the Court examine the amendment’s language on the basis of these evolving standards. There was no unifying opinion among the five justices that voted to find the penalty unconstitutional. Two said it was unconstitutional per se, three said it was unconstitutional as applied, one because it was applied disproportionally to the poor, two because it was applied in an arbitrary manner.
Since then, states have tried to evolve their death penalty statutes to meet these objections. Of course, as membership on the Court changes, the target they have to meet moves. Justice O’Connor’s opinions were different from those of Justice Stewart, for example. So every few years, the Court takes on some new death penalty case and everyone holds their breath to see what the Court will decide about the application of the penalty. We just got through such a waiting period.
Justices Scalia and Thomas see little or no purpose to this approach. In their opinion, the amendment has a very easily discerned meaning, one which has existed for quite some time. Applying such meaning provides certainty, and has the additional advantage of taking out of the equation the personal moralities of the justices, as much as possible. I’m not saying it’s the right approach, or even that it’s a pretty good approach. But it does make things simple.
