Is there any number you could make up at which your argument would not still stand?
It’s not merely “at the time the Constitution was written.” The document itself, in black letters, says that life is a permissible penalty. Shodan correctly points out one reference; there’s another in the Fifth Amendment:
You can’t credibly claim that the Constitution’s Eighth Amendment forbids death as a “cruel and unusual punishment,” when the Fifth Amendment, adopted at the same time, expressly contemplates the imposition of death as a punishment.
This is a classic case of “Just because it’s constitutional doesn’t mean it’s right.”
Both of those are statements that the death penalty is not permitted in certain circumstances; neither is a statement that it is permitted in any circumstance. If nobody is ever executed, then nobody is ever deprived of life without due process, nor is anybody ever held to answer for a capital crime without indictment of a grand jury. Those additional restrictions were necessary at the time, because at the time, the death penalty was not regarded as unusual, but that still leaves the possibility that at a later time (possibly even now), it might become unusual, and therefore subject to a more absolute restriction than those imposed by the Fifth Amendment.
Sure. If it costs a billion dollars to execute somebody, then yeah, it’s too expensive.
Let me ask you this: How much extra do you claim it costs to execute somebody?
How marijuana related capital cases are there?
Sure it does, otherwise they would not have mentioned it.
Or are you arguing that cruel or unusual punishments may be imposed after a fair trial? In that case, the argument that the DP is un-Constitutional fails as well.
Regards,
Shodan
I didn’t make the argument. I don’t know. I am not making up numbers.
As I specifically said, I think that capital punishment is constitutional as a concept (though I feel its application at present is unconstitutional, and I am not sure its application can be made constitutional).
And no, your argument about “mentioning it” only succeeds if what is “cruel and unusual punishment” was intended to be frozen in time at what was considered “cruel and unusual punishment” when written. I have never seen a single piece of evidence to suggest that. It goes against the choice of text. I am also willing to bet, though I haven’t got it at my fingertips now, that punishments that were not considered “cruel and unusual” at the time of the Bill of Rights have since been found to be unconstitutional on the basis that they are now considered “cruel and unusual.”
All you have demonstrated is that, at the time the Bill of Rights was framed, the death penalty was not intended to be unconstitutional. I don’t know many people who would disagree with you on that. What you have to explain to go any further is why the text of the Bill of Rights includes deliberately comparative language to determine what punishments are to be considered unconstitutional, and, in particular, uses the word “unusual” which on its face certainly seems to indicate that a standard should be used based on the time that the punishment is to be imposed, not the time on which pen was first put to paper.
So if I understand you correctly, you do not believe that the death penalty is too expensive, right? You simply have no opinion on the issue, right?
No.
There’s a maxim of statutory construction, expressio unius est exclusio alterius: the mention of one thing excludes others of its type. If you explicitly mention the death penalty in the law, you cannot then assume that the same law intends to exclude the death penalty. This was affirmed many times in Supreme Court jurisprudence as regards the death penalty. In Gregg v. Georgia, the Court noted:
My opinion on the death penalty is not moved one way or other by its expense. I do not believe that the opinion of death penalty supporters is likely to be moved by the expense one way or the other, except for a limited number of people at the margin.
I do believe the death penalty to be an inefficient use of judicial resources, though. How inefficient I don’t know, so I won’t get drawn into making up numbers, as I don’t think that is a productive thing to do.
I’m personally anti-death penalty. To the point where, when called for a jury selection for a capital case, I filled out the questionnaire saying I would not follow the law if I was selected to serve on the jury.
That having been said, the “our system of implementing the DP costs too much” arguments have never swayed me. Justice should be blind to factors such as cost as well as race, creed, origin, and gender. If the DP is considered just, it should not be gainsaid by things such as cost. No price can be put on justice, as a matter of principle. Leave the laws to be black and white, and let those charged with enforcing them be where the gray areas come in.
Enjoy,
Steven
Bricker, you have practiced (infinitely) more criminal law than me… Are there situations where a punishment has been ruled cruel & unusual where the punishment was in use at the time of the signing of the Bill of Rights? I would think it very likely that there have been, but I don’t know…
Of course, this wouldn’t mean that C&U was intended to be a flexible standard. It could mean that the decisions were wrong, or that the punishment was always C&U, but had never been challenged. But it is a relevant data point for this debate, I would think.
Suit yourself. I was addressing myself to the OP, who made the claim that the death penalty is too expensive. Even if one takes the cost estimate in the OP’s article, it doesn’t seem too expensive to me.
Remember the old joke about the definition of chutzpah? “The man who killed his parents and then begged the court to have mercy on an orphan.”
Something similar strikes me in Gaudere’s argument.
Liberals have tried for years and years to make the execution of murderers as difficult and costly as possible. And NOW they have the gall to argue that the death penalty should be abolished because it’s so difficult and costly to carry out!
This is both absurd and dishonest. For crying out loud, if you’re opposed to the death penalty on moral grounds, have the courage of your convictions and stick to that line of argument.
And I did address myself to the OP. In bits of course you cut out of responses. My complaint was against you making up numbers and saying “Look it’s not too expensive!”
With the same amount of accuracy I can say it costs $100 billion dollars to execute a person. Therefore it costs too much.
Doesn’t really add much to a discussion, does it?
You have just been shown all the evidence you need - the Fifth and Eighth Amendments, which mentions capital punishment explicitly.
Thus you can either interpret the cruel and unusual clause so as to contradict the rest of the explicit text of the Constitution, or accept that the Constitution excludes capital punishment from the list of candidates of possible cruel or unusual punishment.
No, exactly the opposite.
Okay, let’s see a list of punishments that are specifically allowed for in the Constitution that are un-Constitutional.
No, I am afraid the burden of proof is on you, not me. You need to provide the evidence that says that the Constitution doesn’t say what it says.
Regards,
Shodan
Here’s a metric: if the risk of killing an innocent person is greater than zero, then no amount of money saved is enough to justify using the death penalty.
It wan’t “made up” in the sense that it was a completely random guess. I based my estimate based on the number given in the linked article, which was $1.9m. Even if you accept that number and put a $1 million dollar range of uncertainty on either side, my argument still stands.
No you could not.
But anyway, the OP bears the burden of proof here, since he’s claiming that the death penalty is too expensive. If he cannot sustain his claim, then so be it.
You don’t seem to be getting it here. What the Fifth and Eighth, when read in conjunction, clearly show is that, at the time of drafting, the death penalty was not considered cruel and unusual. I’ve said that already. What it doesn’t show is that the meaning of the Eighth Amendment, which includes language that on its face is comparative (what exactly is cruel punishment?) and in particular invites comparison to the time frame in which the comparison is perfomred (a Wooly Mammoth trundling across the Stepped would not be considered unusual in the days of cavemen, but would, I think, be considered unusual now), is frozen in the time of the drafting of the Bill of Rights.
If that is your argument, that something that was considered not Cruel and Unusual in 1789, or 1791, it can nevermore be considered curel and unusual, then you should explain why you think such comparative language was used. It seems contradictory to the plain meaning of the text to me, and one thing textualists and not textualists agree on is when the meaning is plain, it should be followed.
Now explain to me how that interpretation of the Bill of Rights interprets “the cruel and unusual clause so as to contradict the rest of the explicit text of the Constitution”?
I’m willing to look (when able) for punishments that were imposed post-Bill of Rights, but have more recently been declared cruel and unusual and therefore unconstitutional. I am pretty certain there will be some, but as I have said, that isn’t absolute proof that the C&U standard was intended to be flexible, of course. Even if there aren’t any, it is also not proof that the intention was that the list of acceptable punishments was intended to be frozen in the 18th century. But there you go.
Now, if you can answer my questions, including those where you utterly misrepresent what I have been saying, I would be grateful. I won’t hold my breath, though.