All that demonstrates is that at the time of writing of the Constitution, the death penalty was constitutional.
I’m opposed to the death penalty but only because the error rate is so high. Too many innocent people get convicted (and vice versa, yes) because of the high unreliability of the criminal justice system. Whatever one’s views of the morality of execution, the prospect of life in the slammer is more palatable mainly because of the possibility of reversal or parole. But it’s still pretty grim.
If there were no death penalty, would there still be the same resources devoted to investigating the cases of prisoners who got life sentences instead? The likelihood of their actual innocence would still be unchanged (and still occur at an intolerable rate, as it does now), but wouldn’t the protections and guarantees be lessened due to lack of urgency driven by moral judgment? I seriously doubt it. Fewer errors are likely to be corrected, and more innocent people would rot away. And that doesn’t get into the matter of how many death-row inmates die naturally, anyway.
How much more does it cost to litigate appeals in a capital case than a life case now, and how much difference would there be if there were no capital cases? Isn’t that difference, not the absolute amount, the appropriate calculation within this context?
I guess what I don’t understand is this.
First, I thought I read someplace that juries are more willing to give a ‘Guilty’ if the death penalty isn’t involved. They relax the standards, so to speak. To me, that seems that without a DP, then more innocent people might get convicted, and that with the DP fewer innocents would be convicted.
Second, as noted, it’s the appeals process that makes it so expensive compared to a life sentence. So Lifers aren’t appealing as much as Death Rowers? Are we giving DRers more access to the appeals process? If we eliminate the DP, will more Lifers start appealing, driving up the cost of a life sentence? Is a person, even if guilty, more likely to appeal with a death sentence, whereas they’d sit back and be content to a life sentence?
I have a hard time believing that a given person would exhaust the appeal process when given a death sentence, but would just sit back and relax if it was a life sentence.
AHHH!!! Our streams just crossed, and I think my mind just blew up. 
The alternative is that fewer guilty people might walk free.
Well, one of my big complaints against the DP is how it distorts other sentencing, in particular its use to “coerce” plea bargains out of less rock solid cases. Plea bargained sentences cannot be appealed in the same way, because they involve an admission of guilt.
Shouldn’t it, then, remain Constitutional until an amendment is passed?
I can see a state government saying “While we understand that the Death Penalty is Constitutional, we have decided NOT to use it.”, and I think the FF’s would, too.
Only if you assume that “Cruel and Unusual” was meant to suggest a standard fixed in time at the definition of “Cruel and Unusual” towards the end of the 18th century. And that doesn’t seem to make sense to me given the text.
There is hope.
Why?
If the FF’s wanted to ensure that only “fair and just” punishments would ever be administered by the courts, why use a phrase that could (& would) be twisted to mean anything at anytime, based on the courts (and the “mob”/jury) of the day?
Wouldn’t the reverse situation be also a possibilty? (The reverse being that a state decides it’s own definition of “cruel and unusual”, incuding one that would be “cruel”, from the viewpoint of the FF.)
“We, the citizen’s of the Commonwealth of Virginia, have decided that execution by “burning at the stake” is not “cruel or unusual” during our witch/warlock infested times. Therefore <yada yada>”
I think they drew a line that they intended to remain static. I think they used the values they carried with them based on their era. I don’t think they wanted the definition to be wholey arbitrary.
Never-the-less, it’s still not “set in stone” for all ages. Amend the Constitution!
That’s a legitimate argument, but it doesn’t seem to coincide with the use of “unusual” in it. Were “cruel” punishments to be banned, I would be more open to the possibility the intention was to create a line in the sand at that period of time.
As for what happens if VA decides burning at the stake isn’t C&U? Well, after incorporation, if the federal courts decide it is, tough titties for the Commonwealth.
Absolutely. Many methods of execution in wide use at the time of the Bill of Rights’ adoption have later fallen to the “cruel and unusual” axe. Lesser punishments have also been prohibited, such as beatings by prison guards or life in prison for a non-violent felony.
The distinction, though, is that the Court is free to say “beatings by prison guards are per se unconstitutional,” because there’s nothing in the Constitution to suggest otherwise. But the Court can’t credibly say that death is per se unconstitutional, because it’s explicitly permitted by the Constitution.
One thing the Court can do is decide that particular methods of inflicting death are unconstitutional; this is what’s brought us from the hangman’s noose to the lethal injection of today. It doesn’t offend the Constitution to say that death by hanging is cruel and unusual, since the Constitution doesn’t mention hanging. But you cannot erase the fact that the document itself does contemplate imposition of the death penalty.
Doesn’t make it right or wise.
If it were that easy, we could save even more money by canceling all trials as well, and just instantly put the guilty people in jail, and let the innocent go!
Yes, we liberals are crazy like that. :dubious:
Because the Fifth and Eighth Amendments state that the DP is allowed. “Interpreting” the cruel and unusual clause to disallow the DP contradicts that.
You want proof that the Constitution should not be interpreted so that one part contradicts the others? I am afraid that comes under the “Too Silly to Address” heading.
Put it this way - please show proof that the cruel and unusual clause does not mean that Congress may interfere with freedom of the press.
Whatever. In my experience, this is what people say when their only argument has been refuted.
Regards,
Shodan
Yes, but you’d have to find punishments that were explicitly allowed by the Constitution that were later considered to be cruel and unusual, and therefore banned, which, I fear, is impossible.
Throughout this segment of the debate, I have a vision of a people sitting around having a beer, and one announcing that he’s going on a run to the 7-11. He asks if anyone wants anything, and someone responds, “Yeah, you can get me a Red Bull, or a tofu dog, or a anchovy pizza, but just don’t get me anything that’s gross.” The runner wouldn’t have a leg to stand on to argue that Red Bull, tofu dogs, and anchovy pizzas were unwanted because the person didn’t want anything “gross.”
That’s my point, kind of. Was the determination that beatings by prison guards were always (in a temporal sense, not in the snese of all beatings today) unconstitutional because they had always been cruel and unusual, or did were they unconstitutional now because they were now cruel and unusual.
The Warren quote you used before seems to suggest a standard that includes current mores…
“Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.” (emphasis added).
The fact that, and I don’t dispute it (seeing as it would be foolish to do so), the constitution explicitly mentions the death penalty means only that it was constitutional at the time, and, by extension, that it was not considered cruel and unusual at the time. Nor, presumably, were beatings by prison officers. Unless we view the standard of what is cruel and unusual as being frozen in time, and I still don’t see any reason for that, there is nothing contradictory, is there, in saying that the death penalty was constitutional at the time of the drafting of the Bill of Rights, but because of societal changes, it is now no longer constitutional?
And, by the way, I don’t think we have reached that point yet. I think it is still constitutional, though not as applied.
No disagreement with any of this, though I am quoting it more to show the ridiculous nature of the decisions. Hanging is a much more civilized way of execution from what I have read than lethal injection. Certainly than electrocution.
And yes - it is neither right nor wise. It certainly was constitutional in 1791. It almost certainly in my mind still is constitutional in 2009. Where we break agreement is whether, in 2050, it will automatically still be constitutional absent an Amendment.
An obvious answer to the expense issue is to have a public lottery to finance the death penalty for the most repulsive and dangerous of candidates.
Each state could post a list on its website of Deserving Dirtbags Of The Month (or Quarter, or Year, depending on budget constraints). The winner by popular vote gets prompt court filings, expedited DNA testing, investigations into unknown third parties who allegedly did the crime etc. The result is a relatively fast and pricey (but possibly not as expensive as the current system) march to the scaffold. Losers of the popular vote get life without possibility of parole, which as we know is not cruel and unusual punishment that jeopardizes anyone’s life.
For it to be absolute proof, yes. For it to be a relevant data point, no. That’s why the decisions which rule the punishment as unconstitutional are interesting. If beating by prison guards has ALWAYS been C&U, just not recognized as such before, then it doesn’t help me. If the ruling is that such beatings weren’t C&U then, but are now, then it at least indicates that the standard by which we view constitutionality under that clause is modern mores…
Now, the fact that the death penalty was explicitly stated in the constitution to be permissible, and therefore clearly was not considered at the time to be C&U, does not prevent it being considered C&U now, unless that standard was intended to be unchanging and unrelated to the mores of the present time.
What the 5th and 8th show, as everyone agrees, is that the DP was allowed at the time.
Can you not even admit that, **if **the “cruel and unusual” clause was intended to be interpreted in light of the morality and social standards of the time at which the judgment regarding a punishment’s constitutionality, rather than in light of 1791 morality and social standards, there would be no contradiction in the 5th listing DP as a potential penalty, but it being unconstitutional in the present day, if modern morality and social standards had sufficiently changed from 1790?
Just that. I know you don’t think that is the meaning of the Eighth Amendment. But if that were to be the meaning (as I, others here, and some pretty impressive legal thinkers have argued), don’t you see how there wouldn’t be a contradiction any more? I’m honestly trying to find out here if you just don’t understand what I am saying or if you are simply stating that my method of constitutional analysis is wrong, and your’s is right.
If I ever go to see a trial, remind me never to sit behind that side if the courtroom.