If one is to advance the argument that the term “cruel and unusual punishment” is compelling enough to lead us to disregard the actual text of two sections of the Constitution, then it would have to be accepted that the text of the Constitution was intended to be disregarded based upon the contemporary views of somewhat ambiguous phrases.
If we are free to disregard some of the text of the Constitution based upon other parts of the text of the Constitution, then I’m afraid we’ve gotten into a game in which our rights are based upon how strongly our courts feel about one particular phrase of the Constitution, rather than the rule of law.
This could have adverse consequences in other ways. For example, the requirement for due process could be claimed by Dick Cheney and others to override the requirement to allow someone a lawyer to defend himself against terrorism-related offenses. After all, if our understanding of what constitutes “due process” has advanced so much in the last eight years due to Cheney’s enlightened views on the subject, surely we should not be bound by the centuries-old Sixth Amendment.
If we follow this logic, we can see that all the Sixth Amendment shows is that in 1789, defense lawyers were considered part of a just trial. So, shouldn’t the changing of the times allow us to establish a definition of justice and due process that could be so elegant as to render that archaic provision obsolete? Why, we could just pretend that the text of the Sixth Amendment doesn’t exist because our society has advanced to such a better application of the Fifth and Fourteenth Amendments, perhaps as demonstrated in Guantanamo.
No. “Interpreting” the Constitution so it contradicts itself is not interpretation, it is violation.
Didn’t you read what Bricker has posted?
Emphasis added.
I understand what you are saying just fine. It is wrong, as I and the Supreme effing Court have pointed out.
I will repeat - would it be legitimate to interpret the cruel and unusual clause to say that Congress may interfere with freedom of the press? That would not be a contradiction, right? Or do you think that argumentum ad absurdum doesn’t apply to Constitutional law?
Not a lot of hard info in this thread, so I will try to present some. Deathpenaltyinfo.org has a listing of cost related information. Recently a California commission created by California’s legislature presented its findings after an in depth analysis of their justice system. The report is linked here. The commission found that death penalty cases took to long to resolve and that it was difficult to find competent defense counsel for the accused and made recommendations to improve that. The commission’s analysis of the costs of the death penalty in California breaks down as follows:
Annual cost of present system: $137 million
Annual cost with reforms: $232 million
Annual cost of system with maximum penalty of life without parole: $11.5 million
I bet the state of California could put $125 million to much more beneficial use than trying and executing felons.
The problem with this analysis is that even if less than 100 people get executed nationwide per year, there are many times that sitting on death row and in the various stages of their appeals. These cases take longer to get through the system.
Say you have a small rural county in the state that has an annual budget of $20 million or less. If the first homicide in 10 or 15 years in the county occurs, does it make sense for the county to incur the expense of seeking the death penalty for this one case?
I think the difference between these is simple. The 6th Amendment guarantees the right to counsel. It says flat out that the criminally accused shall “have the Assistance of Counsel for his defense.” The constitutional provisions that show that the death penalty wasn’t cruel and unusual at the time don’t say “the state shall have the right to execute.” They say that the state shall not execute absent a fair trial.
If there was a constitutional provision that said “the state shall have the right to put people to death after a fair trial” I would agree absolutely that the cruel and unusual clause could not say that the death penalty per se was unconstitutional. But that is not the situation we are in. The statement that “for you to be allowed to do Y you must first do X” does not guarantee a right to do Y, if doing Y can be shown, under a different statement, to have become not allowed. What it indicates strongly is that, at the time the statement was made, doing Y was considered permissible.
It’s a fundamentally different situation to the one with the right to counsel, which is explicitly guaranteed as an individual right. That’s why I don’t see it as disregarding any part of the constitution. Instead I see it as interpreting the text of the constitution based on its clear meaning.
I’m not sure I understand your point. Presumably the state would still be paying to incarcerate these people even if they were not sitting on death row.
Thank you. It’s difficult to translate this into a national figure. One can be pretty confident that Texas is a lot more efficient than California. And places like New York and New Jersey probably spend a good deal less, since the death penalty is so rarely sought.
Seems to me it’s reasonable to put an upper limit of $1b per year on the cost of capital punishment. Still worth it, IMO, but perhaps the system needs to be reformed.
I don’t think this is particularly relevant. If the DP was legislatively enacted as a punishment for that particular crime then the DA should seek it if they feel the case merits it. The people of the state, through their representatives, have made the decision to sanction its use, and presumably the concomitant decision to support its costs. If they don’t want expensive punishments, they can revoke the DP as a punishment for those crimes. It’s a little late once the law is written to start complaining about how expensive your legal code enforcement is.
Actually all three would be relevant. Act of Congress as regards to federal crimes; popular opinion is mentioned by Warren in one of the cases Bricker quoted; and a court could rule (eventually the Supreme Court obviously) that the DP was now “cruel and unusual.”
Obviously public opinion on its own doesn’t do squat. But I think Warren makes clear it is a factor in the determination of what is considered cruel.
I’m trying to think of some other government practice that was specifically included in the Constitution at the time of its drafting, which has subsequently been ruled unconstitutional based upon changing views of the public, laws passed by Congress, or by ruling of the courts – anything short of a constitutional amendment. Can you think of anything? I’m afraid I’m stumped and don’t even know where to begin looking.
Well I am not sure there is another provision in the constitution like the “cruel and unusual” clause which is written in such a way as to invite consideration of changing views of the public, etc.
And there isn’t a specific power of government to execute in the Consitution. There is a statement that if you are going to imprison or execute, you must provide the person with certain protections. Which again does not guarantee the state the right to execute people in perpetuity, but instead indicates that, at the time of drafting, execution was constitutional.
And I will admit to misreading your question before. I don’t think a law banning executions would by itslef make executions unconstitutional, just like public opinion wouldn’t make them unconstitutional - what I meant is that a law could ban executions without that law being unconstitutional, but that isn’t what you asked… Both the legislative and public climate, however, are I think relevant to whether a law is “cruel and unusual.”
Cost is always relevant. If cost had no bearing on a case, then public defenders would have no problem getting approval for lots of expensive forensic science testing and expert witness testimony in defense of their clients, but that isn’t the case. Judges have to make tough calls on these sorts of things all the time. I certainly don’t believe that no expense should be spared in providing for an individual’s defense. Expenditures in that area should be reasonable, and if they cease being reasonable, then hard choices should be made that comport with the Constitution (such as prosecuting less people/decriminalizing certain offenses). The same is true of the death penalty. If the procedures put in place to ensure that the accused receives due process and innocent people aren’t executed end up making the expense prohibitive, then use of the death penalty should be severly curtailed if not eliminated completely.
And just because it’s part of the law of a state doesn’t mean any sort of thorough cost/benefit analysis has been applied. It’s just as likely that the representatives who proposed and enacted a law did so to make a political statement to their constituents (“I’m tough on crime”). Circumstances can change. Look at the information on California that I linked above. As it stands now they’re spending a significant amount of money, and the commission examing their justice system concluded that the current procedures aren’t doing the job. To do the job right is estimated to cost nearly $100 million more. Is the death penalty worth that much more? Is it worth what they’re paying now? Is the current slow process and lack of competent representation acceptable in a democratic society? Presenting the debate in terms of dollars and cents clarifies the costs in terms that effect everyone and I think it’s a good tactic by the anti-death penalty crowd.
Well, if there is no other specific text of the Constitution which has subsequently been ruled unconstitutional without intervention of an amendment, at least we can agree that this argument is breaking new ground.
No agreement, Ravenman, unless you can show me “specific text” that would be ruled unconstitutional by a finding that the death penalty was cruel and unusual.
If it costs a million to execute a killer, what could that money have been spent on to lessen the likelihood of a killer being created? Or are we just going to accept resignedly that there is no way to prevent crimes we deem worthy of the death penalty?