Does Death Penalty Violate 8th Amendment - Cruel & Unusual Punishment?

[NolaAuTiger 3,295]

12 minutes ago, homersapien said:

You've certainly been acting like a jerk.

 

How so? 

You’re the one who STILL hasn’t acknowledged my kind statements over the past couple of days. ?

[TitanTiger 20,472]

On 3/17/2018 at 3:54 PM, NolaAuTiger said:

Again, innocent people being put to death on execution row is not by any means the norm.

Ok, I'll say that "not the norm" isn't enough.  It should be "not ever."  If it can't be "not ever," then it needs to be abolished.  Because executing innocent people would definitely fall under "cruel and unusual punishment."

[NolaAuTiger 3,295]

9 hours ago, TitanTiger said:

Ok, I'll say that "not the norm" isn't enough.  It should be "not ever."  If it can't be "not ever," then it needs to be abolished.  Because executing innocent people would definitely fall under "cruel and unusual punishment."

Putting an innocent man behind bars is a miscarriage of justice. But that in no way voids a constitutional provision. The past 200 years of legal thought wouldn’t even support such a claim as yours. 

You’re not speaking to the issue. If you think it should be abolished, great. That’s not what the concern is. Who has the proper authority to abolish it? You’re getting hung up on whether or not it should be abolished, when the issue doesn’t even require one to make such a choice.

In other words, whether or not it should exist need not have any bearing on one’s view of which branch has the proper authority to dictate such a practice. It’s like Roe v Wade. There’s plenty of liberal scholars who strongly disagreed with “substantive due process” as that court applied it, while also supporting pro-choice ideals.

Man, like I’m not even arguing about whether it should be abolished or not.

So for example, if it’s abolished, I think it would be the proper authority of Congress instead of the court. If the court made the decision, they would effectively be legislating from the bench which tampers with democracy. Furthermore, we know that the death penalty was not unconstitutional at the time the framers wrote the bill of rights. Thus, if we now decide it is, it is not the court’s place to change the constitution. Rather, it should be done legislatively per the constitutionally prescribed process (bicameralism and presentment).

[TitanTiger 20,472]

49 minutes ago, NolaAuTiger said:

Putting an innocent man behind bars is a miscarriage of justice. But that in no way voids a constitutional provision. The past 200 years of legal thought wouldn’t even support such a claim as yours. 

As previously stated, not all miscarriages of justice are created equal.  For instance, in countries where they cut off your hand for stealing, if you put the guy in jail for 12-24 months for theft, you can let him go early if you discover the error and pay him for his lost wages and pain and suffering.  But you can't give him back his hand.  You've permanently maimed him.  Even worse with capital offenses, if you put an innocent man behind bars, you have certainly taken something away from him, but you can correct the mistake and set him free and offer financial restitution.  It's not perfect, but it's at least something.  But an execution is final.  There's nothing you can do to remedy the error once they're dead.  

So yes, I think that being unable to prevent the execution of innocent people would call into question whether the penalty is "cruel and unusual."

 

Quote

You’re not speaking to the issue. If you think it should be abolished, great. That’s not what the concern is. Who has the proper authority to abolish it? You’re getting hung up on whether or not it should be abolished, when the issue doesn’t even require one to make such a choice.

In other words, whether or not it should exist need not have any bearing on one’s view of which branch has the proper authority to dictate such a practice. It’s like Roe v Wade. There’s plenty of liberal scholars who strongly disagreed with “substantive due process” as that court applied it, while also supporting pro-choice ideals.

I don't know.  I already told you I don't feel legally qualified to say.  I just believe that one way or the other, it needs to happen.  And while obviously the mechanisms are important to you (they aren't unimportant to me either), my priority is the people affected not the mechanisms of how they get justice.

[NolaAuTiger 3,295]

1 hour ago, TitanTiger said:

As previously stated, not all miscarriages of justice are created equal.  For instance, in countries where they cut off your hand for stealing, if you put the guy in jail for 12-24 months for theft, you can let him go early if you discover the error and pay him for his lost wages and pain and suffering.  But you can't give him back his hand.  You've permanently maimed him.  Even worse with capital offenses, if you put an innocent man behind bars, you have certainly taken something away from him, but you can correct the mistake and set him free and offer financial restitution.  It's not perfect, but it's at least something.  But an execution is final.  There's nothing you can do to remedy the error once they're dead.  

So yes, I think that being unable to prevent the execution of innocent people would call into question whether the penalty is "cruel and unusual."

 

I don't know.  I already told you I don't feel legally qualified to say.  I just believe that one way or the other, it needs to happen.  And while obviously the mechanisms are important to you (they aren't unimportant to me either), my priority is the people affected not the mechanisms of how they get justice.

I understand your concerns in general. Exactly how to remedy such concerns is another can of worms - the one I was intending to explore via the case cited. 

What i find fascinating and challenging about such issues is that they require one to examine with a detached eye. Obviously, as this thread reveals, that's not easy to do. 

[TitanTiger 20,472]

1 hour ago, NolaAuTiger said:

I understand your concerns in general. Exactly how to remedy such concerns is another can of worms - the one I was intending to explore via the case cited. 

What i find fascinating and challenging about such issues is that they require one to examine with a detached eye. Obviously, as this thread reveals, that's not easy to do. 

Well you're right, but I don't necessarily think that's a bad thing when you're talking about life and death issues.  I'm not sure one should remain "detached" when it comes to ending a person's life.  I don't think that necessarily means you're dominated by simple sentimentality either.  It's just a recognition that this isn't just any other academic exercise.

[NolaAuTiger 3,295]

1 hour ago, TitanTiger said:

Well you're right, but I don't necessarily think that's a bad thing when you're talking about life and death issues.  I'm not sure one should remain "detached" when it comes to ending a person's life.  I don't think that necessarily means you're dominated by simple sentimentality either.  It's just a recognition that this isn't just any other academic exercise.

I think you misunderstood me. "Detached eye" applies in the sense of contemplating which branch of government should make the determination. Thus, one with a detached eye wouldn't just say "I don't care who does it, just do it." They'd contemplate constitutional elements and other sources to ensure that it is accomplished through the correct mechanisms, lest we tamper with democracy and flirt with overreach. That's the exact reason people want to litigate these things, file amicus briefs, etc. The necessity of which is all the more essential when it comes to sensitive, hotbed topics such as the death penalty, representing child rapists, murders, etc. As you know, supplementing democracy for the sake of emotion is a dangerous thing. You know this is a profound topic to be addressed, thus the necessity to be all the more careful when regulating it is crucial.

Again, I think the legislature is the proper branch over this issue. 

[TitanTiger 20,472]

3 minutes ago, NolaAuTiger said:

I think you misunderstood me. "Detached eye" applies in the sense of contemplating which branch of government should make the determination. Thus, one with a detached eye wouldn't just say "I don't care who does it, just do it." They'd contemplate constitutional elements and other sources to ensure that it is accomplished through the correct mechanisms, lest we tamper with democracy and flirt with overreach. That's the exact reason people want to litigate these things, file amicus briefs, etc. The necessity of which is all the more essential when it comes to sensitive, hotbed topics such as the death penalty, representing child rapists, murders, etc. As you know, supplementing democracy for the sake of emotion is a dangerous thing. You know this is a profound topic to be addressed, thus the necessity to be all the more careful when regulating it is crucial.

Again, I think the legislature is the proper branch over this issue. 

I think the legislature is probably the best mechanism also, in my decidedly layman's opinion.  But I don't necessarily think that a ruling from the courts that it doesn't meet the "cruel and unusual" standard would be wrong, depending on the exact reasoning. 

[NolaAuTiger 3,295]

Just now, TitanTiger said:

But I don't necessarily think that a ruling from the courts that it doesn't meet the "cruel and unusual" standard would be wrong, depending on the exact reasoning.

That hits the nail on the head. Lots of issue at play. And to compound the complexity, SCOTUS justices differ on the answer drastically. 

[AUDub 11,147]

Sessions with the red meat.

https://www.reuters.com/article/us-usa-opioids-deathpenalty/attorney-general-tells-prosecutors-to-seek-death-penalty-in-drug-cases-idUSKBN1GX25A?il=0

Can we start with the pharmaceutical companies, Jeff? How about the breweries and distilleries? Cigarette companies?

[AuburnNTexas 7,140]

On 3/17/2018 at 3:54 PM, NolaAuTiger said:

Again, innocent people being put to death on execution row is not by any means the norm. Also, the legitimacy of your concern doesn’t really speak to whether or not the court should decide the issue.

Back on topic though. Let’s not derail the focus, please.

 Constitutionally speaking, the court should punt. 

I agree with Titan on his points on why he is against the death Penalty. But since your point was one is it Constitutional. I think the fact that the people who wrote the Constitution used it makes it Constitutional. However the Constitution does not expressly approve it so based on separation of Power in the Constitution it should be the legislature that does away with it.

Over the years we have allowed both the Judicial and the Executive branches both to take on roles that really were laid out for the Legislative  branch. Executive order by Obama allowed the Dreamers to have certain rights that the current law did not allow. Trump executive order overrode Obama's. Obama should have worked with the legislature at that time to change the law as should Trump now. That is an area where the executive overstepped their bounds. The Judicial Branch had to twist the law into the shape of a pretzel to allow Obamacare to remain as it was written.

So bottom line is I agree with you the court should punt and I am all for the Legislatures in the states where capital punishment is still allowed to change the law.

[NolaAuTiger 3,295]

1 hour ago, AuburnNTexas said:

I agree with Titan on his points on why he is against the death Penalty. But since your point was one is it Constitutional. I think the fact that the people who wrote the Constitution used it makes it Constitutional. However the Constitution does not expressly approve it so based on separation of Power in the Constitution it should be the legislature that does away with it.

Over the years we have allowed both the Judicial and the Executive branches both to take on roles that really were laid out for the Legislative  branch. Executive order by Obama allowed the Dreamers to have certain rights that the current law did not allow. Trump executive order overrode Obama's. Obama should have worked with the legislature at that time to change the law as should Trump now. That is an area where the executive overstepped their bounds. The Judicial Branch had to twist the law into the shape of a pretzel to allow Obamacare to remain as it was written.

So bottom line is I agree with you the court should punt and I am all for the Legislatures in the states where capital punishment is still allowed to change the law.

Yep. Granted, there are Supreme Court Justices who would disagree with me and you (perhaps Justice Stevens -now retired- being one of them. I would certainly think Breyer disagrees). Whereas Scalia undoubtedly would have affirmed our position. 

And on @TitanTiger points, just to add, they are not invalid in the sense that he used them. By his own admission, he wasn't trying to speak to which branch of government should decide the issue. I could've done a better job elucidating from the beginning. I think he would adhere to a Scalia-like approach that you and I hold on the issue. In fact, Scalia has made it explicit that he deems it wrong to say the death penalty is unconstitutional precisely because the framers were aware of its practice and it wasn't banned under the eighth amendment. 

This isn't to say it can never be deemed unconstitutional. However, if that ever happens to be (it is determined unconstitutional), it should be deemed so through prescribed process (i.e., amendment with consent of the people), not through a majority vote of unelected officials appointed for life. 

[homersapien 11,367]

6 hours ago, AUDub said:

Sessions with the red meat.

https://www.reuters.com/article/us-usa-opioids-deathpenalty/attorney-general-tells-prosecutors-to-seek-death-penalty-in-drug-cases-idUSKBN1GX25A?il=0

Can we start with the pharmaceutical companies, Jeff? How about the breweries and distilleries? Cigarette companies?

Yeah, let's at least start at the actual source of this problem.  This is a diversion from focusing on the people actually responsible. 

'Course, they are very rich.....

[NolaAuTiger 3,295]

The aim of this thread is to discuss Constitutional principles and democracy in making informed reasons on why the Supreme Court should or shouldn't decide if the death penally violates the Eight Amendment. And in that same vein, whether one believes the death penalty is unconstitutional in the first place - which, based on my resort to how the eighth amendment was understood in 1791, I hold it is not. 

[Strychnine 1,802]

8 minutes ago, NolaAuTiger said:

The aim of this thread is to discuss Constitutional principles and democracy in making informed reasons on why the Supreme Court should or shouldn't decide if the death penally violates the Eight Amendment. And in that same vein, whether one believes the death penalty is unconstitutional in the first place - which, based on my resort to how the eighth amendment was understood in 1791, I hold it is not. 

 

Based on the text of the Constitution, and the obvious intent of the people that signed it, the death penalty is definitely not unconstitutional.  The first death sentence was handed down by a federal court in 1790.  The 1st President of the United States was in a position to commute and advocate against the death penalty.  He did not.  As practiced, I believe it to be immoral, but I think it is perfectly Constitutional.  If nothing else, I think the Fifth Amendment ensures its status as Constitutional.  As the Fifth Amendment says:  "...nor be deprived of life, liberty, or property, without due process of law..."  That indicates that those who ratified it believed that the government could deprive you of your life, as long as there was due process of law.