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NolaAuTiger

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

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Hidalgo v. Arizona. Interesting issues indeed. This case has made SCOTUS conference list ten times (seven times this year), and its still unclear if and when they'll take the case.

Issues: (1) Whether Arizona's capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

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To the second question, probably not, but arguable. Is it good policy? Another question.

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2 minutes ago, TexasTiger said:

To the second question, probably not, but arguable. Is it good policy? Another question.

Agreed. The textualist in me cannot help but recall, when reading the 8th Amendment, the death penalty was in use when the framers wrote the Bill of Rights. It was the punishment for virtually every felony. From that perspective, one cannot say that its unconstitutional. The constitution also doesn't prescribe the death penalty. Thus, it should only be banned by legislation, not on constitutional grounds. I'm also vary weary of a Court considering the issue on such grounds - it tampers with democracy. 

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5 minutes ago, TexasTiger said:

To the second question, probably not, but arguable. Is it good policy? Another question.

 

I would say the 5th Amendment even sanctions the death penalty.  While I personally oppose the death penalty, and consider the way we treat the condemned prior to executing them to be torture, I do think it is perfectly constitutional.  That executions took place while everyone that signed the Constitution was still alive is a good indicator that at least a majority did not take issue with the practice.

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1 minute ago, Strychnine said:

 

I would say the 5th Amendment even sanctions the death penalty.  While I personally oppose the death penalty, and consider the way we treat the condemned prior to executing them to be torture, I do think it is perfectly constitutional.  That executions took place while everyone that signed the Constitution was still alive is a good indicator that at least a majority did not take issue with the practice.

If the death penalty was banned legislatively, what would you anticipate as the biggest hurdle?

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10 minutes ago, NolaAuTiger said:

If the death penalty was banned legislatively, what would you anticipate as the biggest hurdle?

Demagoguery.

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I’m not sure as to the constitutional question. I’m just not qualified to say. I’m opposed for two reasons primarily. 

1.  We have executed innocent people. This is unacceptable. Being imperfect people, we cannot guarantee this won’t happen again. And unlike a prison sentence, there’s no real way to make it up to someone. You can’t correct the mistake because the sentence is final. 

2.  I don’t think the data shows it’s really effective, nor is it less expensive than simply a life sentence. So just on utilitarian grounds I think it’s bad policy. 

There are other reasons, but these are my main ones. 

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The constitutionality has been litigated time and time again. There are myriad cases on the matter, as well as the Constitution itself. 

A closely related question is "is it ethical or justifiable?" That one gets a resounding no from me. It's a relic from a bygone era that needs to go away. 

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33 minutes ago, AUDub said:

The constitutionality has been litigated time and time again. There are myriad cases on the matter, as well as the Constitution itself. 

A closely related question is "is it ethical or justifiable?" That one gets a resounding no from me. It's a relic from a bygone era that needs to go away. 

To your question, who do you think is in the better position to provide the answer, courts or legislature? I would say the latter. If it needs to go away, I don’t believe it’s the court’s position to determine so.

Edited by NolaAuTiger

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53 minutes ago, TitanTiger said:

I’m not sure as to the constitutional question. I’m just not qualified to say. I’m opposed for two reasons primarily. 

1.  We have executed innocent people. This is unacceptable. Being imperfect people, we cannot guarantee this won’t happen again. And unlike a prison sentence, there’s no real way to make it up to someone. You can’t correct the mistake because the sentence is final. 

2.  I don’t think the data shows it’s really effective, nor is it less expensive than simply a life sentence. So just on utilitarian grounds I think it’s bad policy. 

There are other reasons, but these are my main ones. 

And that’s certainly respectable. My post, as I think you know, is really geared towards the Constitutional matter presented in the case and if the judiciary should have the ultimate say (taking into account elements such as bicameralism and Sep of Powers). See my response to Dub also. For democracy purposes, I think a great danger looms when unelected officials take it upon themselves to make this sort of determination. It is undisputable that the Framers  didn’t conceive capital punishment as running afoul the Constitution. While it is not explicitly authorized either, that too supports the view that the Legislature should make the decision.

Your points are well taken. I think they show more reason for centending that the legislature, not the courts, should have the final say.

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8 minutes ago, NolaAuTiger said:

Haha I was thinking more in procedural terms 

Nothing. It’s not required by the Constitution. Given the huge discrepancy in outcome based on finances, leaving this decision to the state is problematic.

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9 minutes ago, TexasTiger said:

Nothing. It’s not required by the Constitution. Given the huge discrepancy in outcome based on finances, leaving this decision to the state is problematic.

I’m not sure I’m following you. It’s probelmatic to leave it to State Legislators? Could you expound a little bit, I.e., in that they don’t have authority? Or do you mean it’s problematic based on extrinsic considerations (those outside of constitutional/sep of powers issues).

 

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1 hour ago, NolaAuTiger said:

I’m not sure I’m following you. It’s probelmatic to leave it to State Legislators? Could you expound a little bit, I.e., in that they don’t have authority? Or do you mean it’s problematic based on extrinsic considerations (those outside of constitutional/sep of powers issues).

 

Legislators have the authority. The justice system often comes down to who can afford justice. Overworked public defenders can be overwhelmed with capital cases and court appointed attorneys may not be that committed. 

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6 minutes ago, TexasTiger said:

Legislators have the authority. The justice system often comes down to who can afford justice. Overworked public defenders can be overwhelmed with capital cases and court appointed attorneys may not be that committed. 

I’d have to disagree with with everything after the first sentence, with the only exception being towards your statement about public defenders. 

I’ll add, there’s much debate re public defender qualifications for representing those facing execution.

Anyways, I think we agree on the overall issue at hand in the case.

Edited by NolaAuTiger

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18 minutes ago, NolaAuTiger said:

I’d have to disagree with with everything after the first sentence, with the only exception being towards your statement about public defenders. 

I’ll add, there’s much debate re public defender qualifications for representing those facing execution.

Anyways, I think we agree on the overall issue at hand in the case.

You disagree that “the justice system often comes down to who can afford justice?”

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9 minutes ago, TitanTiger said:

You disagree that “the justice system often comes down to who can afford justice?”

Yes. Especially in civil cases. In criminal court, it plays a much larger role. But I don’t think it often disctates the operation of the justice system.

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43 minutes ago, NolaAuTiger said:

Yes. Especially in civil cases. In criminal court, it plays a much larger role. But I don’t think it often disctates the operation of the justice system.

I think given that we were discussing the death penalty, it’s safe to assume Tex was speaking primarily of criminal cases. But I disagree that it doesn’t dictate how justice plays out. Put it this way:  a poor OJ never gets acquitted. I’d bet my house on it. Well off clients can afford better and more attorneys. Poor ones are stuck with whoever they get, possibly an overworked and underpaid public defender.  And the data seems to show that that does make a difference. 

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28 minutes ago, TitanTiger said:

I think given that we were discussing the death penalty, it’s safe to assume Tex was speaking primarily of criminal cases. But I disagree that it doesn’t dictate how justice plays out. Put it this way:  a poor OJ never gets acquitted. I’d bet my house on it. Well off clients can afford better and more attorneys. Poor ones are stuck with whoever they get, possibly an overworked and underpaid public defender.  And the data seems to show that that does make a difference. 

It plays a role “sometimes” but not “often”. I have been intricately involved with the justice system (kind of like you were involved in conservative circles during the Clinton years - if you recall telling me that). The general but-for cause of incarceration of defendant’s whom were represented by public defenders is not because they lacked finances. And the probability that they would’ve gotten off of a charge had they been represented privately doesn’t “often” increase. I mean, when we are talking incarceration, we aren’t talking about petty drug dealers. Such an assertion represents ignorance of reality. The vast majority of cases do not go to trial, it’s not even close. And the vast majority of guilty pleas stem from actual guilt, not compromise because of a lack of finances. Am I saying that one cannot point to cases where finances indeed did play a role in the outcome - no. But to qualify the assertion with “often” is a misconception.

Edited by NolaAuTiger
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14 minutes ago, NolaAuTiger said:

It plays a role “sometimes” but not “often”. I have been intricately involved with the justice system (kind of like you were involved in conservative circles during the Clinton years - if you recall telling me that). The general but-for cause of incarceration of defendant’s whom were represented by public defenders is not because they lacked finances. And the probability that they would’ve gotten off of a charge had they been represented privately doesn’t “often” increase. I mean, when we are talking incarceration, we aren’t talking about petty drug dealers. Such an assertion represents ignorance of reality. The vast majority of cases do not go to trial, it’s not even close. And the vast majority of guilty pleas stem from actual guilt, not compromise because of a lack of finances. Am I saying that one cannot point to cases where finances indeed did play a role in the outcome - no. But to qualify the assertion with “often” is a misconception.

But again, the context here is death penalty cases, not petty drug offenses and whatnot. Do you believe the quality of representation doesn’t make a difference there?  And do you believe that typically, the ability to afford a better legal team helps over a public defender?

Put another way, if you were facing a death penalty sentence for a crime you didn’t commit, which situation would you want to be in...relying on a public defender, or mortgaging the house and clearing out the 401k to get the best firm you could afford to represent you?

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1 minute ago, TitanTiger said:

But again, the context here is death penalty cases, not petty drug offenses and whatnot. Do you believe the quality of representation doesn’t make a difference there?  And do you believe that typically, the ability to afford a better legal team helps over a public defender?

Put another way, if you were facing a death penalty sentence for a crime you didn’t commit, which situation would you want to be in...relying on a public defender, or mortgaging the house and clearing out the 401k to get the best firm you could afford to represent you?

Honestly, it’s hard to say. Inmates facing the death penalty committed such egregious crimes, the level of representation usually won’t do much to help their case. I will say, in some instances, I suppose the quality of counsel makes a difference in the ability to negotiate a better deal, assuming the prosecution allows it on the table. 

Well of course the latter. But I also think  it safe to assume over 99% of those on execution row are in fact guilty. I think your hypothetical creates the scenario that MIGHT make up .03% of actual death row cases. Trust me, our judicial system isn’t killing innocent men, certainly not “often.”

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2 hours ago, NolaAuTiger said:

Honestly, it’s hard to say. Inmates facing the death penalty committed such egregious crimes, the level of representation usually won’t do much to help their case. I will say, in some instances, I suppose the quality of counsel makes a difference in the ability to negotiate a better deal, assuming the prosecution allows it on the table. 

Well of course the latter. But I also think  it safe to assume over 99% of those on execution row are in fact guilty. I think your hypothetical creates the scenario that MIGHT make up .03% of actual death row cases. Trust me, our judicial system isn’t killing innocent men, certainly not “often.”

The biggest miscarriage of justice is that it takes 20-25 years for murderers and rapists to get what they deserve.

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4 hours ago, NolaAuTiger said:

Well of course the latter. But I also think  it safe to assume over 99% of those on execution row are in fact guilty. I think your hypothetical creates the scenario that MIGHT make up .03% of actual death row cases. Trust me, our judicial system isn’t killing innocent men, certainly not “often.”

Once is too many, but it's happened far more than just once.  Just one non-profit, The Innocence Project, has exonerated 20 people through DNA evidence who were on death row.  How many more have there been over the years who were executed before DNA evidence was available?

I'd rather a 1000 people be locked away til they die than end up executing one innocent person.  If we screwed up on a life sentence, we might not be able to give them back the years they lost, but we can set them free and pay them some monetary restitution.  But dead is dead.  It's over.  It can't be fixed.

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12 hours ago, TitanTiger said:

Once is too many, but it's happened far more than just once.  Just one non-profit, The Innocence Project, has exonerated 20 people through DNA evidence who were on death row.  How many more have there been over the years who were executed before DNA evidence was available?

I'd rather a 1000 people be locked away til they die than end up executing one innocent person.  If we screwed up on a life sentence, we might not be able to give them back the years they lost, but we can set them free and pay them some monetary restitution.  But dead is dead.  It's over.  It can't be fixed.

And let's not forget our history of racial bias when applying the death penality.

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