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March 12, 2010

"Judging Cruelty"

The title of this post is the title of this new and notable Eighth Amendment piece from Meghan Ryan that is now available via SSRN.  Here is te abstract:

The wisdom of the death penalty has recently come under attack in a number of states.  This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states — either politically or constitutionally — to similarly abandon the punishment. Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual.  If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U.S. Constitution.

Considering the disappearance of some punishments and emergence of new punishments, whether a punishment is cruel under the Punishments Clause is an important question. Curiously, there has been very little discussion of what constitutes a cruel punishment, as distinguished from whether a punishment is also unusual.  This Article examines the concept of cruelty as enshrined in the Eighth Amendment Punishments Clause and suggests that the Supreme Court ought to focus on this elusive concept through its independent judgment analysis.  The Article emphasizes that such an independent judgment focus on cruelty should be constrained by specific, identified factors and that these factors should go beyond examining the penological purposes of punishment.  The Article asserts that motive and the nature and quality of a punishment are central to the concept of cruelty and suggests that a more nuanced understanding of punishment rationales, supplemented by factors focused on elements such as the bloody or lingering nature of the punishment, is necessary in properly determining whether a punishment is cruel under the Punishments Clause.

March 12, 2010 at 04:58 PM | Permalink


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1) The death penalty is not a punishment. There is no reduction in the frequency behavior by the punished person. There is no more person.

2) Almost no method of execution is crueler than what awaits 90% of us, prolonged, agonizing, humiliating deaths. And no, the dying are not spared harassment by lawyers. Those final days are filled with legal disputes and worries. So shooting people in the head is quick, painless, and dignified compared to the months consumed by a death from AIDS or cancer. The sole cruelty of the death penalty is the set date. Not even the terminally ill has to face that painful knowledge.

3) Execution is unusual, but by its painlessness and quickness, and togetherness with the important people in one's life invited to witness it. LWOP or commutation condemns the murderer to an ordinary and crueler death of natural causes in a prison.

These points are self-evident, but totally invisible to the lawyer. He does not even recognize as being in English. No comprende. All of a sudden, it's, no speak.

Posted by: Supremacy Claus | Mar 12, 2010 9:07:22 PM

"Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual."
That's some crappy writing.

Posted by: federalist | Mar 13, 2010 7:57:09 AM

The death penalty is extremely psychologically cruel. My son was given a long sentence (for something he didn't do) and the most painful part of it for both he and his loved ones, was the thought that our fellow man WANTED to do this to us. Nobody in this red, red community consoled or comforted us as they would have if we had cancer. The accuser and her mother got to get up at the sentencing and screech vile curses at us. (Never mind that the mother had filed for divorce and was at that time living with a new man, sleeping in my son's bed, and conceiving a bastard there.) I will never again have faith in my fellow man. My grandson has to go to school with some of the kids who joined in the pointing and cursing. It is cruel. If it had been the death sentence, I don't know what I would have done.

Posted by: DLJ | Mar 13, 2010 10:35:00 AM

The lawyer running the criminal law is an incompetent dumbass. It does nothing right. Then this dumbass dealt itself absolute immunity from accountability for its negligence and incompetence. This corrupt self-dealing is appalling.

Furthermore, the whole system appears to be a bunco operation. Right now, they are targeting productive males. The slightest complaint by skanky sluts result in massive work and fees for them, so the system is totally rigged airtight against the productive male, to plunder his assets. If the victim and defendant had a relationship, there is almost a guarantee, the allegations are retaliatory and either false or exaggerated. Then the same judge bends over backwards to coddle real criminals devastating our neighborhoods and victimizing strangers, including a series of women.

These lying sluts, using the willing system for retaliation, should serve the guideline proposed prison sentences of the falsely accused. If the lawyer knew of the falsity, she should go to prison too. The judge must compensate the falsely accused defendant for any prison time at the salary rate of the defendant. If the defendant suffered a trauma in prison, the judge must make him whole. Let this incompetent carry personal liability insurance. The taxpayer should not be punished for his incompetence unless seated by election. Then the public is at fault for electing an incompetent. The public should pay to the last bucket from the last fire station. Seize the assets of the government entity. To deter.

These immunities and biases, with no present legal remedy, morally and intellectually justify self-help and street justice against the internal traitors.

Posted by: Supremacy Claus | Mar 13, 2010 11:57:27 AM

"That's some crappy writing."

This from the guy who doesn't capitalize his name.

Posted by: JC | Mar 13, 2010 1:34:41 PM

pretty weak, JC.

Posted by: federalist | Mar 13, 2010 7:54:16 PM

Not nearly as weak as you, my friend.

Posted by: JC | Mar 13, 2010 10:55:26 PM

I was hoping that in the section covering grossly disproportionate sentences as cruel and unusual punishment the author would discuss as applied constitutional challenges as well as facial challenges, in the capital context. All the discussion in the capital context were facial challenges, Atkins, Kennedy, Simmons. All the discussions of applied challenges were about noncapital cases, Solem, Harmelin, Ewing.

What about an as applied eighth amendment challenge to a death sentence, arguing that the punishment of death is grossly disproportionate under the facts of the case?

It seems to me that the state of the law in the eighth amendment arena is solidly based on Justice Kennedy's three step test in his concurring opinion in Harmelin. Seven of the nine in Ewing v California employed Kennedy's test (Scalia and Thomas remain stuck on their notion that the Eight amendment prohibits only boiling in oil and other "modes" of punishment)

My prediction, based on comments by Roberts and Alito during oral argument, is that the juve LWOP cases, Sullivan and Graham, will reinforce the use of an individualized as applied approach to cruel and unusual punishment issues.

Add to this mix the Court's Sixth Amendment jurisprudence in Ring v Arizona, whereby capital murder is a greater offense than what Scalia calls murder simpliciter, and you have what is to me a very interesting question. Suppose the aggravating factor which convicts the def of capital murder is a real stretch, more a function of prosecutorial creativity than solid law. Can a def who receives death under such a scenario make an eighth amendment challenge based on considerations applying solely to him?

What I am raising is different than the state statutory vehicle of "proportionality review" as a matter of state law. Proportionality review, as done by the state supreme court, omits Justice Kennedy's interjurisdictional comparison step, which, in my opinion, is now constitutionally required.

bruce cunningham

Posted by: bruce cunningham | Mar 14, 2010 1:07:59 AM

JC, have you always been such a twit or did you have to work at it?

Posted by: federalist | Mar 14, 2010 2:39:05 PM

Antagonizing you seems to be a natural talent of mine, actually.

Posted by: JC | Mar 14, 2010 9:31:14 PM

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