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September 29, 2013

Boston Globe says "Eric Holder shouldn’t seek death for Dzhokhar Tsarnaev"

This new Boston Globe editorial argues that the top US prosecutor ought not seek the punishment of death for the last living Boston Marathon bomber. Here is part of the paper's pitch:

In the raw days after the Marathon bombing in April, Mayor Tom Menino spoke for many Bostonians when he raised the prospect of executing those who were responsible. Though normally a death penalty opponent, Menino said that the barbarity of the attackers, who killed four people and maimed dozens, might sway him.

Now, as surviving suspect Dzhokhar Tsarnaev faces trial, that question looms for federal prosecutors, who are in the midst of a lengthy process to decide by Oct. 31 whether to seek the 19-year-old’s death by lethal injection. It’s certainly understandable why many friends, family, and supporters of the victims hope prosecutors will seek the ultimate vengeance against the man they believe masterminded the bombing along with his older brother, Tamerlan. Still, Attorney General Eric H. Holder Jr. should decide against it....

In addition to the extra cost of capital prosecutions — cases can exceed $10 million — death penalty cases drag on for years, through numerous appeals. Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims. Many people would feel compelled to defend Tsarnaev on the basis of his youth, lack of past offenses, and being under the influence of his older brother — all factors that would mitigate against a death sentence. Years of proceedings, and their potential culmination in a death sentence, would also give Tsarnaev what he and his brother apparently sought: publicity and notoriety. Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there.

It’s possible that prosecutors are keeping the death penalty on the table primarily to use as leverage against Tsarnaev, hoping that he will agree to plead guilty, skip a trial, and accept life imprisonment in order to save his life. Such a strategy raises worries about fairness under any circumstances, since it puts enormous pressure on defendants to give up their right to a trial. In this case, it’s also unnecessary. The evidence against Tsarnaev is overwhelming, and prosecutors should have nothing to fear from bringing the case to trial.

Beyond the details of this particular case, of course, lies the deeper question of whether the death penalty itself is ever right. There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion. The bombing was a terrorist act aimed at this Commonwealth, where the death penalty has been repeatedly debated and repeatedly rejected. A recent Globe poll found that Boston residents oppose the death penalty for Tsarnaev by a solid margin. Of course, the attorney general should be under no legal obligation to consider the temper of the city. But perhaps it will give him the cover to make the right call. If Massachusetts can reject the death penalty, even after the most awful crimes, so can Holder.

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The 1993 World Trade Center bomber stabbed a prison guard in the eye, with a pencil. The blind sheikh that ordered the bombing is still the subject of negotiations, and may one day be traded for enough hostages taken
by Al Qaeda. You will be getting videos of hostages being tortured, and the pressure on officials could become unbearable.

Europe, Massachusetts, California are big government, rent seeking areas, so they value the lives of criminals above those of victims. As to the argument of cost of death penalty litigation, that is under the full control of the judge, and his appellate superiors. The arguments of the Boston Globe are pretextual, in bad faith (hiding a plunder of the tax payer), morally offensive. The bad faith justifies self help by the families of the victims, including those with amputations. Yes, there is freedom of the press, but they should still be held accountable for dishonest arguments.

Posted by: Supremacy Claus | Sep 29, 2013 12:07:46 PM

Ayman Al Zawahiri was imprisoned for his role in a conspiracy to assassinate Anwar Sadat. Osama Bin Laden was offered to Bill Clinton by the President of Sudan, and was turned down at the suggestion of the DOJ lawyer traitors. Imagine a world where those two leaders of Al Qaeda had been eliminated instead. The lawyer saved their lives.

Our federal government has learned a little.

http://www.infowars.com/reporters-to-reveal-us-assassination-program/

And has been killing instead of rehabilitating terrorists. This has worked. Boston bombing was a beach in this record. It needs to be corrected.

I hate to say this, but if the Boston Globe opposes the death penalty, and the majority of the population agree, they deserve, not this bombing, but the next one.

Posted by: Supremacy Claus | Sep 29, 2013 12:25:49 PM

One thing is clear. Thankfully, the editorial Board of the Boston Globe has no responsibility to execute the criminal law. Rather than do what needs to be done to seek a deserved penalty, if deserved on the facts of this case (it apprears so), they would simply rather give up. Rather than adjust the system so it is not inordinately expensinsive, they would rather surrender. Rather than address the incentive of a coercing a not guilty defendant to plead guilty to save his life, not reasonably at issue in this case, they would rather morally equivocate. In order to avoid publicity, they would rather forget the dead and injured.

These people are not equipped to handle the great responsibilty that comes with being a prosecutor. Thankfully, they are not charged with the responsibility. Some may question whether they are even capable of handling their self-appointed Fourth Estate responsibilities. I do.

Posted by: David | Sep 29, 2013 12:50:52 PM

"There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion."

How many states have abolished the death penalty by a popular vote? Any? I am no expert, but I am confident Mr. Otis will give us the numbers.

Posted by: David | Sep 29, 2013 12:57:45 PM

There is no punishment that adequately addresses the intentionally evil acts of the defendant. The death penalty seems like an easy way out when compared to an actual life sentence.

Posted by: Stanley Feldman | Sep 29, 2013 1:50:26 PM

David --

My memory is that one state, Oregon, abolished the DP by popular vote in 1964, but then reinstated it by a subsequent popular vote (64%) in 1978.

The editorial's statement that "There is no national consensus on the death penalty..." is a point-blank lie. The country favors the DP by 2-1 according to Gallup. That is a considerably higher margin than approves Obama's performance, Obamacare, gay marriage or legalizing pot (not to mention the harder drugs).

So if the paper is to be consistent, it should also support Obama's changing his policies, the Republican plan to delay Obamacare, and opposing gay marriage and pot. Think it's going to do any of that?

Ha!

By the way, the country wants Tsarnaev executed by a margin of 70-27 according to the Washington Post. That margin is a national consensus by any sane measure you want to use. Oddly, the Boston Globe doesn't seem to be able to find it.

P.S. The Globe might also consider putting the matter before a Boston jury and letting it decide based on the specific evidence. But letting the jury decide is EXACTLY what the Globe wants to avoid, very ironically in the name of "popular will."

To be blunt, the editorial is a joke.

Posted by: Bill Otis | Sep 29, 2013 2:42:50 PM

Bill,

The country is not an undifferentiated mass; it is a union of States, a fact that both liberals and conservatives tend to forget whenever it is in their interests. The relevant consensus (vel non) is "a consensus of the sovereign States that form the Union, not a nose count of Americans for and against." Atkins v. Virginia, 536 U.S 304, 346 (2002) (Scalia, J., dissenting). 32 States have the death penalty and 18 do not. 64% is hardly a consensus.

David,

The question whether any States have gotten rid of the death penalty through popular vote is a ridiculous one. How often is ANY legislation accomplished through popular vote? This is a representative democracy (actually, 51 different representative democracies) and the results of the democratic process are generally viewed as representing the views of the people -- again, except when one disagrees with those results, in which case they are ridiculed and dismissed as somehow unrepresentative.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 12:20:46 AM

Bill,

The country is not an undifferentiated mass; it is a union of States, a fact that both liberals and conservatives tend to forget whenever it is in their interests. The relevant consensus (vel non) is "a consensus of the sovereign States that form the Union, not a nose count of Americans for and against." Atkins v. Virginia, 536 U.S 304, 346 (2002) (Scalia, J., dissenting). 32 States have the death penalty and 18 do not. 64% is hardly a consensus.

David,

The question whether any States have gotten rid of the death penalty through popular vote is a ridiculous one. How often is ANY legislation accomplished through popular vote? This is a representative democracy (actually, 51 different representative democracies) and the results of the democratic process are generally viewed as representing the views of the people -- again, except when one disagrees with those results, in which case they are ridiculed and dismissed as somehow unrepresentative.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 12:22:31 AM

Michael J.Z. Mannheimer:

If this isn't a federal crime, what would be rightly so in your differentiated mind?

Posted by: Adamakis | Sep 30, 2013 8:44:17 AM

Adamakis,

Where in my comment did I say this is not a federal crime? Good lord, man, work on your reading comprehension skills! Or are you asking whether it SHOULD BE a federal crime? That's more questionable.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 9:10:11 AM

Prof. Mannheimer --

64% is as much of a consensus as you will get about any even vaguely contentious issue in this country. It is a much greater margin than any president has had in any election.

But I'll play the game with you. Would you require 64% DISapproval of capital punishment before it is to be abolished? The punishment is constitutional, and has a long historical pedigree. How much of a consensus do you think is needed for the courts to say it no longer reflects the will of the country?

Or, to be more blunt, are you just saying that there should be a double standard: That in order to keep it, retentionists must show a really high number, but in order to abolish it, abolitionists only need to show a middling number. Is that how you want it to work?

If so, I don't blame you, but I see no reason for retentionists to go along with the double standard. Why should they?

Posted by: Bill Otis | Sep 30, 2013 9:17:00 AM

Bill,

I honestly don't know where you get the idea that I would think that ANY amount of disapproval should lead to any States being forced to do away with the death penalty. To be blunt: I don't. And that wasn't what we were talking about anyway.

By framing the issue as what we mean by "consensus" on an "even vaguely contentious issue," you really load the deck. If an issue is contentious, then by definition there is no consensus! We have consensus in this country on such issues as whether communism is an effective form of government or whether little duckies are cute. The question is whether there is consensus on the death penalty, not whether there is consensus on the death penalty relative to other really controversial issues. I hardly think that, if the vote is 64 for to 36 against -- not even enough to override a presidential veto -- one could say that there is a consensus in favor without stretching the word beyond recognition. If you think 64% is a consensus, you get pretty close to agreeing with the results in Atkins and Roper.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 9:55:19 AM

Michael --

Rather than go back and forth on the question of what "consensus" means in the context of public policy discussions, it's probably more productive, in the context of the Boston Globe editorial disapproving the DP for Tsarnaev, to just look at the numbers.

One reason the Globe cites in support of its stance is "that there is no national consensus on the death penalty." But if, as the Globe unmistakably implies, the "lack" of a national consensus for X is enough to stop X from going forward, then the Globe should be saying we should not go forward with Obamacare, gay marriage or pot legalization.

Of course it does no such thing.

My point is simply to note that a blatant double standard is being employed against the DP.

The fact is that (1) the country supports the DP 2-1, (2) it supports the DP for Tsarnaev by 70-27, (3) Tsarnaev is unarguably factually guilty, and (4) there is not a shred of evidence that he's mentally deficient to any degree whatever or didn't intend to do what he did.

Given that, do you know of any good reason he should not be executed? Do you favor or oppose his execution?

Posted by: Bill Otis | Sep 30, 2013 11:41:37 AM

Bill, greetings!

You wrote to Prof. Mannheimer that "64% is as much of a consensus as you will get about any even vaguely contentious issue in this country." I beg to differ. There is not more contentious issue currently than "gun control." Yet support for background checks easily tops 64%.

• Quinnipiac University poll, March 26-April 1, 2013. "Do you support or oppose requiring background checks for all gun buyers?" Support: 91 percent. Oppose: 8 percent.

• CBS News poll, March 20-24, 2013. "Would you favor or oppose background checks on all potential gun buyers?" Favor: 90 percent. Oppose: 8 percent.

Posted by: Michael R. Levine | Sep 30, 2013 12:03:45 PM

Michael R. Levine --

Point taken. Thank you. I will amend my statement to read that "64% is as much of a consensus as you will get about ALMOST any even vaguely contentious issue in this country."

I appreciate the correction. But it is still the case that the DP enjoys a greater degree of public support than almost any issue in the crime debate, and certainly more than Obamacare, gay marriage or pot legalization, about which I hadn't notice the Boston Globe having any qualms whatever.

Posted by: Bill Otis | Sep 30, 2013 12:28:24 PM

Bill,

I oppose his execution because the penalty of death is not authorized by the Commonwealth of Massachusetts, where the crime occurred. Boom.

If you want to talk about double standards, let's talk about conservatives who completely forget about federalism when it might get in the way of a project they really, really love, like executing murderers. But that's sort of the definition of integrity: standing up for a principle even when it gets in the way of something you really, really love. Otherwise, having integrity would be easy. (Bill, let me be clear that I am in no way insinuating that you personally lack integrity; I have no idea what your stance is on federalism in general).

But let me not forget about liberals who feel queasy about "states' rights" arguments because they are so damned ignorant about their own country that they think that federalism completely evaporated at Appomattox Court House.

So, on this issue, I stand virtually alone, which convinces me more than anything else that I am right.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 12:43:16 PM

MJZM:

Truly, yours must be the worst use of the word "Boom" in the blogosphere's history.

Posted by: C | Sep 30, 2013 1:58:04 PM

"Bill,

I oppose his execution because the penalty of death is not authorized by the Commonwealth of Massachusetts, where the crime occurred. Boom."

"Adamakis,

Where in my comment did I say this is not a federal crime? Good lord, man, work on your reading comprehension skills!" -- Michael J.Z. Mannheimer

So, that "the penalty of death is not authorized
by the Commonwealth of Massachusetts",
is relevant in which recondite way?

Posted by: Adamakis | Sep 30, 2013 2:06:07 PM

It's not that federalism completely evaporated at Appotamatox, it's that the question of the supremacy of federal law on federal issues evaporated when the ninth state ratified the Constitution. The state of Massachusetts does not have a veto power on the application of federal law within its border, nor should it.

Barring a claim that the federal law in this case is outside the scope given to the federal government by the Constitution, the essence of federal law is to have uniformity across the country regardless of in which state an act occurred. If state-specific treatment is appropriate, than there should not be a federal law. Assuming that this type of case is appropriately covered by federal law, it should not matter that this act occurred in Massachusetts instead of Texas.

Posted by: tmm | Sep 30, 2013 3:02:02 PM

C,

Let me take back the "Boom." Wasn't even thinking.

Adamakis,

Read my work. I really have neither the time nor inclination to explain 8+ years of exhaustive legal research in this forum.

tmm,

"[T]he essence of federal law is to have uniformity across the country regardless of in which state an act occurred." Except when the Bill of Rights demands that federal law apply non-uniformly. Do you accept that the question of what is obscene, and therefore not protected by the First Amendment, might differ from place to place? Do you accept that the quality of lawyering, and therefore the minimal professional standards demanded by the Sixth Amendment, might differ from place to place? The Supreme Court has said both of these things.

But even more fundamentally, explain why "the essence of federal law is to have uniformity across the country regardless of in which state an act occurred." No, seriously. Rather than just repeating the conventional wisdom, try to defend it. I've explained here and elsewhere that the capacious phrases of the Bill of Rights -- "cruel and unusual punishment," "due process of law," "unreasonable searches and seizures" -- were understood by many as importing state norms into federal constitutional constraints. They were designed to trump the Supremacy Clause, which makes any argument that they are TRUMPED BY the Supremacy Clause nonsensical.

So please respond. Please explain why, at least when it comes to these provisions of the Bill of Rights, "the essence of federal law is to have uniformity across the country regardless of in which state an act occurred." Explain without resorting to bromides, or platitudes, or mantras. Just explain it.

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 3:54:18 PM

Prof. Mannheimer --

"I oppose his execution because the penalty of death is not authorized by the Commonwealth of Massachusetts, where the crime occurred. Boom.""

I support his execution because he deserves it in spades. Do you disagree?

I also support it because the penalty of death is authorized by the United States, where the crime occurred (and also because, being explicitly a terrorist attack, it implicates obvious national concerns).

"So, on this issue, I stand virtually alone, which convinces me more than anything else that I am right."

You would very likely be alone if you favored human sacrifice, too. Would your aloneness convince you you were right?

More generally, assuming you were not being facetious, does being alone on other questions, when many other people with no less intelligence and good faith have reached the opposite conclusion, also convince you you're right? Why? When I stand alone, and contrary to other people I know are smart and informed, this generally causes me to want to re-examine my position, rather than become more in stone about it. Am I taking the wrong stance?

Posted by: Bill Otis | Sep 30, 2013 4:12:59 PM

Professor Mannheimer:

On all of the provisions of the Bill of Rights, I take the position that the standard is the same everywhere in the United States. The Bill of Rights as incorporated to the states do not allow one state to deny speech just because the public there is offended by the speech, the Bill of Rights does not guarantee a better counsel in Florida than it does in Texas, and, as the US Supreme Court has held, what is a reasonable search and seizure does not depend on state law. The Bill of Rights may have incorporated in the common law restrictions as they existed at the time, it did not impose state law restrictions on the federal government so that the federal government could do X in Pennsylvania but not in Virginia.

If the purpose of federal law is not to have uniformity across state lines, why have federal law? Aren't the states perfectly competent to decide legal matters as they see fit without federal interference in the absence of a federal interest that applies equally to all states. I am all for limits on the federal power to constrain it to those matters that are appropriate for federal authority, but I think the Supreme Court would rightly strike down any federal law that established different sentencing ranges depending on the district in which the offense occurred. Do you think such a statute would be constitutional?

Posted by: tmm | Sep 30, 2013 5:11:15 PM

Bill,

The term "terrorist attack" is unsatisfying to me as an attorney. What makes a killing part of a "terrorist attack" such that the federal government should take cognizance of it? That it got a lot of national press coverage? Then I suppose David Berkowitz's murders or Mark David Chapman's were "terrorist attack[s.]" That it affects commerce? Then I suppose the early-morning destruction of a tiny newsstand with an explosive device, with no casualties, would be a "terrorist attack." The term is too slippery to give any guidance. I prefer to call Tsarnaev's act what it is -- murder -- which has a well-defined meaning and a specific punishment under the law of the Commonwealth of Massachusetts.

Does he deserve the death penalty? Probably, unless there are strong mitigating factors we don't know about. But, again, I would leave that determination to the people of the Commonwealth of Massachusetts rather than arrogate it to myself, or to you.

"When I stand alone, and contrary to other people I know are smart and informed, this generally causes me to want to re-examine my position, rather than become more in stone about it." Oh, I absolutely agree. If others would engage with this issue and try to show me why I'm wrong, I would gladly hear them out. But, for the reasons I've stated, they don't engage. They ignore history and repeat mantras about how the federal Bill of Rights must be interpreted uniformly throughout the nation. Why? Because . . . well . . . it just must be, that's all!

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 5:37:03 PM

tmm,

"The Bill of Rights as incorporated to the states . . . ." A non-sequitur. I am not talking about the Fourteenth Amendment. I am talking about the Bill of Rights.

"The Bill of Rights may have incorporated in the common law restrictions as they existed at the time, it did not impose state law restrictions on the federal government so that the federal government could do X in Pennsylvania but not in Virginia." Conclusory. Explain why that is so.

"If the purpose of federal law is not to have uniformity across state lines, why have federal law?" Straw man argument. I'm not arguing that federal law is GENERALLY disuniform. It is generally uniform but some of the provisions of the Bill of Rights carve out particular areas where it is not.

Let me answer your final question with a similar question: Do you think it would be constitutional for Congress to pass a law granting federal officers different search and seizure powers depending on the State they are in?

Posted by: Michael J.Z. Mannheimer | Sep 30, 2013 5:49:06 PM

“Read my work. I really have neither the time nor inclination to explain 8+ years of exhaustive legal research..” -- Michael J.Z. Mannheimer

There may be little to be gained from engaging with such an erudite one, so I shall address the forum following these 5 exquisite gems:

1.“Does he deserve the death penalty? Probably”

2. “I oppose his execution because the penalty of death is not authorized by the Commonwealth of Massachusetts, where the crime occurred. Boom.”

3. “Where in my comment did I say this is not a federal crime? Good lord, man, work on your reading comprehension skills!"

4. “But, again, I would leave that determination to the people of the Commonwealth of Massachusetts”

5. “So, on this issue, I stand virtually alone, which convinces me more than anything else that I am right.”

One might rightly say that the eminent Mannheimer possesses that sort of rare gnostic wisdom
unattainable to ordinary plebeians such as myself,
short of “8+ years of exhaustive legal research”.

Posted by: Adamakis | Oct 1, 2013 10:04:56 AM

Previously, I provided this to Prof. Mannheimer:

1. "The first federal execution was on June 25, 1790," {RI had been the last state to ratify the Constitution on May 29, 1790;}
2. The "First US Congress Establishes Federal Death Penalty" on April 30, 1790, {In 1787 the 5th and 14th Amendments recognizing it with due process}.
3. "Death Penalty Used in All 13 US Colonies at Outbreak of American Revolution"; G. Washington ordered executions during the Revolution.
4. One of 56 signers of the Declaration of Independence is known to have not favoured the penalty {B. Rush}.
~~Pbs.org, Gwu.org, Procon.org

When presented by these and other facts broadcasting the stark obviousness that the founding fathers did not view execution ascruel and unusual” punishment,
he failed to substantively address this, apparently having “neither the time nor inclination to explain” [away] probative history.

His statement at the time was:
Adamakis: If you have discovered a source that tells you what all 3 million inhabitants of the U.S. meant in 1791 by "cruel and unusual punishments,"
please do tell me where to find it..

His are the evolving values of the democratic underground, whilst his demiurgic dogma must be acquiesced by seeking some “higher” law,
perhaps that of his own design; certainly not that of the Founding Fathers.

Posted by: Adamakis | Oct 1, 2013 10:15:39 AM

Adamakis,

"[T]he founding fathers did not view execution as `cruel and unusual' punishment."

I have never, ever, ever argued that they did. If you can make a non-straw-man argument, and in a coherent fashion, I will respond. I'm not holding my breath.

Posted by: Michael J.Z. Mannheimer | Oct 1, 2013 12:30:09 PM

No straw man. Your words, man.

Posted by: Adamakis | Oct 1, 2013 1:55:25 PM

Here's an interesting anecdote. Shortly after my article "When the Federal Death Penalty is Cruel and Unusual" -- arguing that the federal death penalty in non-death penalty States is "cruel and unusual punishment" -- was published, someone from the Nancy Grace Show called and asked if I would appear. I agreed. In prepping me for the show, the producer asked me to articulate my view that the death penalty is cruel and unusual punishment. I told him that was not my view and asked him if he'd read the article -- OR EVEN THE TITLE! Apparently, someone on the show had seen a title with the words "death penalty" and "cruel and unusual" and somehow assumed that my position was that the death penalty is cruel and unusual punishment.

Point: there are lots of monstrously stupid people in this world with almost zero reading comprehension skills.

So let me make this so absolutely clear that even Adamakis can understand it: I DO NOT THINK THE DEATH PENALTY IS CRUEL AND UNUSUAL PUNISHMENT; I DO NOT THINK THE FRAMERS OF THE EIGHTH AMENDMENT BELIEVED THE DEATH PENALTY WAS CRUEL AND UNUSUAL PUNISHMENT; I DO THINK THAT AT LEAST SOME OF THE FRAMERS VIEWED THE TERM "CRUEL AND UNUSUAL" IN A STATE-SPECIFIC WAY SO THAT A PUNISHMENT, INCLUDING THE DEATH PENALTY, COULD BE "CRUEL AND UNUSUAL" IN ONE STATE BUT NOT ANOTHER, WHEN IMPOSED BY THE FEDERAL GOVERNMENT.

I welcome intelligent people, such as tmm and Bill Otis, to engage me in this, the argument I am ACTUALLY MAKING. If you are not smart enough to even comprehend the argument that I am actually making, then please stop commenting.

Posted by: Michael J.Z. Mannheimer | Oct 1, 2013 2:53:14 PM

Once you say some of the Framers, it becomes impossible to argue because the Framers were a diverse group with different opinions. My personal conclusion from my own research and publications was that the dominant theory underlying the constitution was a national popular sovereignty in which "We the People" imposed constraints on the federal government. Even that theory was not necessarily a consensus as you had some -- Washington being a prime example -- who believed in the sovereignty of the federal government even under the Articles of Confederation despite the plain text to the contrary in the Articles of Confederation, and others who hewed more to the Anti-Federalist position and still saw the Constitution as more of a treaty than a sovereign goverment.

Given the understood rules on how to interpret a text at the time of the Framing, it seems to me a stretch that most of the Framers would have viewed the same provision in the Constitution intended to form a more perfect union as having different meanings in different states. Of course, how you define the Framers -- members of the First Congress, Madison, the various state legislators, the unelected chattering class of the day -- for the Bill of Rights influences what conclusion you draw about the intent of the Framers).

Additionally, what you view about the Bill of Rights at the time of its adoption also has to be considered in light of the adoption of the Fourteenth Amendment. The Civil War Amendments profoundly altered the relationship between the national governments and the state government. In incorporating the Bill of Rights to apply to the states, did those amendments require a uniform national interpretation of those provisions (assuming that there was no uniform interpretation before Civil War).

Posted by: tmm | Oct 1, 2013 6:23:24 PM

"[T]he founding fathers did not view execution as `cruel and unusual' punishment."

Given they also didn't think as a whole branding, ear cropping and flogging with thirty-nine lashes was either, that is of only limited value to me. I have to determine what it cruel and unusual today.

Also, some did think it was as applied to various crimes (contra a regime where it could be applied to felony theft). A few were like Benjamin Rush:

In an essay upon the effects of public punishments upon criminals and upon society, published in the second volume of the American Museum, I hinted, in a short paragraph, at the injustice of punishing murder by death. I shall attempt in the following essay, to support that opinion, and to answer all the objections that have been urged against it.

http://press-pubs.uchicago.edu/founders/documents/amendVIIIs16.html

I am against the death penalty and think a strong constitutional argument can be placed against it per the usual arguments particularly in certain cases (see, e.g., the fine book "Wild Justice" by Evan J. Mandery), but agree with tmm on the constitutional argument set forth above.

It is a valid policy argument when determining prosecutorial discretion and congressional policy but it breaks down by setting it as a constitutional demand. It also is simply not how it was understood generally over the years, including by the courts. It is possible to go that route though it very well might lead to the federalism application used for other amendments such as the 4A ("reasonable," constitutionally, based on state law).

Posted by: Joe | Oct 1, 2013 9:22:32 PM

Joe,

1. "Given they also didn't think as a whole branding, ear cropping and flogging with thirty-nine lashes was either, that is of only limited value to me. I have to determine what it cruel and unusual today." But that is part of what makes my theory normatively attractive. The requirements of the Cruel and Unusual Punishments Clause evolve over time, but not according to the whims of five unelected judges. They evolve -- again, at least as applied to the federal government -- based on changes made in the States.

2. I do not believe there is any evidence that Rush believed that the death penalty was "cruel and unusual punishment." He was against it, yes. But you are making the same mistake many liberals do: if I am against something, it must be unconstitutional.

tmm,

1. "[T]he Framers were a diverse group with different opinions." EXACTLY! So anytime anyone claims to tell us what "the Framers" thought, except at a very high level of generality, they are generally full of crap. But I have argued that when it comes to the Bill of Rights, we should look to the general states-rights orientation of the Anti-Federalists, because the Bill represents a concession to the Anti-Federalists from the Federalists, without which the Constitution never would have been ratified. Employing the same interpretive strategy vis-à-vis the Bill of Rights that we do regarding the main body of the Constitution is a mistake: the latter represents a Federalist victory, while the former represents an Anti-Federalist victory.

2. "[W]hat you view about the Bill of Rights at the time of its adoption also has to be considered in light of the adoption of the Fourteenth Amendment." Only if you do not care about original meaning. By what strange alchemy do the events of 1868 alter the meaning of a document written in 1791? I suppose it's the same strange alchemy that allows grown adults to claim with a straight face that the Due Process Clause of 1791 incorporates the Equal Protection Clause written 77 years later! No. Whatever way the Fourteenth Amendment alters the relation of the States to their own citizens, it could not possibly change the original understanding of words written three quarters of a century earlier, which regulate the relation between the federal government and ITS citizens

Posted by: Michael J.Z. Mannheimer | Oct 2, 2013 10:21:41 AM

1. I think it evolves as a national matter. If whipping was legal in one state, I don't think the feds would as applied to that state have the power to give a convicted horse thief thirty-nine lashes.

2. "if I am against something, it must be unconstitutional" With respect, no, I'm not, and I find that a tiresome canard, unless you clearly can back it up.

Rush says at that link that the death penalty is "contrary to reason" is contrary to "republican governments" and is in fact an "offering to monarchy." Do you have evidence where he says "unreasonable" punishments are authorized ones? That acts that are not republican are legitimate use of governmental power in a republic?

He was a minority viewpoint and if he thought his stance had to become more normative for the 8A to be violated, fine enough -- I don't know really how he determined how to apply constitutional terms in that sense. But, if it was a matter of applying principle, using his argument, the death penalty would be cruel and unusual, particularly if 'unusual' retains not meaning 'not authorized by law.'

Posted by: Joe | Oct 2, 2013 12:59:55 PM

Professor Mannheimer, the Fourteenth Amendment also alters the relationship between the federal government and the states. It further ties the rights of national citizenship to the rights of state citizenship. There at least seems to me to be a colorable argument that -- if you accept the theory that it was intended to incorporate the Bill of Rights as rules binding the state government, whether as a matter of due process or of privileges and immunity -- the Framers of the Fourteenth Amendment thereby placed those rules above changing state laws (even if you accept that previously they were not).

Posted by: tmm | Oct 2, 2013 4:48:44 PM

Sixth Commandment: Thou Shalt Not Kill. There is no exception which states: Y'all Can. Give him life in prison and keep him away from the perps because he is punk bait. Give him a choice and by choice, give him a noose to hang on a hook at the top of his cell and allow him to commit suicide. But life without parole and protection from getting punked.

Posted by: Liberty1st | Oct 2, 2013 5:24:33 PM

tmm,

Let's test your hypothesis that the Fourteenth Amendment changes the meaning of the Eighth. Assume I am right that the Eighth Amendment was originally understood as forbidding the imposition by the federal government of any punishment not authorized by the State where the crime occurred. I know you don't accept the premise but accept it for the sake of argument just to test the hypothesis that the Fourteenth Amendment has some relevance to the meaning of the Eighth. That means that from 1846 to 1868, the federal government was forbidden from executing anyone for crimes they committed in Michigan. But, on your view, after 1868, the federal government was permitted to do so. How could that possibly be? The Fourteenth Amendment has always been thought of as liberty-enhancing, not liberty-diminishing. Yet the liberty interest that a Michigan resident held from 1846 to 1868 as a matter or federal constitutional law not to be subjected to the death penalty by the federal government suddenly vanished in 1868? More to the point, why would the State of Michigan ratify a constitutional provision that so radically cuts back on its own sovereign powers and so drastically impairs the federal constitutional rights of its people?

The argument is implausible. The premise -- that the Eighth Amendment was originally understood as preventing the federal government from imposing any punishment not authorized by the State where the crime occurred -- has to stand or fall on its own. The Fourteenth Amendment simply has nothing to do with it.

Posted by: Michael J.Z. Mannheimer | Oct 3, 2013 9:28:26 AM

Professor, your assumption implies that the people in the Michigan ssumed in 1868 that the Bill of Rights as a whole might give people more protection in some states than in others and that such a protection was significant. (If the differences were minor, then the benefits of uniformity might outweigh the slight cost of a theoretical veto power over federal criminal law.) If that was not the understanding, they could easily agree to a provision that established a uniform rule.

In the immediate aftermath of the Civil War, protecting the state sovereignty of the states that remained in the union would potentially have carried less weight than restricting the perceived abuses of that sovereignty the states that took up arms against the union. Additionally, if you accept the theory that the Fourteenth Amendment -- primarily through the privileges and immunity clause -- gave citizens uniform national protections against their state governments, that infringement on state sovereignty and the powers of the state government are potentially more substantial than any loss of a power to give its citizens additional protection against the federal government.

Furthermore, a uniform rule is neither liberty enhancing nor liberty denying across the board. By the contrary example, under your theory, the federal government might be able to impose a very harsh punishment in Michigan because its state law allowed it before 1868. After 1868, using a uniform standard, neither the state nor the federal government could impose that punishment because under the national standard it was cruel and unusual. Agreeing to uniformity in that situation would be liberty enhancing.

Posted by: tmm | Oct 3, 2013 10:45:18 AM

| “I would substitute the word "power" for "right" when it comes to the State's power to kill. The Constitution of the United States talks about Rights when it addresses the Rights of persons and "Powers" when it addresses the federal entity and the individual states. People individually have rights, states have powers.”|

True, and this “power” was recognised by the Pilgrims, and the Puritans, and in every colony,
and by the U.S. government as soon as her Constitution was legally effected:

1. "The first federal execution was on June 25, 1790," {RI had been the last state to ratify the Constitution on May 29, 1790;}
2. The "First US Congress Establishes Federal Death Penalty" on April 30, 1790, {In 1787 the 5th and 14th Amendments recognizing it with due process}.
3."Death Penalty Used in All 13 US Colonies at Outbreak of American Revolution"; G. Washington ordered executions during the Revolution.
4. One of 56 signers of the Declaration of Independence is known to have not favoured the penalty {B. Rush}.
~~Pbs.org, Gwu.org, Procon.org

Posted by: Adamakis | Jan 27, 2014 2:57:29 PM

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