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March 1, 2014

"Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments"

The title of this post is the title of this notable new paper by Charles MacLean and Akram Faizer now available via SSRN.  Both the title and the contents struck me as especially timely with the Supreme Court finally set to hear arguments on Monday about how states can (and cannot) implement its 2002 Eighth Amendment ruling in Atkins. Here is the abstract:

Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment.  Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters.  Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.

March 1, 2014 at 01:47 PM | Permalink


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Federalism for the punishments for pot.

Central control for the punishments for murder.

Now THERE'S a principled position!

Posted by: Bill Otis | Mar 1, 2014 2:29:55 PM

The Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The 14A (in part):

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Whatever "true constitutional analysis" entails (looking to see what is unusual by legislative enactments and actual practice seems to be one "true" way of doing things when applying a national rule like this ... not that it is the only thing done), "state rights" here do not include things "prohibited" including by the 14A.

The 14A was specifically passed because previous discretion to individual states to protect basic rights were found to be unsatisfactory. The amendment set forth a national floor that would specifically be enforced by national actors (though many thought Congress would have a larger role than it does).

If a national ban of among other things 'cruel and unusual' punishments does not include cruel punishments that let's say only two states rarely apply, the term is curious. Such is why that is way generally understood, while these discussions are left to somewhat unconvincing law articles.

Posted by: Joe | Mar 1, 2014 8:19:33 PM

any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual"

As noted in Kennedy v. LA, "The inquiry does not end there," which is obvious since if that was the test, some very benign if rare penalty would be struck down as "cruel and unusual," a rather perverse result. I'm sorry if the article clarifies but the summary comes off as blatantly misleading.

Posted by: Joe | Mar 1, 2014 8:26:59 PM

More vapidity from Joe.

But that's ok--Joe can't swim in the deep water, so he sticks with trite observations.

With respect to cruel and unusual punishments: http://www.crimeandconsequences.com/crimblog/2013/12/remembering-the-s-in-cruel-and.html#more

Joe, intellectual commentary such as that is so far beyond your talent--you should just read and stay in the corner.

Posted by: federalist | Mar 2, 2014 9:19:27 AM

Joe. In 90% of cases, including you and your loved ones, natural death will be prolonged, agonizing, and humiliating. In prison, they will cover themselves by subjecting the prisoner to torturous futile end of life care. No such thing as he's suffered enough, we are letting him go quietly.

Abolitionists have much to answer for to their consciences.

Posted by: Supremacy Claus | Mar 2, 2014 2:03:43 PM

"Abolitionists have much to answer for to their consciences."

Most people do. As to the matter at hand, don't think those who are dying in prison will get the last full measure of care to extend their life. People outside with limited means do not. They have the right to refuse treatment as well.

Some argue that execution is kinder to the prisoner, though relatively few on death row turn out to be "volunteers" that refuse further appeals etc. Still, that argument to me seems to prove too much. We would have to greatly expand the death penalty to be "kind" here. Those rotting in prisons for drug crimes or even theft apparently are being treated better than the worst of the worst who are executed. Twenty years in prison, e.g., is hellish for them even with some chance (when much life is gone) of release.

Society doesn't buy it -- juries etc. give the death penalty, even when it is available, to few people because they think death is worse. Guess a few do it because they think life is worse. Maybe, like Stephen Colbert joked, we should offer them pot.

Posted by: Joe | Mar 2, 2014 2:54:00 PM

Joe. We are arguing policy. We are not condemned ourselves. If you believe the current death penalty is cruel, I am just reminding you of the self evident. LWOP is crueler objectively.. Most people choose to not be executed because of denial. That sentiment is the expression of hard brain wiring for self preservation, no matter the seriousness of the situation.

Posted by: Supremacy Claus | Mar 2, 2014 4:14:02 PM

Cooey used little Jessica as a fuck doll for a week. Then he pu her in a garbage bag, fully conscious with her little blue dolphin, and buried her alive. The jury said, death.

The lawyer said, not so fast, before we have made our $10 million in appellate fees.

Meanwhile, Cooey got anal cancer, a consequence of the human papilloma virus from his lifestyle. He died of cancer, but not before the full court press of the medical profession.

Here is a little taste of it, that cost the taxpayer likely $million, and Cooey many prolonged agonies.


Posted by: Supremacy Claus | Mar 2, 2014 5:43:07 PM

Cooey lived across the trailer court from litle Jessica, when she was taken from her bedroom. He was a well known sex offender, so the police visited him. She was in the frickin' closet at that time.

This episode says what? Registries do not work. Even with a visit from the police, Jessica was taken from us.

Only 123D works. Cooey would have been dispatched before age 18, sparing him anal cancer, and leaving Jessica alive for her family to enjoy her presence on this earth.

Posted by: Supremacy Claus | Mar 2, 2014 5:50:31 PM

"Cooey used little Jessica as a fuck doll for a week. Then he pu her in a garbage bag, fully conscious with her little blue dolphin, and buried her alive. The jury said, death."

I think the correct spelling is Couey. (Cooey was a sick bastard murderer who got his too.)

SC, those aren't the words I would have chosen, but they accurately portray the monstrousness of the murderer. Those who wish to deprive victims' families of justice in such cases (after a death sentence has been pronounced) will get nothing but contempt from me.

Posted by: federalist | Mar 2, 2014 6:24:55 PM

Federalist: Thanks for the correction. We can take some satisfaction from Couey's death. Got a hideous but sexually transmitted cancer in the organ that served justice best. Then he endured unspeakable medical torments for weeks if not months before passing away, rough, nothing you would wish on an enemy.

The point is that an injection at the time of the verdict would have been far more humane than Joe's advocacy that the condemned be allowed to die from natural causes. If Joe wanted to show human kindness to the lowest of us all, the needle was the kindest of all. He has trouble calculating the suffering of the death penalty, which is nil no matter the method, even beheading with a dull rusty axe is kinder than the deaths that await 90% of all of us.

The cruelty of the death penalty is literally impossible.

Posted by: Supremacy Claus | Mar 2, 2014 7:33:15 PM

Joe. You must say something about the wife that helped Couey, probably to save her own life. He likely killed many, many, and she felt quite disposable.

Then, something one never ever hears from abolitionists, a single word about the victims, like little Jessica. Imagine sex with that craggy wrinkled face of Couey, like a horror movie, but real. I have no doubt she strenuosly begged for her life after the realization she was being buried.

As an ordinary human being, say anything. The total radio silence of the abolitionists about victims is disconcerting. Instead of hardy debate adversaries, one suspects they are not even human. You have got to break radio silence on that subject.

Posted by: Supremacy Claus | Mar 2, 2014 8:50:42 PM

People who are against the death penalty, including some people whose loved ones were murdered, talk about the victims. There is no "total radio silence."

The public at large, not "abolitionists" only, think most murderers shouldn't be executed. The few jurors decide deserve it linger in prison for years and the public, again not just "abolitionists" look on w/o much comment.

If this is bad policy, something that should be on their conscience, perhaps the should be the target of your concern, given their numbers.

Posted by: Joe | Mar 3, 2014 7:13:42 PM

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