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April 10, 2006

Trans-coastal lethal injection inspections

Returning to the lethal injection scrummages, this story from North Carolina suggests that state may be starting down the same rocky road that California has been traversing of late:

A federal judge has ordered North Carolina prison officials to tell him by noon Wednesday how they will comply with an order requiring medically trained personnel to ensure death row inmate Willie Brown Jr. is unconscious during his April 21 execution.

U.S. District Court Judge Malcolm Howard's April 7 order puts North Carolina in a similar predicament to what California prison officials experienced two months ago before their execution process was derailed by a similar legal challenge.  In February, California prison officials were unable to find anesthesiologists willing to make sure Michael Morales, a rapist and killer, was unconscious when paralyzing and heart-stopping drugs were administered.  Doctors refused to participate, citing ethical concerns, and Morales wasn't executed.

This morning, North Carolina prison officials were still reviewing Howard's order and were unable to comment about their response.

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April 10, 2006 at 06:12 PM | Permalink


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The lethal injection cases present the Supreme Court with an opportunity to correct a fundamental misreading of the "cruel and unusual punishments" clause that has led to judicial intervention in the political question of whether capital punishment represents good social policy and has dragged the courts into micromanaging the details of executions.

The eighth amendment, adopted long before the equal protection clause of the fourteenth amendment, prohibits "cruel AND unusual punishments". Equating this to a prohibition of "cruel OR unusual" punishments, and prohibiting a cruel punishment that is not unusual, is a misreading of both the language and the purpose of the eighth amendment. The drafters of the eighth amendment did not intend to prohibit hanging, flogging, and other punishments that were cruel by the standards of their time (let alone by our modern "more evolved" standards) so long as the punishment was uniformly applied. Nor were they seeking to abolish unusual punishments that aren't cruel. No one would argue that creative sentencing per se (e.g. requiring a litterbug to pick up trash) violates the constitution. Rather, it is the conjunction of the cruel with the unusual that is prohibited.

Deciding whether a punishment is "cruel" as contemplated in the eighth amendment is by its nature subjective. Given that every punishment is cruel to some degree, any reasonable interpretation requires that the punishment be excessively cruel. The constitution seems silent as to whether this excess relates solely to the degree of physical (? and psychological) cruelty inherent in the punishment or whether the excess is to be measured in proportion to the crime in keeping with the biblical "eye for an eye" theory of justice.

The most natural meaning of an "unusual" punishment is a punishment other than the common or customary punishment meted out to others in similar circumstances. Unusual does not equate with rare. The fact that a punishment is rarely inflicted need not mean that is is "unusual" if the reason for the rarity of the punishment is the rarity of the crime.

Prior to adoption of the fourteenth amendment, the cruel and unusual punishments clause, by prohibiting infliction of cruel punishment that was also unusual, in effect served as an equal protection provision in the area of punishment. Assume that hanging is a cruel punishment. If hanging is the usual sentence for horse thieves, hanging all horse thieves, although cruel, is not unusual and is thus constitutional. This remains true even if hanging horse thieves is rare because only one horse thief has been caught in many years. However, if the usual sentence for horse theft is six months in jail, singling out one horse thief for hanging would be both cruel and unusual and thus prohibited by the eighth amendment as well as by the fourteenth.

The framers intended the eighth amendment "cruel and unusual punishments" clause as an important protection against cruel ad hominem punishment. It was not intended to shift the inherently political question of what types of punishments we allow in our society from the legislatures to the courts. By giving proper weight to the word "and" in the "cruel and unusual punishments" clause and focusing on the equal protection purpose of this clause the Court has the opportunity to simplify a confused and unprincipled area of the law.

Posted by: Neil | Apr 12, 2006 10:24:53 AM

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