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January 31, 2022

"Life 'Or' Death"

The title of this post is the title of this new article authored by Marlee Russell now available on SSRN. Though focused on Mississippi law, the issue of "or" in state constitutions is one that arises in a number of other states. Here is this article's abstract:

This Article argues that the death penalty violates the Mississippi State Constitution because of the state’s prohibition of cruel “or” unusual punishments. By using the word “or” instead of “and,” Mississippi guarantees its citizens with a broader protection than the Eighth Amendment guarantees.  The different language should cause punishments, specifically the death penalty, to be evaluated under a separate standard for each prong of this protection.

Part I of this paper will argue that lethal injection is torture, explaining the methods, procedures, and associated risks during administration of the drugs.  Part II will show how lethal injection violates the Mississippi State Constitution due to the differences between conjunctive and disjunctive interpretations of the constitutional language.  Part III will prove that the remaining methods of execution in Mississippi violate the constitution because of their rare and unusual use in the state.  Part IV will suggest a new standard for evaluating if a punishment is cruel or unusual in Mississippi based on this language.

January 31, 2022 at 04:06 PM | Permalink


"Part I of this paper will argue that lethal injection is torture..."

Only when it became clear that SCOTUS was not going to ban capital punishment and that at least half the states would retain it, exactly this crowd insisted that lethal injection replace should the gas chamber and electrocution, because it was more humane.

Having largely won that battle, they now pull up the other sleeve and -- amazing! -- lethal injection is not more humane, it's torture!!

What actually got tortured is any standard of honesty that might have been left in abolitionism.

Posted by: Bill Otis | Jan 31, 2022 11:08:22 PM

Bill, Not to be a wet blanket, but this article is by a law student, meaning she was unlikely to be part of the crowd you are crowing about.

Posted by: John | Feb 1, 2022 2:08:03 PM

John --

Yup, being younger, she joined the crowd more recently. The personnel change, but the bait-and-switch message stays the same.

Posted by: Bill Otis | Feb 1, 2022 3:47:12 PM

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