The Corner

New Subject: Pain & the Eighth Amendment

This is interesting.  The Supreme Court may be on the verge of holding capital punishment by lethal injection unconstitutional, effectively sounding the death knell for the death penalty. 

The justices have agreed to consider whether the procedure violates the Eighth Amendment’s proscription against cruel and inhuman punishments.  That would seem logically impossible.  As I mentioned here, the Constitution refers to the death penalty several times (including three times in the Fifth Amendment alone).  As there was no lethal injection in the late 18th Century, and given that the methods commonly used back then (and after) were less humane than lethal injection, it would be strange to learn that the Eighth Amendment forbade punishments involving pain-levels attendant to lethal injection. 

But hey, what’s logic got to do with it?  We’re evolving, the Constitution is alive, and — to cut to the chase — there may very well be five votes on the Supreme Court for the proposition.  The justices, in fact, have stayed two other executions pending their resolution of the case (Baze v. Rees), and governors throughout the country are halting executions until the issue is settled.  It seems like a stroke of genius on the part of the anti-capital-punishment movement:  Don’t challenge the death penalty in principle; just argue that the most humane method is too cruel, and thereby lay the foundation for ruling all methods too cruel.

Not to go back to the whole Terri Schiavo debate, but I wonder what the consequences of this focus on pain may be.  What about euthanasia and the fetal pain attendant to abortions?  The Eighth Amendment, of course, generally applies only to punishments that flow from criminal proceedings.  But recall the controversy over the McCain Amendment.  Our treaty obligation to avoid “cruel, inhuman and degrading treatment” was limited by the Senate to the treatment already prohibited by the Fifth, Eighth and Fourteenth Amendments.  Thus, many of us argued, cruel, inhuman and degrading prohibitions did not apply to wartime detainees since they are not serving criminal sentences or otherwise involved in criminal proceedings.  The other side decried this as a preposterous, legalistic distinction — the obligation to avoid cruelty, they insisted, was a moral one; it was about the kind of people we are; it had to apply in all contexts.



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