Off With Their Heads!
Why do people who want the death penalty to be judicially abolished under the Eighth Amendment (prohibiting "cruel and unusual" punishment) always seem to focus on the "cruel" element? It would seem like it would be a lot easier to argue that something was once usual and is now unusual, than to argue that it is now cruel when it wasn't then.
posted by fleurdelis28 | 1:42 PM
6 Comments:
Because it is bloody common to execute people in the States?
That depends very much on the state. (This is actually a problem for the federal judicial system, because it's supposed to be one system applied equally across the states, but juries in some parts of the country are much less willing to impose the death penalty than in others.)
I've also heard arguments that it was fading out generally until the U.S. Supreme Court ruled it unconstitutional, at which point states got way more into it just to show that they could. In Massachusetts, at least, I know that the highest court once found that the death penalty had not been in violation of similar provisions of the state constitution when the constitution had been written, but had since become unconstitutional. The people of Massachusetts went out and amended the constitution so that it couldn't be interpreted to prohibit the death penalty, but the death penalty has yet to be actually reinstituted in Massachusetts. Some states obviously are more into actually executing people, but I think in much of the U.S. it's more a matter of orneryness or of philosophy, rather than of practice.
So basically, you couldn't necessarily argue that it's unusual in the U.S. as a whole, but you could probably argue it on the state level (depending on the state).
http://www.ojp.usdoj.gov/bjs/cp.htm
(especially table of death penalty statistics across time)
Is "unusual" necessarily equivalent to "uncommon?" Could it be interpreted as "excessive under the circumstances," such as a death penalty for stealing a loaf of bread?
Probably. I don't know, though, that anyplace in the United States prescribes the death penalty for anything other than the sort of crimes that everyone agrees would deserve it if anything did. (Leaving aside the apparent eighteenth-century tendency -- at least in England -- to consider the death penalty an appropriate and proportionate response to just about anything. They seem to have used it more for dramatic purposes than anything else, with lots of last-minute pardons and freely available loopholes, but it certainly wasn't viewed as philosophically problematic.)
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