Death penalty: Cruel and unusual punishment?

A note today from the Legal Information Institute (LII) at Cornell University’s Law Library notes that a big death penalty case is set for argument on Monday, January 7.

The issue in Baze v. Rees is whether lethal injection is cruel and unusual punishment, and therefore prohibited under the 8th Amendment to the Constitution. Plaintiffs Thomas Baze and Thomas K. Bowling argue that there is an impermissible chance of pain from the execution process.

Two lower courts ruled against the plaintiffs. In a rather surprise move, the Supreme Court granted a writ of certiorari on September 25 to hear the case, which some interpret as the Court’s willingness to review the cruel and unusual argument in the light of a majority of the states now refusing to use the death penalty, while others think it means the more conservative Roberts Court is willing to quash death penalty appeals with a ruling that injection is not cruel and unusual.

This highlights the 8th Amendment. Discussion of this topic may help students cement their knowledge of the amendment and Bill of Rights. News on this case generally highlights court procedures, procedures, legal and constitutional principles that students in government classes need to understand.

News on the arguments in this case should go into teacher scrapbooks for later classroom exercises. Teachers may want to note that the decision will come down before the Court adjourns in June, but it may come down before the end of the school year. Teachers may want to have students review information about the case and make predictions, which predictions can be checked with the decision issues.

Below the fold I copy LII’s introduction to the case in their Oral Argument Previews, with the links to the full discussion, which you may use in your classes.

LII operates off of contributions. I usually give $10 or so when I think of it — these resources are provided free. You should be using at least $10 worth of stuff in your classrooms — look for the donation link, and feel free to use it in the support of excellent legal library materials provided free of cost to teachers and students.

Baze v. Rees (07-5439)

   Oral argument: January 7, 2008.

Ralph Baze and Thomas K. Bowling brought a civil suit against the State

of Kentucky in Franklin Circuit Court, claiming that the lethal

injection procedure that the state uses creates an unnecessary risk of

pain and suffering and is thus in violation of the Eighth Amendment.

After denying the state's motion to dismiss, the trial judge found that

the lethal injection procedure was not unconstitutional. The Supreme

Court of Kentucky affirmed, holding that the U.S. Supreme Court has

never required a completely painless execution. Baze and Bowling argue

that Kentucky's lethal injection procedure violates the Eighth

Amendment because it creates a "significant and unnecessary risk of

pain," in addition to citing poor administrative measures and untrained

personnel. Kentucky, however, argues that a method of execution only

amounts to "cruel and unusual punishment" if it creates a "substantial

risk" of unnecessary pain, and Kentucky's procedure does not meet that

threshold. By granting certiorari in this case, the Supreme Court has

seemingly imposed a "de facto moratorium" on lethal injections across

the country. While the outcome of this case is unlikely to outlaw the

death penalty on the whole, it may have a profound effect on the kinds

of procedures that will be used to carry out future executions.



7 Responses to Death penalty: Cruel and unusual punishment?

  1. roma himson says:

    the prick of a needle is not cruel i suffer it every time i visit a doctor


  2. roma himson says:

    what did this monster do to his victim or victims that was not cruel and unusual i think that they suffered more than a pinprick


  3. Pam says:

    At one point, electrocution was deemed not cruel.

    from today’s BoingBoing

    Edison electrocuted an elephant 105 years ago today
    Today’s the anniversary of Thomas Edison’s vicious electrocution of a live elephant in order to prove the dangers of Nikola Tesla’s alternating current and the safety of his competing direct current.

    direct link


  4. meson says:

    Of course it is painful. Anyone who ever beheaded a pig, will notice the pig shit itself. Isn’t that an expression of pain. But surely, if Mr guilottine is alive he will say that the pain sensor must go to the spine first. Since the head is already separated from the spine, surely no pain is felt. So, what difference does it make. For a dead person, does the pain it felt before death is of any relevant. It is matters of either dying or not that is important.

    The supreme court will never acknowledge its own dysfunctionality, the same a way a politician will not regard himself wrong. This is the reason why innocence are regarded as of no relevance, because it questions the functionality of the court. It is the general public who must reject death penalty, followed suit by politicians. That is why congress exist. To create laws and balance the power of the executive and court. The congress in turn is the voice of the people.


  5. Ed Darrell says:

    Check out the links to the analyses at the Legal Information Institute. The issue of innocence has not fared will in the Supreme Court; when Texas brought it up, the Court ruled innocence is not a good reason to allow a new trial, and therefore not a good reason to stop execution from the federal perspective. Innocence is not an issue in the case the Court hears next week.

    I know Mr. Guillotine defended his machine as painless, but I have never found anyone with any expertise who seriously argued beheading is painless. As a practical function, a head can go about 8 minutes without oxygen before starting to die. My guess is there’s a lot of pain at the neck, at a bare minimum. I find the guillotine rather barbaric, and I hope it is never used again.


  6. meson says:

    The question of death penalty is not of a question of cruelty. It is about taking someone’s lives at the risk of possible innocence. The incorruptible court of law and its system may lead to just decision but still concerns of error still exist which may lead to ones demise and in cases which ended in a death penalty, the decision are not revertible once executed.

    The argument against death penalty originates from the christian concerns regarding mercy, preciousness of life and judgement of others. Other religion (except budhism) are largely oblivious on this matter and regards justice as the more important aspect. For example, murder are punishable by death in Islamic law unless the victim family are willing to forgive him.

    Historically, death by the guilottine are considered as a just punishment (not cruel) during the French revolution by the fact that people die faster and efficiently and definitely without pain. Clearly, death by injection are also trying to pull the same set of arguments, but in these case, death by guilottine are definitely the less painless choice. If we accept lethal injection, on the same grounds we may also accept the guilottine as standard punishment.

    Any punishment, by philosophy are means of controlling the public security and should never be used for the public wanting of retribution. People are jailed to quarantine the damage they may do. If we are to allow any punishment to become an outlet of our retribution, we are indeed of little difference with our ancestors in the middle ages.

    More importantly, what difference does life imprisonment and death punishment makes in terms public security?? Is there any need for such harsh punishment??

    Well, actually yes. With death penalty, politicians can be sure that any threat against them can be eliminated for good. Examples of these threats are boundless as proven by history, especially as a means of setting an example to the public. The type of threats are various, listing a few are piracy, drug traficking and treason. The purpose of death penalty are mostly political in nature and hardly involve prevention. In fact, the death penalty are also oftenly abused especially for a political cause.

    Of the most recent are the execution of Saddam Hussein. There is little need to execute a death penalty on the guy other than retribution and public appeasement. In short, the death penalty is a very powerful tool for any government and the level of corruption in any country are mirrored by the amount crimes one can do that may carry the death sentences.


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