stone cold posted:

.....did I stutter, or did you just repeat what I said?

but also you're the moron because you asserted that the eighth amendment was never used to overturn capital punishment so lol at you, moron

quote:

In a 5–4 decision, the Supreme Court struck down the impositions of the death penalty in each of the consolidated cases as unconstitutional in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The Supreme Court has never ruled the death penalty to be per se unconstitutional. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result.

wateroverfire posted:

https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States


Hmm.

edit:

I guess to be clear... the death penalty is being applied consistent with the 8th ammendment. Therefore, what the gently caress is your point in bringing up the 8th ammendment?

stone cold posted:

Thanks for the Wikipedia link my dog, now do yourself a favor and look up Furman v. Georgia, which I've brought up three times now.

What's it like being totally intellectually incurious?

wateroverfire posted:

I've looked up Furman v. George but again, what is your point other than being outraged and tedious?

hakimashou posted:

I think most people believe that a justice system should have some mix of both utilitarian and moral considerations, even if they can't describe exactly what a perfect mix would be. I know I do.

stone cold posted:

Oh gee I dunno maybe because it was a SCOTUS case that deemed the death penalty unconstitutional on both eighth and fourteenth amendment grounds.

Patrick Spens posted:

No it didn't. The court found that the current practice of the death penalty violated the 8th because it was too arbitrary. Which is why, when Georgia and several other states came up with policies for the death penalty that didn't violate the 8th, SCOTUS approved them 4 years later.

quote:

MR. JUSTICE DOUGLAS, concurring.

In these three cases the death penalty was imposed, one of them for murder, and two for rape. In each, the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury. In each of the three cases, the trial was to a jury. They are here on petitions for certiorari which we granted limited to the question whether the imposition and execution of the death penalty constitute "cruel and unusual punishment" within the meaning of the Eighth Amendment as applied to the States by the Fourteenth. I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments.

quote:

MR. JUSTICE BRENNAN, concurring.

The question presented in these cases is whether death is today a punishment for crime that is "cruel and unusual" and consequently, by virtue of the Eighth and Fourteenth Amendments, beyond the power of the State to inflict....
There are, then, four principles by which we may determine whether a particular punishment is "cruel and unusual." The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not, by its severity, be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited. Yet "[i]t is unlikely that any State at this moment in history," Robinson v. California, 370 U.S. at 370 U. S. 666, would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment. Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle....

The question, then, is whether the deliberate infliction of death is today consistent with the command of the Clause that the State may not inflict punishments that do not comport with human dignity. I will analyze the punishment of death in terms of the principles set out above and the cumulative test to which they lead: it is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a "cruel and unusual" punishment. Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly, the common view is that death is the ultimate sanction. This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, see infra at 408 U. S. 296-298, nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view...

When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction.

Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes. However the rate of infliction is characterized -- as "freakishly" or "spectacularly" rare, or simply as rare -- it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be?

When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: death is inflicted, they say, only in "extreme" cases.

quote:

MR. JUSTICE STEWART, concurring.

The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 347 (Brandeis, J., concurring).

The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendment's guarantee against the infliction of cruel and unusual punishments, [Footnote 3/1] and the origin and judicial history of capital punishment...

Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. Robinson v. California, 370 U. S. 660. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States, 217 U. S. 349. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. [Footnote 3/10] But I do not rest my conclusion upon these two propositions alone.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, [Footnote 3/11] many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. [Footnote 3/12] My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. [Footnote 3/13] See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved, [Footnote 3/14] and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

For these reasons I concur in the judgments of the Court.

quote:

MR. JUSTICE WHITE, concurring.

The facial constitutionality of statutes requiring the imposition of the death penalty for first-degree murder, for more narrowly defined categories of murder, or for rape would present quite different issues under the Eighth Amendment than are posed by the cases before us. In joining the Court's judgments, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided.

The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment...

The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment...

In this respect, I add only that past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime. Legislative "policy" is thus necessarily defined not by what is legislatively authorized, but by what juries and judges do in exercising the discretion so regularly conferred upon them. In my judgment, what was done in these cases violated the Eighth Amendment.

quote:

MR. JUSTICE MARSHALL, concurring.

These three cases present the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. [Footnote 4/1]...

The criminal acts with which we are confronted are ugly, vicious, reprehensible acts. Their sheer brutality cannot and should not be minimized. But we are not called upon to condone the penalized conduct; we are asked only to examine the penalty imposed on each of the petitioners and to determine whether or not it violates the Eighth Amendment. The question then is not whether we condone rape or murder, for surely we do not; it is whether capital punishment is "a punishment no longer consistent with our own self-respect" [Footnote 4/2] and, therefore, violative of the Eighth Amendment.

The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. [Footnote 4/3] Hence, we must proceed with caution to answer the question presented. [Footnote 4/4] By first examining the historical derivation of the Eighth Amendment and
the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint...

D. The three final purposes which may underlie utilization of a capital sanction -- encouraging guilty pleas and confessions, eugenics, and reducing state expenditures -- may be dealt with quickly. If the death penalty is used to encourage guilty pleas, and thus to deter suspects from exercising their rights under the Sixth Amendment to jury trials, it is unconstitutional. United States v. Jackson, 390 U. S. 570 (1968). [Footnote 4/128] Its elimination would do little to impair the State's bargaining position in criminal cases, since life imprisonment remains a severe sanction which can be used as leverage for bargaining for pleas or confessions in exchange either for charges of lesser offenses or recommendations of leniency.

Moreover, to the extent that capital punishment is used to encourage confessions and guilty pleas, it is not being used for punishment purposes. A State that justifies capital punishment on its utility as part of the conviction process could not profess to rely on capital punishment as a deterrent. Such a State's system would be structured with twin goals only: obtaining guilty pleas and confessions and imposing imprisonment as the maximum sanction. Since life imprisonment is sufficient for bargaining purposes, the death penalty is excessive if used for the same purposes....

E. There is but one conclusion that can be drawn from all of this -- i.e., the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take judicial notice of the fact that, for more than 200 years, men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally well. And they have done so with great success. Little, if any, evidence has been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the Constitution. We know that, at some point, the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that judges can determine not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment. [Footnote 4/141]

VI

In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.

In judging whether or not a given penalty is morally acceptable, most courts have said that the punishment is valid unless "it shocks the conscience and sense of justice of the people." [Footnote 4/142]...

VII

To arrive at the conclusion that the death penalty violates the Eighth Amendment, we have had to engage in a long and tedious journey. The amount of information that we have assembled and sorted is enormous. Yet I firmly believe that we have not deviated in the slightest from the principles with which we began.

At a time in our history when the streets of the Nation's cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But the measure of a country's greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve "a major milestone in the long road up from barbarism" [Footnote 4/164] and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment. [Footnote 4/165]

I concur in the judgments of the Court.

stone cold posted:

so again, nuance

Stone cold posted:

Oh gee I dunno maybe because it was a SCOTUS case that deemed the death penalty unconstitutional on both eighth and fourteenth amendment grounds.

Patrick Spens posted:

Well now that we are paying attention to nuance, can we agree that this:


Isn't correct, and there is a difference between SCOTUS declaring the death penalty unconstitutional, and declaring how the death penalty is currently imposed unconstitutional?

Patrick Spens posted:

No it didn't. The court found that the current practice of the death penalty violated the 8th because it was too arbitrary. Which is why, when Georgia and several other states came up with policies for the death penalty that didn't violate the 8th, SCOTUS approved them 4 years later.

quote:

I begin with the second of the Court’s two holdings: that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside sub­ stantial evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding, the Court disregards an objectively intolerable risk of severe pain.
A
Like the Court, I would review for clear error the Dis­ trict Court’s finding that 500 milligrams of midazolam will render someone sufficiently unconscious “‘to resist the noxious stimuli which could occur from the application of the second and third drugs.’ ” Ante, at 18–19 (quoting App. 77). Unlike the Court, however, I would do so without abdicating our duty to examine critically the factual predi­ cates for the District Court’s finding—namely, Dr. Evans’ testimony that midazolam has a “ceiling effect” only “at the spinal cord level,” and that a “500 milligram dose of midazolam” can therefore “effectively paralyze the brain.” Id., at 78. To be sure, as the Court observes, such scien­ tific testimony may at times lie at the boundaries of fed­ eral courts’ expertise. See ante, at 17–18. But just because a purported expert says something does not make it so. Especially when important constitutional rights are at stake, federal district courts must carefully evaluate the premises and evidence on which scientific conclusions are based, and appellate courts must ensure that the courts below have in fact carefully considered all the evidence presented. Clear error exists “when although there is evidence to support” a finding, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). Here, given the numerous flaws in Dr. Evans’ testimony, there can be little doubt that the District Court clearly erred in relying on it...

Setting aside the District Court’s erroneous factual finding that 500 milligrams of midazolam will necessarily “paralyze the brain,” the question is whether the Court is nevertheless correct to hold that petitioners failed to demonstrate that the use of midazolam poses an “objec­ tively intolerable risk” of severe pain. See Baze, 553 U. S., at 50 (plurality opinion) (internal quotation marks omit­ ted). I would hold that they made this showing. That is because, in stark contrast to Dr. Evans, petitioners’ ex­ perts were able to point to objective evidence indicating that midazolam cannot serve as an effective anesthetic that “render[s] a person insensate to pain caused by the second and third [lethal injection] drugs.” Ante, at 23...

In reengineering Baze to support its newfound rule, the Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some avail­ able method of execution must be constitutional. See ante, at 4, 15–16. But even accepting that the death penalty is, in the abstract, consistent with evolving standards of decency, but see ante, p. ___ (BREYER, J., dissenting), the Court’s conclusion does not follow. The constitutionality of the death penalty may inform our conception of the degree of pain that would render a particular method of imposing it unconstitutional. See Baze, 553 U. S., at 47 (plurality opinion) (because “[s]ome risk of pain is inherent in any method of execution,” “[i]t is clear . . . the Constitution does not demand the avoidance of all risk of pain”). But a method of execution that is “barbarous,” Rhodes, 452 U. S., at 345, or “involve[s] torture or a lingering death,” Kemmler, 136 U. S., at 447, does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitu­ tion imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.
For these reasons, the Court’s available-alternative requirement leads to patently absurd consequences. Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equiva­ lent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availabil­ ity of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated. But see Baze, 553 U. S., at 101–102 (THOMAS, J., concurring in judgment) (“It strains credulity to suggest that the defin­ ing characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like was that they involved risks of pain that could be eliminated by using alternative methods of execution”).8 The Eighth Amendment cannot possibly countenance such a result....

“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the govern­ ment to respect the dignity of all persons.” Roper v. Sim- mons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the con­ demned inmate to identify an available means for his or her own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price. I dissent.

quote:

In 1976, the Court thought that the constitutional in­ firmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those con­ stitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
I shall describe each of these considerations, emphasiz­ ing changes that have occurred during the past four dec­ ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­ lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual pun­ ishmen[t].” U. S. Const., Amdt. 8....

Nearly half of the 3,000 inmates now on death row have been there for more than 15 years. And, at present execution rates, it would take more than 75 years to carry out those 3,000 death sentences; thus, the average person on death row would spend an additional 37.5 years there before being executed. BJS 2013 Stats, at 14, 18 (Tables 11 and 15).
I cannot find any reasons to believe the trend will soon be reversed.
B
These lengthy delays create two special constitutional difficulties. See Johnson v. Bredesen, 558 U. S. 1067, 1069 (2009) (Stevens, J., statement respecting denial of certio­ rari). First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confine­ ment.” Ibid.; Gomez v. Fierro, 519 U. S. 918 (1996) (Ste­ vens, J., dissenting) (excessive delays from sentencing to execution can themselves “constitute cruel and unusual punishment prohibited by the Eighth Amendment”); see also Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). Second, lengthy delay under­ mines the death penalty’s penological rationale. Johnson, supra, at 1069; Thompson v. McNeil, 556 U. S. 1114, 1115 (2009) (statement of Stevens, J., respecting denial of certiorari).
1
Turning to the first constitutional difficulty, nearly all death penalty states keep death row inmates in isolation for 22 or more hours per day. American Civil Liberties Union (ACLU), A Death Before Dying: Solitary Confine­ ment on Death Row 5 (July 2013) (ACLU Report). This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days. See id., at 2, 4; ABA Standards for Criminal Justice: Treatment of Prisoners 6 (3d ed. 2011). And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloguing studies finding that solitary confinement can cause prisoners to experience “anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations,” among many other symptoms); Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash U. J. L. & Policy 325, 331 (2006) (“[E]ven a few days of solitary confinement will predictably shift the [brain’s] electroencephalogram (EEG) pattern toward an abnormal pattern characteristic of stupor and delirium”); accord, In re Medley, 134 U. S. 160, 167–168 (1890); see also Davis v. Ayala, ante, at 1–4 (KENNEDY, J., concurring).
The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.” Medley, supra, at 172. The Court was there describing a delay of a mere four weeks. In the past century and a quarter, little has changed in this respect— except for duration. Today we must describe delays meas­ ured, not in weeks, but in decades...

The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punish­ ment, classically rests upon society’s need to secure deter­ rence, incapacitation, retribution, or rehabilitation. Capi­tal punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates. See Ring v. Arizona, 536 U. S. 584, 615 (2002) (BREYER, J., concur­ ring in judgment)...

But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a com­ munity that favors the death penalty has an understand- able interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his deci­ sion to commute all death sentences on the ground that it was “cruel and unusual” for “family members to go through this . . . legal limbo for [20] years”).
The relevant question here, however, is whether a “community’s sense of retribution” can often find vindica­ tion in “a death that comes,” if at all, “only several decades after the crime was committed.” Valle v. Florida, 564 U. S. ___, ___ (2011) (BREYER, J., dissenting from denial of stay) (slip op., at 3). By then the community is a different group of people. The offenders and the victims’ families have grown far older. Feelings of outrage may have sub­ sided. The offender may have found himself a changed human being. And sometimes repentance and even for­ giveness can restore meaning to lives once ruined. At the same time, the community and victims’ families will know that, even without a further death, the offender will serve decades in prison under a sentence of life without parole.
I recognize, of course, that this may not always be the case, and that sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community’s interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty. Id., at ___ (slip op., at 3). In any event, I believe that whatever interest in retri­ bution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits, see ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013)).
Finally, the fact of lengthy delays undermines any effort to justify the death penalty in terms of its prevalence when the Founders wrote the Eighth Amendment. When the Founders wrote the Constitution, there were no 20- or 30-year delays. Execution took place soon after sentenc­ing...

A death penalty sys­ tem that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capi­ tal punishment and significantly undermine the rationale for imposing a sentence of death in the first place. See Knight, 528 U. S., at 998 (BREYER, J., dissenting from denial of certiorari) (one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentenc­ ing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure relia­ bility and procedural fairness.
In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death pen­ alty violates the Eighth Amendment. A death penalty system that is unreliable or procedurally unfair would violate the Eighth Amendment. Woodson, 428 U. S., at 305 (plurality opinion); Hall, 572 U. S., at ___ (slip op., at 22); Roper, 543 U. S., at 568. And so would a system that, if reliable and fair in its application of the death penalty, would serve no legitimate penological purpose. Furman, 408 U. S., at 312 (White, J., concurring); Gregg, supra, at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.); Atkins, supra, at 319....

In sum, if we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., three States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. And if we look to counties, in 86% there is effectively no death pen- alty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole. See Furman, 408 U. S., at 311 (1972) (White, J., concurring) (executions could be so infrequently carried out that they “would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system . . . when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any exist- ing general need for retribution would be measurably satisfied”)....

...the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­tessentially judicial matters. They concern the infliction— indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.
Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law.

For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.

bitterandtwisted posted:

stone cold posted:

I notice you have no data on the other one hundred plus countries for public opinion on the death penalty,

rudatron posted:

I'm not your errand boy, find it yourself if you're so inclined.

rudatron posted:

No, but not every country that has abolished it actually has the majority of the population favoring that abolition.

Ytlaya posted:

Actually, the only problem I see with your proposed fake-torture island is the fact that information about it being fake would inevitably be leaked somehow. If there were some way to 100% avoid the information being leaked, I don't really care how good the quality of life for such criminals is, as long as they're kept separate from the rest of the population so they can't re-offend.

stone cold posted:

If you're gonna make a claim like:


You should be able to back it up with evidentiary support, beyond citation of one UK opinion poll. Gimme the data, that's all.

hakimashou posted:

It's bad to have a society that punishes innocent people in any way for the crimes of others.

I think we might be better off abolishing the death penalty in the US because I'm not convinced it is fairly and humanely applied.

However, I don't believe it is morally wrong to execute people who are guilty of murder.

hakimashou posted:

There's one line of thought that says life imprisonment is disproportionately cruel for murder. The murderer didnt imprison the victim for decades, he just killed him, so it would be unjust to imprison him for such a long period instead of imposing the death penalty.

N. Senada posted:

It's cruel if the jail is some hellish cesspit.

But if we were able to reform our prisons into detention facilities filled with opportunities to educate yourself, contribute to society, etc. it actually wouldn't be all bad!

I understand that this is unlikely.

hakimashou posted:

It's still basically slavery, particularly if it is for life.

Kant thought that if there were two condemned men and one accepted his death while the other plead for life imprisonment, the former was an honorable man and the latter wretched, since he was willing to accept a life of enslavement.

wateroverfire posted:

Kant was probably never faced with the choice between life in prison and execution, though.

Pure reason can lead you to some strange destinations.

N. Senada posted:

It's cruel if the jail is some hellish cesspit.

But if we were able to reform our prisons into detention facilities filled with opportunities to educate yourself, contribute to society, etc. it actually wouldn't be all bad!

I understand that this is unlikely.

hakimashou posted:

It seems difficult to me to get from "people deserve to be punished or rewarded based on whether what they do is right or wrong" to "no one deserves to die".

Ytlaya posted:

Nah, the logic is pretty straight-forward. Would you agree that no one deserves to be repeatedly raped and tortured for 20 years straight (or insert whatever disgusting inhumane thing you can think of)?

Basically the logic is that there exists a limit that punishments shouldn't cross, and that the death penalty is beyond that limit. You can disagree about where the limit should be, but most people would agree that limit exists so the logic itself is fine.

DoggPickle posted:

It is unlikely. I am a girl and WHITE, and went to jail in an affluent county for only 5 days, and the slave mentality that you are required to adopt within the first few hours is palpable and mentally damaging. I had a female guard tell me within the first day when I had to change jail clothes for some reason, that I should throw my first prison-wear into the "bin", and there were two bins next to each other, too high for me to see in, and one was round and looked recycley and one was rectangular and looked more like a trash area, but I didn't want to make the crazy lady angry by doing it wrong, and I said "which bin?" and she started screaming at me and degrading me that I was stupid and I didn't know what a "bin" was. She stomped over and grabbed my clothes and threw them in like I was a nitwit. It's obviously the round one. Like leave your dignity at the door! Let the dumbest people that couldn't get a real job take out their anger on you with no repercussions and just hang your head in shame and TAKE IT DAMMIT.

That is the kind of poo poo they do to you immediately so that you know your place as idiot cattle that can't do anything correctly.

On the second day, I was very close to getting beat up because I was on the "white" side of the Oz-looking area, and there were two TV's and I was sitting there reading a book, keeping my head down, and this chick asked if I CARED if she changed the channel. I barely looked up and said that I was reading and I didn't care (It was like soap operas or something). So she changed the channel and a bunch of other people got mad at me like I had given her permission. Some skanky meth bitches got up in my face until I talked them down in a fit of emergency charmingness.

On the third day, the drug addict in the cell next to me was taken out during the night because she had a severe nose bleed and HOLY poo poo there was so much blood. And then they made me clean it up with a mop. No gloves. I did a pretty lovely job, but I had the out of only being there for a few days so I could afford to irritate the guards a little bit. They also took everyone's' blood to check for some disease that prisoners always get and I told them that I have weird low blood pressure and I tend to pass out when I get stuck with needles, and they still made me do it standing up and I got light-headed and semi-collapsed.

If prisons dumped all the non-violent offenders and actually made them places to educate yourself and still treated people with human dignity, they would serve a purpose, but locking people up for insanely long sentences, like 5 years for a drug crime or 10 years for an accidental (but maybe with some fault) vehicular manslaughter is not going to make them better people or teach them a lesson. It just makes them horrible people who have to adopt this slave-mentality in order to live, and make friends with worse criminals and would do absolutely anything not to be berated or beat up or treated like poo poo.

There is literally no point to it, other than keeping severely violent and messed-up people from hurting anyone else. I for one would ABSOLUTELY rather be dead than do that again, and I think you're overestimating people's will to live, If LIFE is a constant torment, or endless slavery. You don't need the humiliation and degradation to get a result. Just plain not being able to do things that you want, see your family or snuggle your pets, or to escape to another place and lay in the grass or see the sun, dumb stuff like that is really HARD. You don't have to add the cruelty and pissing and showering in front of others to make it worse.

It really is kill-or-be-killed in there, and I only saw the softest POSSIBLE side. American prisons are cesspools of desperation and hate and racism and absolutely terrible day-to-day life. It's not just in the movies, folks. You're forced to adopt this alternate persona of forced strength with the other inmates and yet abject obedience to the masters. It's loving WEIRD and barbaric.

We as a people need to decide what going to jail should actually mean. If you want to throw people in literal dungeons, to sit in their own filth and fight off the rats, but you did it for a WAY shorter time, I would actually be down for that. But this crazy, unending servitude torture is just useless bullshit that costs tons of money and makes real thieves out of people that stole ONE THING and got caught, makes wife beaters out of guys that got into a bar-fight, makes killers out of angry drunks, makes rapists out of confused anti-social dudes, and makes people unable to get a job for the rest of their lives with Felon on their record.

That was quite a long rant, and I'm sorry, and it would be better served in a general "U.S. prison is stupid" thread, but I feel like it does apply when you're talking about the death penalty, because I think a lot more people would choose death if we could manage to do it properly..i.e. go to sleep and never wake up. What is WITH the over-complicated, idiotic drug cocktail anyways? Is it pharmaceutical influence? WTF is wrong with an overdose of opiates? It makes me cringe every time I see what they actually use.

Peachfart posted:

The fact that your life is privileged enough that 5 days in minimum security scarred you doesn't mean that the death penalty is good.

hakimashou posted:

I'm not sure she said it was "good," just better than permanent dehumanizing slavery in prison.

DoggPickle posted:

3. Murder.. Well, screw this dude. If there is convincing, indisputable non-racist evidence, AND a confession, just kill them immediately.

wateroverfire posted:

Lots of things can happen during a life sentence.

Your sentence could be commuted.

You could get pardoned.

The law could change.

You could find meaning participating in the prison community and come to value your time whether you're released or not.

You could find the love of your prison life.

Prison conditions could improve.

If you're dead, though, that's it.

Orange Devil posted:

What I'm saying is anyone who has ever served on a US jury and known even the slightest bit about what US prison is actually like but returned a guilty verdict anyway is immoral. I don't care what the crime was or how guilty the defendant was.

hakimashou posted:

I'm not sure she said it was "good," just better than permanent dehumanizing slavery in prison.

Submarine Sandpaper posted:

You were in jail, not prison. hth.

hakimashou posted:

It might be possible for someone to do something so wrong that it is justifiable, I don't know.

Anyway, compared to that, the death penalty would be a mercy.

Why does no one deserve to die?

BRJohnson posted:

What could possibly be the gain of ending a life*, when put beside preserving it? Cold reason and economics cannot even take us to that conclusion.

quote:

the decision of who 'deserves' what is completely subjective

BRJohnson posted:

I hope that you create a philosophy thread so that I can read and learn from it, as I have much to learn. Yet I still think your use of the word 'deserve' is ridiculous, as the decision of who 'deserves' what is completely subjective. The moral and ethical arguments of philosophers can stimulate our thought, yes, but the world is what we make it; if we can see that we have no human institution that can accurately dispense 'justice', than the sentence of death is too high to ever be allowed. What could possibly be the gain of ending a life*, when put beside preserving it? Cold reason and economics cannot even take us to that conclusion.

*except in the case of preserving another life