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naraburns  nihil supernum  3yr ago (text post)   17406 thread views

Culture War Roundup for the week of December 19, 2022

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In any of those cases, was a US state able to successfully point to Canada's program in order to argue that the risk was low and that it should not constitute cruel/unusual punishment?

I can't speak to your other questions but I would be fairly surprised if this argument were persuasive in a US court. Primarily because it's not clear what relationship Canadian legislative decisions have to American constitutional interpretation. Is the argument supposed to be that any method of execution Canada legalizes for voluntary euthanasia cannot be "cruel and unusual" within the meaning of the 8th amendment? What if Canada specifically legalizes a method because of its cruel-and-unusual-ness? Perhaps as a deterrent to people seeking it.

More generally I think the conclusion of your argument (death penalty is not cruel and unusual punishment within the meaning of the 8th amendment) and the method of argumentation (based on a contemporary understanding of the term "cruel and unusual") are misaligned with the way these two features often are in American jurisprudence today.

My impression is that judges who would agree with your conclusion tend to be constitutional originalists. They are committed to the proposition that the term "cruel and unusual" in the constitution means the same thing now that it did when the constitution was adopted. Since punishments like hanging or firing squad were permissible then, it's hard to see how "drug cocktail that puts you to sleep then stops your heart" is "cruel and unusual" by comparison. This group perhaps likes your conclusion but is opposed to your method of analysis. Since the words "cruel and unusual" in the constitution have meant the same thing since the founding subsequent developments of Canadian law are of no relevance.

By contrast I think those more amenable to your methods (the use of contemporary understandings of constitutional terms) tend to be opposed to the death penalty in toto. For them it's not a question of what method is used for execution, the whole enterprise of putting people to death as punishment for a crime is unconstitutionally "cruel and unusual". If their arguments are method-agnostic then trying to argue that a particular method is not cruel and unusual is going to be fruitless.

My impression is that judges who would agree with your conclusion tend to be constitutional originalists. They are committed to the proposition that the term "cruel and unusual" in the constitution means the same thing now that it did when the constitution was adopted. Since punishments like hanging or firing squad were permissible then, it's hard to see how "drug cocktail that puts you to sleep then stops your heart" is "cruel and unusual" by comparison.

This seems like it's pairing originalism with a decidedly modern manner of comparison. It seems quite plausible to me that someone from 200 or 300 years ago could find firing squads, hangings and even beheadings normal but at the same time find the way in which the administration of a lethal injection (performed, from what I have seen, by medical professionals who engage in all the ceremonium that is usually part of their job, carefully sterilising needles and all) perverts the life-giving medical process to kill rather than cure (in an apparently non-violent and thereby all the more insidious way) to be unusual and revulsive and therefore cruel by virtue of the shame being killed in such a fashion ought to bring upon everyone involved.

My understanding is that arguments along the lines you describe in your comment have been advanced (unsuccessfully) before the Supreme Court before. Some states have passed laws reintroducing execution by firing squad due to issues with accessing lethal injection drugs and out of a more general concern about the unavailability of lethal injection as a method of execution.

While the hypothetical has much potential for dark humour, Canada's MAiD program does not seem to have had much interest in deterring people rather than expanding its usage. Indeed, the entire concept is to reduce (specific forms of) suffering; legalizing a method specifically for its cruelty is the polar opposite of the motivating philosophy.

Currently this may be the case, but things can change in the future. My impression is US courts are often concerned not just with the present facts but with the principles they are being asked to endorse. By way to describing this distinction I think most US courts would agree "the methods Canada currently employs for voluntary euthanasia are not 'cruel and unusual' punishment within the meaning of the 8th amendment." Certainly that has been the conclusion of our own Supreme Court. I also think most US courts would decline to endorse the principle OP appears to be pointing at, specifically "Canada having legalized a particular method of killing people for voluntary euthanasia implies that method of killing people is not 'cruel and unusual' punishment within the meaning of the 8th amendment." In the style of the Euthyphro dilemma it may be that Canada's methods of voluntary euthanasia are not cruel and unusual, but whatever makes them not-cruel-and-unusual is not the fact that they are Canada's methods of voluntary euthanasia.

By way to describing this distinction I think most US courts would agree "the methods Canada currently employs for voluntary euthanasia are not 'cruel and unusual' punishment within the meaning of the 8th amendment."

My recollection of current jurisprudence is that the left-leaning justices are more inclined to cite international practice, while the right tends to lean on Originalism (Constitutional literalism, frequently) and occasionally English Common Law circa 1776. I don't think your idea is wrong, but I don't see the conservative justices being willing to cite international precedent or the liberals arguing for any application of the death penalty.

Honestly, IMO the death penalty isn't worth the (legal, mostly) hassle in most cases. But if it were, inert gas asphyxiation seems like it would be ideal but for the huge legal fight over approving a new method.

But if it were, inert gas asphyxiation seems like it would be ideal but for the huge legal fight over approving a new method.

Why not just use existing inhalational anaesthetic agents? Just don't add oxygen to the mixture and let hypoxia kill the condemned. You could even use stuff like halothane, since its side effects are irrelevant. Although I guess it would be equivalent to the one-drug lethal injection method, where they OD the condemned on pentobarbital.

Isn’t Oklahoma working slowly towards the use of inert gas asphyxiation?

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