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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?

In all cases where the combination of drugs is being argued, it's a purely bad faith argument from people that are against all executions. There is no combination of drugs that can be used which will satisfy people who are against the death penalty, because they're against the death penalty. The only reason to argue about the drugs is to create an additional legal obstacle, tie executions up in courts longer, and cost the state more money. Any strategy for addressing these arguments has to start with the knowledge that the opponents doesn't actually care whether the drugs used are particularly cruel and unusual.

I believe you are overlooking the category of bad-faith arguments which don't care about all executions--just their own. Defense lawyers are obligated to try any and every strategy, and cruel/unusual defenses are still considered. This probably has something to do with decades of highly visible failures across methods.

Perhaps more importantly, it doesn't really matter whether those opponents actually care, only what the judge and jury think. Pointing to Canada's program won't convince death row inmates to lie down and take it, but it may satisfy the letter of the law.

Good point regarding defense lawyers.

Regarding the convincing of judges, I simply don't believe that they're actually making a good faith consideration of the merits either. Some judges are in favor of the death penalty, some are against, and they will rule accordingly to the extent that they can get away with it. There is still value in making convincing argument to the extent that it permits a judge to go in the direction they'd prefer, but I would be absolutely shocked to find that death penalties are administered or not based on judges that genuinely don't know which way they'd like to rule prior to hearing the facts. Of course, this isn't just a death penalty thing - listening to just about any of the Supreme Court hearings leaves me rolling my eyes at the justices plainly looking for excuses to side with their preferred side.

Regarding the convincing of judges, I simply don't believe that they're actually making a good faith consideration of the merits either.

Judge Posner Richard, known for his work on economic theory of law, admitted as much:

I simply pay very little attention to legal rules, statutes, constitutional provisions [...] The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute? [...] See if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. [...] When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” NYT

and cost the state more money

And then going on to argue that since enacting a death penalty is so expensive, it should be abolished; purely as a cost saving measure, of course.

This is a popular anti-nuclear argument as well.

Step 1) Pass punitive regulation that makes nuclear impossibly expensive

Step 2) Argue that nuclear should be shut down because it's too expensive

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