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naraburns  nihil supernum  1yr ago (text post)   15643 thread views

Culture War Roundup for the week of December 19, 2022

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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.

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