27th January 2021
Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.
In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?
The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides:
‘nor cruel and unusual punishments inflicted.’
So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.
Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.
But here another part of the constitution is engaged.
The fifth amendment provides, among other things:
‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.
This means that the constitution envisages that a person can be deprived of their life by process of law.
And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.
Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.
So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).
In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.
This argument has three bases.
First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.
And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.
They would still be alive today.
Second, federal executions are not usual
Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.
Click and have a look at this table.
Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.
But at a federal level executions were not, between 1966 and 2020, usual.
And by definition, what is not usual is unusual.
Third, these final six executions were (especially) cruel.
The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.
This deliberate putting to death of a human being had to be done within days, if it was to be done at all.
The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.
Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.
And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.
Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.
The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).
(The latest significant case in this grisly caselaw is here.)
What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.
A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.
And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.
On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.
There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.
None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.
Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.
The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.
This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.
And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.
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