The New Republic, April 28. 2008
The Supreme Court recently gave the country an object lesson in the absurdity of the Eighth Amendment – at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states put condemned prisoners to death, and it then went on to hear oral arguments over the question of whether states may constitutionally execute child rapists. That may not sound absurd, and it wouldn’t be if the court had any kind of coherent approach to cases alleging “cruel and unusual punishment.” But it doesn’t. So the one-two punch, like so most of the court’s recent hand-wringing over the amendment, operated more as a kind of philosophical and – let’s face it – political Rorschach test for the justices than anything else.
And in these cases, the test revealed a serious case of multiple personality disorder.
There are no principles here, none that anyone can agree on, anyway. So while seven justices seemed to think that the drug cocktail was okay, no more than three could sign any one opinion holding as much. This plurality regarded the drug combination as adequate, since those challenging it had not proven a substantial chance of it causing great pain. Justice Stephen Breyer wrote separately to say that he regarded the current drugs as okay too, though based on a different standard. So did Justice John Paul Stevens, who nonetheless took the opportunity to announce that he now regarded the death penalty itself as “cruel and unusual.” Justices Antonin Scalia and Clarence Thomas, meanwhile, argued that to violate the amendment, an execution method has to be intentionally painful, like the torturous deaths inflicted under the Stuarts in England. Meanwhile, Justices Ruth Bader Ginsburg and David Souter dissented, wanting to send the case back for more fact-finding on the question of whether the execution procedures could be easily improved to lessen the chance of severe pain. Having given the country these pearls of guidance, the justices then turned to executing child rapists.
The simple fact is that more than two centuries after the Eighth Amendment’s adoption into the Constitution, the justices still can’t agree about the most basic aspects of its meaning: Does it prohibit a static list of brutalities feared by the Founders or is it flexible–a prohibition against whatever punishments a given age regards as beyond the pale? If the latter, how should the court assess what a given age regards as out of bounds? Should it rely on acts of state legislatures and, if so, how many states’ outlawing a practice should suffice to make it off limits constitutionally to the others? Should the court look to foreign law? Can it consult public opinion polls? And what happens, as with executing child rapists, when states want to open the door for a practice that has been decades in disuse. Is the Eighth Amendment a one-way ratchet–a device that can remove punishments from the policy table but which never puts them back on it–or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction? Most fundamentally, should justices–as some openly reserve the right to do–use their own judgments in deciding whether the amendment bars a given punishment or are they bound to some list of objective indicators?
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Benjamin Wittes 