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Wednesday, April 12, 2017

Re Arkansas Executions, Why Care?

I was talking with a colleague about my post on the Arkansas executions earlier this week, and she asked an important question: Why care?

Given how the condemned treated their victims, why should we care about the expedited execution process in Arkansas? And why care about the drugs we use in executions by lethal injection? For that matter, why should we care when an execution gets botched? Why not applaud instead?

It is worth pausing for a moment to think about that—why don’t we treat vicious criminals in a vicious manner?

The answer, I submit, is the same reason we do not rape rapists, or torture torturers, or set fire to arsonists’ homes. It is not because they don’t deserve it, at least in some talionic way—because they do.

It is that these people are so bad that a civilized society could never use the way they treated their victims as the baseline for how they should be treated. That sort of thinking would allow us to get even with vicious criminals—it is proportional—but a civilized society could never aim that low. This was Dostoevsky’s point in observing that “[t]he degree of civilization in a society can be judged by entering its prisons.” How we treat those we justifiably despise says more about us than them.

The Eighth Amendment’s Cruel and Unusual Punishments Clause embodies this principle—that we don’t do to others what they did to someone else, not because they deserve better, but because it would demean us.

That said, the point is less about the Eighth Amendment and more about the values that animated its adoption in the first place. Those values are important not because they are codified in the Eighth Amendment; rather, they are codified in the Eighth Amendment because they are that important.

We don’t impose cruel punishments even when criminals deserve them, and that’s because the cruelty that they impose upon their victims is no model for the way a civilized society should treat its members, even the worst of the worst of them.

Posted by Corinna Lain on April 12, 2017 at 01:02 PM | Permalink


"Then we ought not to retaliate or render evil for evil to anyone, whatever evil we may have suffered from him.” -Socrates in "Crito" by Plato

"See that none render evil for evil unto any man; but ever follow that which is good, both among yourselves, and to all men.” The First Epistle of Paul the Apostle to the Thessalonians, 5:15

"For bodily punishments we allow amongst us none that are inhumane, barbarous, or cruel.” The Massachusetts Body of Liberties, 46 (1641)

"All penalties ought to be proportioned to the nature of the offense. No wise legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. [. . .] The true design of all punishments being to reform, not to exterminate mankind.” New Hampshire Bill of Rights, Part 1, Article 18 (1783)

Posted by: mercy beaucoup | Apr 12, 2017 2:24:08 PM

We do not meet out any punishments that we would not accept for our friends or family if they were found guilty of the same thing. We would want our friends or family to be put to death in the quickest and least painful/traumatic way possible, and so that is exactly how we treat others. We extend the same due-process and punishment to others as we expect for ourselves. That's why we don't let colleges expel people until they've be found guilty by a jury in a court of law--we give due-process always.

Posted by: Phillipa | Apr 12, 2017 2:56:09 PM

"We do not rape rapists, or torture torturers, or set fire to arsonists’ homes." We do kidnap and hold against their will (by arresting and imprisoning them) kidnappers, though. We sometimes also fine thieves or embezzlers. Why is this point relevant?

Posted by: Ryan | Apr 12, 2017 3:56:50 PM

"For that matter, why should we care when an execution gets botched?"

Oregon euthenasias never get botched, which means we know we have the technology to put people to death humanely. When we can give all people on death row Oregon-style "death with dignity", there's no justifiable reason to give them lethal-injection.

Posted by: Kevorkia | Apr 12, 2017 5:52:18 PM

Awesome comments! I'm writing from the road this week (on a college tour w/ my HS junior) & these are great to see.

Mercy Beaucoup: beautiful.

Phillipa: I'm not so sure that's our practice, tho we profess it to be so. I interviewed Virginia's former executioner last year, and he said he'd never want to die by lethal injection. Firing squad best, but he preferred even electrocution to lethal injection, as the latter looks much more docile than it is. And I regrettably have to contest the "due process always"--our due process protections in the capital context are, in a number of areas, more a façade than reality.

Ryan: We might fine thieves, but we don't steal from them. And we don't kidnap kidnappers, we arrest them. I'm not saying we don't engage in retributive justice--that's the death penalty--but we don't willfully break the law because the perpetrator did. That's the point of the entire post...

And Kevorkia: my understanding is that euthanasia sometimes does get botched (there's a couple of really crazy stories out there, I'm guessing you can find them on the web) but from what I've read, it's very different euthanizing someone who wants to die as opposed to someone who doesn't. For the latter, they say, "The heart stops reluctantly..."

Posted by: Corinna Lain | Apr 12, 2017 7:55:50 PM

Well, I guess we confine kidnappers and confiscate thieves' property, and kidnappers confine people and thieves confiscate property. The government's confinement and confiscation of/from kidnappers and thieves aren't kidnapping and stealing because they're legal, certainly, but it's equally true that execution isn't murder because it's legal. I don't know where that gets either of you, but I don't think it's responsive to Ryan's point, whatever it was, to say that we don't call the government's confinement and confiscation kidnapping and theft because it's authorized by law, when the whole point of your argument is whether a proportionality-based justification for a similarly proportional sort of law is a valid moral justification or not in spite of what legal label we might attach to the state's killing people.

That being said, I was more interested in what to me at least was the somewhat startling claim that cruel punishments can in some cases be deserved, and are only prohibited because they would demean us.** Is this a view that any moral philosophers share, or that the framers of the Eighth Amendment held, as you suggest where you say that these values are the ones that animated its adoption?

** I may have misread you, but this is the language that made me think this is what you were saying: "we don’t do to others what they did to someone else, *not* because they deserve better, but because it would demean us... We don’t impose cruel punishments even when criminals deserve them...

Posted by: Asher Steinberg | Apr 12, 2017 11:15:30 PM

Corinna writes:

"We don’t impose cruel punishments even when criminals deserve them, and that’s because the cruelty that they impose upon their victims is no model for the way a civilized society should treat its members, even the worst of the worst of them."

Maybe this is obvious, but I think it's worth pointing out that there is a lot of good-faith disagreement about what counts as cruel punishments. That's where the rub is, I think. I think there is pretty wide agreement that cruel punishments should be out of bounds in a civilized society. The difficulty is that one person's cruel punishment is another person's perfectly fair punishment. And tne person's completely unacceptable risk of pain is another person's perfectly acceptable risk of pain. Like many things in law, it's a line-drawing problem and people with different values will naturally gravitate to different answers. Given that, I think Corinna's answer to her colleague may leave out the value judgment that may be doing a lot of work in the answer.

Posted by: Orin Kerr | Apr 13, 2017 12:38:16 AM

Certainly, "cruelty" is subjective, and yet, those who start from the premise that there is such a thing as "cruelty" and that it should be avoided when possible, are probably less likely to be cruel, even if only barely.

I have never heard a parent say, "I would never tell my child not to be cruel, since they might take it the wrong way".

Posted by: either-or | Apr 13, 2017 1:41:44 AM


My apologies if my comment was cryptic. Just to clarify a bit, my point is that the answer "we care because we are a civilized society" presupposes a set of contested values. The death penalty itself may be a good example. Some people, including most law professors, would say that we should not have a death penalty because we are a civilized society. Others, including most members of the public, would say that we should have a death penalty because having a death penalty is consistent with being a civilized society. The disagreement is not so much over the need to have/be a civilized society than it is over what rules and procedures are consistent with that.

Posted by: Orin Kerr | Apr 13, 2017 2:16:44 AM

According to Justice Clark's Third Law [of Semantics]:

"Any sufficiently complex legislation is indistinguishable from nonsense."

I do not think "cruel punishments" is sufficiently complex (esoteric) to be categorized as "nonsense". 60+ senators could probably come to an agreement on whether or not most punishments were cruel--even if they instead delegate the task of creating punishments to a sentencing commission or judges.

Posted by: Clarke | Apr 13, 2017 9:01:35 AM

The humane thing to do would be to apply the death penalty more sweepingly and efficiently than we do. If I had to choose between spending the next 40 years in a cage under current prison conditions or a lethal injection, I'd prefer the latter, even if some pain were involved.

I don't know how folks have convinced themselves that life or longterm imprisonment as practiced in this country is more humane than death as a punishment for egregious crimes. The same folks who will lament the inhumanity of zoos, circuses, or animal shelters seem to think that quasi-permanent captivity is fine for humans.

In addition, rehabilitation is difficult to impossible under current prison conditions in part because our prisons are teeming with mad dogs. It would be better to put them down than allow them to de facto run the prisons and terrorize fellow inmates who could be rehabilitated.

Posted by: Curmudgeonly Ex-Clerk | Apr 13, 2017 12:12:37 PM

Professor Lain:

You wrote that the principal behind the Eight Amendment is that the government conducting those "cruel and unusual punishments" would demean us. I'm curious whether you have any evidence for that explanation.

As the bill of rights was modeled on similar previous English bills of rights which were designed to protect the people, or parliament, from the King's actions, it would surprise me if the framers had in mind your high-minded rationale of protecting the punisher from moral harm. It seems much more likely to me that the principal behind the Amendment was simply that anyone might be convicted of a crime and and no one wants to suffer cruel and unusual punishments. In other words, the protections in the Bill of Rights are to protect individuals, not to protect the government.

Posted by: biff | Apr 13, 2017 6:34:00 PM

Biff, there's some great legal history work on the adoption of the 8th, and how the framers thought they were following Britain's intent in its 'cruel & unusual' clause but got the original intent wrong--my point was not to get into that history but to draw on the larger principle which was clearly animating the adoption of the clause--that it's wrong to treat criminals in a cruel manner, no matter what they did. Specifically, even if criminals treated their victims in a tortorous manner, it's not ok to do the same to them. That's not who we are or want to be, although in a talionic sense (eye for eye) some may say it's deserved.

Orin, I think you're right that the hard part is figuring out, on the margin, what's ok & what's not (and the death penalty itself is a good example) but I hope these thoughts answer the question of why we even should care about how these people are treated in light of what they've done & that's a surprisingly common question & assertion ("we shouldn't care" & even "they should suffer because their victims did").

Ex-clerk, more executions more often is not the only way to be more humane. But what we do now--put the condemned in the worst conditions, solitary confinement on death row--is a torturous sentence all of its own (as Marah McLeod's work, referenced in yesterday's post, makes clear).

Posted by: Corinna Lain | Apr 14, 2017 8:47:46 AM

Could you please point me to some of the historical work about the motivating principals of the Eight Amendment? I'm genuinely interested.

Posted by: biff | Apr 14, 2017 11:28:16 AM

Society is never going to agree to spend the lavish amounts that would be necessary to make the current system humane. So the question is how could you realistically solve inhumane prison conditions given real-world budgetary constraints. The American approach to criminal justice--criminalize a great deal of conduct, limit the death penalty to murder, make it impracticable to administer the death penalty even in those circumstances, and permanently or quasi-permanently warehouse the worst sorts of offenders--is never going to work well. So if you are not willing to put a lot more offenders to death, really what solution is there (that doesn't involve spending money you'll never have)?

Posted by: Curmudgeonly Ex-Clerk | Apr 14, 2017 11:35:03 AM

Curmudgeonly Ex-Clerk--"The American approach to criminal justice--criminalize a great deal of conduct"

This isn't the traditional American approach to criminal justice. For instance, Abortion was outlawed in most states only after the war of 1812, most drugs were outlawed after WWI (or by Nixon--Convention on Psychotropic Substances of 1971), guns were outlawed to ex-felons only after 1968, hates-speech laws came after Reagan.

So the beginning of criminal justice reform is to get rid of nearly all speech-control, drug-control, abortion-control, prostitution-control, and gun-control laws.

That is, go back to punishing actual common-law crimes, and not in addition, actions that we think lead to crimes.

Posted by: RonPaul-ite | Apr 14, 2017 12:31:44 PM

Criminal justice reform starts with police reform.

We outlaw undercover sops, entrapment, asset forfeiture without conviction, plea deals--and that will prevent most moral rules, rather than actual laws, from being enforceable.

Posted by: TransparentPols | Apr 14, 2017 1:32:54 PM

Hi Biff--and sorry to leave you hanging, I was on the road last week & off line as of Friday. As to your question about the history of the 8th Am, I have a little symposium piece that surveys that work (the more meaty stuff is in the fns)--"Lessons Learned from the Evolution of 'Evolving Standards.'"

Ex-Clerk--the irony is that we DO spend lavish amounts on incarceration now, and that doesn't make the system humane. Solitary confinement is incredibly expensive. In CA, for ex, a recent study estimated that it cost $90,000 more, per inmate, per year, to house on death row than in non-death row max security. So rather than executing more, one alternative--justifiable on economic grounds as well as for humanitarian reasons, would be to abolish the death penalty, and the incredibly expensive, and torturous conditions of death row that come with it.

Posted by: Corinna Lain | Apr 17, 2017 11:54:42 PM

why should we care about the expedited execution process in Arkansas?

The convicts in question received their sentences during the period running from 1990 to 1998. How many times you gotta spin those wheels 'ere it's not 'expedited'?

Ex-Clerk--the irony is that we DO spend lavish amounts on incarceration now,

Last I checked, when you included general state charges, expenditures for the New York State prison system were about $5.4 bn, or The Eighth Amendment’s Cruel and Unusual Punishments Clause embodies this principle—that we don’t do to others what they did to someone else, not because they deserve better, but because it would demean us.

Actually, it's a vague and unimplementable reference to drawing-and-quartering. In a civilized society, we draw-and-quarter only professors.

Posted by: Art Deco | Apr 19, 2017 9:14:07 PM

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