Cruel and Unusual Decisions on the Death Penalty

Just when you thought it was safe to oppose to the death penalty, along comes a scoundrel like the BTK (bind, toture, and kill) murderer in Kansas, for whom any kind of execution seems too humane.

I wrote briefly about developing a consistent ethic of life as a mark of the Christian statesman, and I do believe its ability to save lives must be the biblical standard in state use of capital punishment.

But what is the Constitutional standard? The court wrestled with this as it relates to children under 18, wading into the perilous waters of the Eighth Amendment prohibition of cruel and unusual punishments.

The simplifiers of sound-bite media have derided the court this week for citing national and international consensus. It’s easy to see this as a continuation of the High Court’s decades-long trend of legislating from the bench. But how do we determine the definition of subjective terms such as “cruel” and “unusual?” Do we use the definitions of the 18th Century, when the Constitution was crafted? Or some other milestone along the way? Or shall we revert biblical times (Old Testament or New?).

What is cruel and unusual punishment? The court has now decided that the execution of the mentally retarded and those under 18 is cruel and/or unusual.

This column by Stanford professor Robert Weisberg is a reasonable examination of the issue. Here’s an excerpt:

The Eighth Amendment prohibits "cruel and unusual punishments," but for much of its history the United States has allowed the death penalty. In 1958, the court ruled that "evolving standards of decency" should define what constitutes "cruel and unusual," and since then it has been forced to confront the legality of capital punishment in various types of cases. Could the death penalty be imposed for nonfatal crimes? When the defendant did not kill intentionally or at least in a manner exhibiting "extreme indifference to human life"?

In answering these kinds of questions (in both of these cases, the response was no), the court committed itself to a challenging set of tasks. First, it would examine the patterns of state laws or court decisions to determine by a rough empiricism whether the death penalty in a particular category has become cruel by virtue of being literally unusual. Of course, this approach raises the perfectly reasonable question of how the scope of the Bill of Rights, which was designed to limit the powers of legislative majorities, could depend in part on the decisions of those very majorities.

Next, the court would consult various other sources for evidence of some sort of moral consensus. In doing so, the court would refer to philosophical or moral principles or political attitudes outside the realm of law altogether - and even to international expressions of moral value. This strategy provokes the (again perfectly reasonable) complaint that unelected jurists are now acting like pollsters, assessing the public's moral values. Or, worse, they are becoming arbiters of moral value themselves.

There do have to be cultural benchmarks that are consulted in determining the tangible implications of subjective terms. As such, as alarming as it has been made to sound in recent days, the Republic will survive the Court’s decision to take a reading of modern society.

--James Jewell