Is Amputation “Cruel and Unusual” Punishment?

Here’s an accurate headline from a few weeks ago, “Supreme Court Bars Executing Mentally Retarded” Exactly — the Court did it, not the Constitution. The Court decided to substitute its judgement for that of the duly elected legislatures of 20 states and the jurors in every death penalty case where the defendant’s lawyer can show that his client scored below some arbitrary level on an I.Q. test. Of course, a person should not be held accountable if he doesn’t have the mental capacity to understand what he is doing. That decision, however, should be left to the judgment of individual juries in individual cases, or at least to the legislatures in the various states.

The Eighth Amendment forbids “cruel and unusual punishment.” Smart people who run the country for the rest of us have been kind enough to explain that:

The Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oftquoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Hogwash. What does that have to do with the law? When we make laws, we write them down. We use words. Those words mean something. We write them down precisely because we want that meaning to remain fixed over time. Those who drafted and ratified the Eight Amendment prohibited “cruel and unusual punishment” — which meant something at the time. The majority in Gregg v. Georgia actaully tells us about what the phrase originally meant, although why they bothered is beyond me since the original meaning is supposedly irrelevant:

The history of the prohibition of “cruel and unusual” punishment already has been reviewed at length. The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. The American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing “tortures” and other “barbarous” methods of punishment.

(Notes and citations omitted). See how it works? “Barbarous” is a word any lawyer can drive a truck through. But, stick to the text and think. Whatever they were trying to prohibit, it cannot include a punishment that another section of the Constitution explicitly allows. Now, look at the double jeapordy clause: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” So you can’t face the death penalty or amputation twice for the same crime — but once is just peachy. It’s right there in plain English. I don’t make this stuff up.

What does the prohibition against “cruel and unusual” punishment mean exactly? I’m not sure. But, it certainly does not mean that either the death penalty or amputation or executing someone who scores poorly on an I.Q. test is categorically off-the-table.

This entry was posted on Tuesday, August 2nd, 2005 at 11:11 pm and is filed under Constitution and Courts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.