Constitutional Arithmetic (or 9+8=0)

In Furman v. Georgia (1972), the Supremes said that every death penalty law in the nation violated the Constitution.  The vote was 5-4, and since each of the 9 berobed ones wrote a separate opinion there isn't what you could call a single clear rationale.  Potter Stewart, though, gave us what's understood to be the basic rule.  The death penalty is arbitrary and capricious and is, therefore, cruel and unusual punishment in violation of the 8th Amendment.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

(Footnotes omitted.)

It's always seemed to me that there's something fundamentally odd about the reliance on the 8th Amendment.

Oh, I understand the history.  The Court had made clear over and over that it wasn't going to support abolition based on a due process analysis, so the lawyers did what good lawyers do - they found another argument.  One they could sell to a Court that was willing but that had boxed itself into a corner where due process couldn't get at it.  But it is, ultimately a due process sort of claim because it's due process that prohibits the government from acting arbitrarily and capriciously.

Of course, it's also right.  When government punishes at random (and that's the "arbitrary and capricious" claim in Furman) that is cruel and unusual because it's a wholly unpredictable punishment.

Enough of that.  It's not really what I want to talk about.

Rather, I want to talk about the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

Whatever the hell that means.

Are there some specific rights "retained by the people"?  Is it simply another way of saying that the feds can only do what the Constitution authorizes?  Is it a broadbased guarantee of "human rights" or "natural rights" or those "unalienable" rights (life, liberty, pursuit of happiness) Jefferson wove into the Declaration of Independence?

Robert Bork called the 9th Amendment an inkblot on the Constitution and said that although the framers must have had something in mind, we can't know what it is and so we should ignore it rather than make something up and hope for the best.

But the courts, while wary of the 9th, haven't ignored it.  It's been key to the developed right of privacy and bodily integrity that (disparaged by judicial royalists) is a settled part of our law now and provides much of the Constitutional underpinning of, for instance, abortion law.

But let's go back, briefly, to the Declaration.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The framers (or at least the founders), thought those things "self-evident."

Still, it took a civil war and the 14th Amendment to turn self-evident equality into a constitutional right.

And those other things?  It's hard to imagine how one might enshrine the right to purse happiness in any legal rules, whether constitutional or not.  Liberty is the underlying idea of the whole enterprise, though just what it entails remains . . . . Who the hell knows.

But Life?  Hmmm.  Unalienable, which means cannot be taken away.  Except of course they really didn't mean that.  Even Jefferson, who wrote the words and was pretty close to an abolitionist (on the death penalty; of course he kept slaves, though he seems to have thought it morally problematic to do so), didn't really believe execution always wrong.

But however you muck around with the terms, the Declaration is setting out there a vision of natural law, of first principles.  And if the 9th Amendment has any meaning - and there's no warrant for declaring that if we can't understand the meaning perfectly we should pretend it was mere surplussage - then the meaning is that natural rights, first principles, remain regardless of anything else.  They are not "den[ied] or disparage[d]."

So let's talk about Life, accepting that natural law as the framers understood it did not mandate abolition.  Rather, natural law, the natural right, was a principle of equivalence.  The idea, and it goes back to the lex talionis, is that the death penalty can be justified, and therefore employed, only insofar as it is retributive.  What follows is what all those folks say.

This is too easy.  He should suffer as my brother/father/son/sister/mother/daughter/friend/relative suffered.  He should be raped and sodomized and then beaten to death and maybe have a limb or two chopped off while alive.  They should do to him what he did to them.

I've written a few times here that murder, however judicial, is an ugly thing we ought to own up to.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

The problem (OK, there's more than one) is that the 8th Amendment really won't allow that sort of thing.  Cruel and unusual and all that.  Yet if the death penalty is to be retributive, it's necessary.

John Paul Stevens finally made the point in Baze v. Rees.  It's in his concurring opinion finding that Kentucky's lethal injection protocol had not been shown to be unconstitutional.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), we explained that unless a criminal sanction serves a legitimate penological function, it constitutes "gratuitous infliction of suffering" in violation of the Eighth Amendment. We then identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution. Seeid., at 183, and n. 28, 96 S.Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS, JJ.). In the past three decades, however, each of these rationales has been called into question.

While incapacitation may have been a legitimate rationale in 1976, the recent rise in statutes providing for life imprisonment without the possibility of parole demonstrates that incapacitation is neither a necessary nor a sufficient justification for the death penalty. Moreover, a recent poll indicates that support for the death penalty drops significantly when life without the possibility of parole is presented as an alternative option. And the available sociological evidence suggests that juries are less likely to impose the death penalty when life without parole is available as a sentence.

The legitimacy of deterrence as an acceptable justification for the death penalty is also questionable, at best. Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders. In the absence of such evidence, deterrence cannot serve as a sufficient penological justification for this uniquely severe and irrevocable punishment.

We are left, then, with retribution as the primary rationale for imposing the death penalty. And indeed, it is the retribution rationale that animates much of the remaining enthusiasm for the death penalty. As Lord Justice Denning argued in 1950, "`some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.'" See Gregg, 428 U.S., at 184, n. 30, 96 S.Ct. 2909. Our Eighth Amendment jurisprudence has narrowed the class of offenders eligible for the death penalty to include only those who have committed outrageous crimes defined by specific aggravating factors. It is the cruel treatment of victims that provides the most persuasive arguments for prosecutors seeking the death penalty. A natural response to such heinous crimes is a thirst for vengeance.

At the same time, however, as the thoughtful opinions by THE CHIEF JUSTICE and Justice GINSBURG make pellucidly clear, our society has moved away from public and painful retribution towards ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. This trend, while appropriate and required by the Eighth Amendment's prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based. See, e.g., Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 Yale L.J. 681, 704 (2001) (explaining that there is "a tension between our desire to realize the claims of retribution by killing those who kill, and . . . a method [of execution] that, because it seems to do no harm other than killing, cannot satisfy the intuitive sense of equivalence that informs this conception of justice"); A. Sarat, When the State Kills: Capital Punishment and the American Condition 60-84 (2001).

(Footnotes omitted.)

Here's the thing.  There's no question that the Constitution specifically authorizes the death penalty.  But it's not a free floating authorization.  The 5th Amendment says

No person shall . . . be deprived of life, liberty, or property, without due process of law.

The 8th says that punishment cannot be "cruel and unusual."  And the 9th, I'm suggesting, says that executions must provide fair retribution, that is equivalence.

No conflict for the framers.  Due process is whatever they thought due.  Hang, with the chance of decapitation or slow strangulation in the town square; firing squad, guillotine perhaps.  Whatever wasn't cruel and unusual.

But the 8th, whatever Scalia and Thomas and Roberts and Alito might wish, does not prohibit only those acts which would have been deemed cruel and unusual by the framers.  Rather, a plurality of the Court held in Trop v. Dulles in a sentence that has become the law,

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Those standards demand humane executions.  The 9th demands retribution, which means equivalence, which means vicious killing.

And if that's right, then there's no constitutional way to carry out executions.