A Procedural Quagmire

Over at Fault Lines (and if you haven't been going to Fault Lines, you should start), Christian Farias has a post on the constitutional difficulty of getting the Supreme Court to declare the death penalty unconstitutional.  The problem is a constitutional conflict.  

Chief Justice Warren's plurality opinion in Trop v. Dulles holds that the 8th Amendment's prohibition of "cruel and unusual punishments" 

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

Those evolving standards are where constitutional abolitionists try to make their stand.  But the 5th Amendment specifically authorizes capital prosecutions and executions.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And as as Antonin Scalia, who hates Trop the way Ted Cruz hates Obamacare, pointed out in his concurring opinion (responding to Breyer's call for an outright 8th Amendment challenge) in Glossip v. Gross, 

It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.

As Farias says, 

It's a devastating textualist argument.

I'm not a textualist (though I think the text matters far more than Breyer does, since he believes more in what he imagines the Constitution wants to achieve than in what it actually provides), but I've long understood that conflict to be seriously problematic.  

Of course, the problem can be resolved easily enough by the Rule of 5.  The Constitution, after all, means only and precisely what 5 members of the Supreme Court say it does.  If there are 5 votes to say that the death penalty violates the 8th and is therefore unconstitutional, Scalia's fulminations won't matter.  And that's clearly been the hope for nearly 40 years.

But there's another way, the way Harry Blackmun was pointing in Callins v. Collins  when he concluded that the death penalty was unconstitutional.  

The 8th Amendment requires that the death penalty be imposed fairly, consistently, and reliably.  The 5th Amendment says that as long as there's sufficient process, executions are constitutional. Blackmun's epiphany, after his years of "tinkering with the machinery of death" is that the requirements cannot be reconciled.  What we've come to learn, what experience has taught, is that the framers expectation cannot be satisfied.  No amount of process is sufficient to achieve what the 8th Amendment requires.  

Here's Blackmun (footnotes omitted):

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

It's not the "evolving standards" of the 8th Amendment that the death penalty fails. It's the conditional authorization of the 5th Amendment.

At least, that's one argument.

Is It Really Botched If He Ends Up Dead?

An hour and 57 minutes.

He gasped some 650 times for all but the last 17 minutes or so.

They gave him the fucking drugs a second time because, well, who knew if he'd ever die.

It was torture said John McCain who knows a thing or two about torture.

Smooth sailing said Jan Brewer and the AG and Kent Scheidegger and a spokesman for Arizona's DOC who all declared, with the certainty of the ignorant, that he was sound asleep through the whole thing and felt absolutely no pain or discomfort even if it took longer than they'd expected.

The family of his victims complained that it wasn't nearly ugly enough, and how dare people wish it were easier on him.

What if the federal judge had ordered it stopped and him revived?  Could they have done it? Apparently, they could have.  And could they then have tried to kill him again?  Nina Totenberg pointed to Ohio where the Supreme Court has agreed to answer that question in Romell Broom's case.

Like Ohio, and like Oklahoma, and like every other state where lethal injections go horribly wrong despite repeated declarations that it was all cool, they'll investigate and review.  And like all those states, they'll guarantee that the investigation will be independent because it will be conducted by the same people who ordered and carried out the killing.  Inspector, investigate yourself.

And like those states, and Missouri and Georgia and Texas and Louisiana and everywhere else, they'll explain that it's vital that they kill and insist that the who and how and where they get the drugs must be secret.  Because the people demand killin' but would stop it if they knew who was involved.

We once executed at high noon.  In the town square.  So the people could see the consequences and learn.  The killing was to be as John Bunyan says in a different context in Pilgrim's Progress, both "caution and example."  But of course the people partied.  And the pickpockets thrived.  

So they moved it inside.  Hidden away.  Did it at midnight.  Away from the throng, which just wouldn't learn.  And then earlier in the day, because why pay overtime or force the killers to miss time with the wife and kids afterwards?

I've said before that if we're going to do this, we should own up to it, give up the pretense of gentle killing and necessary murder.  Forget the ban on cruel and unusual punishment.  Admit that it's by God murder.  Have them tied down and gnawed to death by rats in Yankee Stadium. Put it on pay per view. Then we'd have to allow that it's no more than revenge.  Really just blood sport.  

Alex Kozinski, Chief Judge of the Ninth Circuit, dissenting from that court's refusing en banc review of a decision of a panel of that court staying the execution so that Wood could get information about the drugs Arizona was going to use and where they came from and like that so he could determine whether his killing would likely prove to be torture (citation deleted, emphasis added). 

Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See  But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.

He's OK with that splatter.  I'm not.  But then, I'm opposed to the whole enterprise.  We're better than that.  Or we're supposed to be.  That's why we hide it.  Why we pretend to medicalize.  Why it's supposed to be kinder and gentler.  Really, this is for your own good.

Which is, of course, bullshit.

His name was Joseph Wood.  He was murdered by the State of Arizona.  It took an hour and 57 minutes.  He gasped some 150 times during all but the last 17 or so of those minutes.  They had to drug him a second time.  They said it all went really well.  They lied.

life in prison, with the remote possibility of death.

Cormac Carney went to the Air Force Academy for a year, then transferred to UCLA where he played football.  He played professionally for a year after college, then went to Harvard for law school.  In January 2003, Bush the Younger nominated him to be judge of the U.S. District Court, Central District of California.  He was confirmed by the Senate three months later.

None of that, except indirectly the fact that he's a judge, is why I'm writing about him.  Hell, it isn't why I wrote about him in 2009 or 2011, either.  I write about him every couple of years because every couple of years he does something remarkable from the bench.

He holds the government accountable for its misconduct in prosecuting folks they think are bad guys.

Judges just don't do that.  On the rare occasions they acknowledge that the government cheated, they blow it off.  It was inadvertent.  It didn't matter anyway.  Can't make an omelet without breaking a few eggs.  But Carney.

In 2009, he dismissed, with prejudice, fraud and conspiracy charges against Broadcom.  

Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anything to intimidate or improperly influence witnesses. Sadly, government did so in this case.

In 2011, he was the judge in Islamic Shura Council of Southern California v. Federal Bureau of Investigation. The government's lawyers lied to him, and he called them on it.  They said they had a right to do it.  National Security and all.  Because terrorism.    To which he said, fuck you. (Though not in those words.)

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Wednesday afternoon, he did it again.  This time it wasn't prosecutors or lawyers.  This time it wasn't the feds.  It was, instead, California.  Which in a detailed, carefully laid out and factually delineated 29 page opinion he excoriated for creating a systematically dysfunctional death penalty system.  It's captioned

ORDER DECLARING CALIFORNIA'S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER'S DEATH SENTENCE.

It's not that he says the death penalty itself is a problem.  It's the way California implements it.  Here's the guts of it, laid out in the first two paragraphs.

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 

There are, Judge Carney points out, since California's death penalty law took effect in 1978, more than 900 men and women have been sentenced to die.  13 have been executed.  93 have died of natural causes, drug overdoses, homicide, or suicide. 1 was killed by another state. There are, today, 748 on death row.

Why the problem?  Why can't California be Texas (or Ohio)?  Because it won't provide the resources. 

Every death sentence must be reviewed by the California Supreme Court.  

To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel. See Cal. Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them.

(Footnote, explaining that they're all indigent, omitted.)

But why that delay?  Oh, cause California cut the funding of public defenders to do the work and won't pay enough for appointed counsel to take it on.  Same for state habeas relief where the state won't provide the necessary funding for lawyers or investigators.

So, because California insists on having a death penalty but refuses to provide the resources necessary to make it functional, it just has a system of (one more time) 

life in prison, with the remote possibility of death.

And that possibility isn't merely remote.  It's also random, arbitrary.  Under the circumstances, and because of California's actions not the inmates', the law loses any deterrent value it might otherwise have and fails even to provide meaningful retribution.  Or so he says.

And that's unconstitutional.

Kamala Harris, California's Attorney General, says that she's reviewing the decision to decide whether to appeal.  It's hard to imagine that she won't.  And hard to imagine that if she does Judge Carney won't ultimately be reversed.  

Not because he's wrong.  But because he's right.

Because Law of Rule.

  Carney Order

Can't Win for Losing (Or Is That Lose for Winning?)

It would seem to be over.

Those whose job it is to have the last word have had it.

The condemned man loses again.

Sorry, guy.  And may God have mercy. . . .

Wait.  Cancel that last sentence.  I mean, maybe.  God might yet have mercy, but the court won't. The governor won't.  It's all over but the hand wringing and the wailing of the condemned man as he's led back to his cell.

His name is Gary Haugen, and he can't win for losing.  Which he did, Thursday, in the Supreme Court of the State of Oregon which unanimously said that he has no right to die.  More precisely, they said he has no right to be executed.  More precisely still, they said he has no right to insist on having his death sentence carried out despite the Governor having granted him a reprieve.

A brief review of the plot (which you can follow in more detail by reading through prior posts here) seems in order.

Haugen was sent to prison for life for the murder of his girlfriend's mother.  While he was in prison, he killed another inmate and was sentenced to death.  He refused to appeal and as the date of his execution came closer, Governor Kitzhaber granted him a reprieve to last as long as Kitzhaber remained in office. To which Haugen said something like,

Thank you, but I decline your kind offer.

or maybe it sounded more like

Fuck you and the horse you rode in on.  I ain't taking no fucking reprieve.  And you can't make me.

Which, Oregon being part of the good ol' US of A, naturally meant litigation.  Haugen won the first round, the judge declaring that although he wasn't particularly happy to rule that way, the governor can't just grant a reprieve.  All he can do is offer one.  If he does, the prisoner can accept or reject it.  And so the Governor appealed and now the Ohio Supemes have spoken  And they told Haugen to shut up.  Oregon's constitution gives the prisoner no say in whether to accept a reprieve.  The governor can just do it.  And he did.

As for Haugen's claim that the uncertainty of what will happen next is cruel and unusual punishment, well, you can pretty much guess how that came out. "We do not doubt," wrote Chief Justice Balmer,

that being on death row, awaiting possible execution and facing uncertainty as to if, and when, that sentence might be carried out, exacts a toll on people.

But the toll is not so great as to violate the Constitution. Besides, the Eighth Amendment prohibits imposing punishment.  Suspending a punishment isn't imposing one.

So Kitzhaber wins.  Reprieve remains.

Haugen is undaunted.  Per Helen Jung in the Oregonian.

In a phone interview, Haugen vowed to keep fighting, although he acknowledged the chances of success are slim.
But it is important to keep challenging Kitzhaber, Haugen said, questioning why the governor has not convened a committee to examine the death penalty or taken other action to change Oregon's capital punishment system since issuing the reprieve. 

Of course, had Kitzhaber done that, the reprieve might have turned into a permanent commutation. And then where would Haugen be?

Oh, yeah.  He'd be off death row.  Wouldn't that be a bitch.

  Haugen v. Kitzhaber by jmgamso

Hang 'em High

It's never enough.  There is no equivalence.  There can't be until we admit, really until we embrace, that it's about vengeance pure and simple.  And until we write the last vestiges of the 8th Amendment out of the process.

I've written about this repeatedly.  Here's what I say.

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.

Oh, sure, as I said, there's that pesky 8th Amendment thing about how there can't be any 

cruel and unusual punishments inflicted.

But, hey.  We're talking about bad guys here.  Surely there's a way around it.

The problem is that we don't want to admit that we want blood, that we're actually killing.

So we pretend.  We make it look pretty, cosmeticize it, medicalize it, sanitize it.

And then we're frustrated because . . . .

Because, dammit all murder is murder.  

Finally, at last (or OHMYGOD depending on your perspective), there's this guy.

His name is Brad Drake and if you live in District 5 in Florida,

he's your State Representative.  And he's got a plan.  Scrap that oh-so-nice lethal injection equipment.  From his press release.

Over the past few weeks there has been much discussion and debate regarding the effectiveness of certain medicines used as preferred method for execution. So, I say let's end the debate. We still have Old Sparky. And if that doesn't suit the criminal, then we will provide them a .45 caliber lead cocktail instead.

That'll teach 'em.

I am sick and tired of this sensitivity movement for criminals,” Drake said. “Every time there is a warranted execution that is about to take place, some man or woman is standing on a corner holding a sign, yelling and screaming for humane treatment. However, I have no desire to humanely respect those that are inhumane.”

Yeah, by god.

Give Drake credit.  He doesn't just talk the talk.  On Tuesday, he introduced HB 325 to stop this mollycoddling of the due-to-be-killed.

Fla. HB 325

So good for Brad. He knows he's a killer.  He's happy to admit it.  Happy to say, this is who we are and what we do.

But really, if he's going to admit it, why stop with the chair and the firing squad.  What about the gibbet?  Ritual beheading?  Drawing and quartering?  Hell, why not crucifixion?

And that 8th Amendment thing?  Newt thinks it's cool for the President to refuse to obey the Supreme Court and the Constitution.  Surely Florida can do no less.  Just ask Brad.

H/t Joe H & Turley

Lacking the Courage of Their Convictions

The Ohio Supreme Court today unanimously upheld the conviction and death sentence of Edward Lang  (State v. Lang.)

Oh, a couple of minor things may not have gone exactly right.  

• The prosecutor mischaracterized some evidence.
• One of the jurors lied during voir dire.
• The judge got it wrong when he told the prospective jurors how to decide on a death sentence.

That sort of thing.  But, really, you know, Lang was a bad guy and well, he did kill those people.  So, well, 

Off with his head!

(But nicely, by lethal injection.)

That's what typically happens in Columbus.

And if that were all that happened, I'd be doing a different post right now (though one still about this case - one I may write later today).  But that's not all.  Because Justice O'Donnell's opinion was joined only by three others of the seven (O'Connor, Lanzinger, and Cupp).  The others, agreed with the result, but --

Well, that's were it gets interesting.  And even more disheartening than these things usually are.

You need to start with Evelyn Lundberg Stratton.  She's one of the more interesting of the seven on the court.  Known informally as the Velvet Hammer for her harsh sentences in felony cases when she was a trial judge in the early 1990s, she was named one of the Outstanding Young Women in America in 1983 and 1985 when she was an associate with an Ohio firm.  Even before then, though, she was a star, winning first place in Girl's Goat Tying at the LeTourneau Stampede in 1972 when she was attending LeTourneau College in Longview, Texas.  Oh, and did I mention that she was born and raised in Southeast Asia.  (I'm not making any of this up.  You can learn all that and more on her page and it's links at the Supreme Court's website.)  What's maybe more relevant about her is that she's something of a mental health activist.  (Again, you can check out her page.) 

Her concern for the mentally last came up in a capital case in 2006.  That was State v. Ketterer, where she explained in a concurring opinion that Ketterer suffered from severe mental illness and therefore shouldn't be executed.  But, since Ohio law allowed the execution of the seriously mentally ill, so be it.

The time has come for our society to reexamine the execution of persons with severe mental illness. Until the General Assembly does so, under our current law, they will continue to be executed. As I am bound to follow the law as it stands today, I reluctantly concur in the affirmance of Ketterer’s sentence of death.

She was, of course, both right and wrong. 

She was right that people with severe mental illness shouldn't be executed.  And she was right that Ohio law didn't prohibit their execution.  But she was wrong in concluding that she had to affirm the death sentence of someone who was, in John Blume's words at a death penalty seminar some years ago, "really fucking crazy."  There were two reasons she didn't have to do that.  

First, she got to decide, independently, whether the aggravating circumstances in Ketterer's case outweighed the mitigating factors.  If she thought being really nuts should be a basis for exclusion from death (even if the Ohio General Assembly didn't agree), she was not merely free to vote to reverse the death sentence, she was obligated to vote for reversal.

Second, she could have decided, based on her understanding of the 8th Amendment's ban on cruel and unusual punishment or of the similar ban in Section 9, Article I of the Ohio Constitution.  That the court's hadn't agreed with her to that point didn't prevent her from staking out the territory.

In any event, she didn't.  (Nor did Justice Pfeifer who joined her concurrence in Ketterer.

And now she's done it again. (And Pfeifer, too, and also Justice McGee Brown.)  This time, she explains that she doesn't think the courts should prohibit execution of the crazy but that the legislature should.  The reason is that it's hard to quantify just when someone is crazy enough not to be killed.  Let the General Assembly decide on a suitable degree of nutsiness.  From Lang.

Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. The General Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply.” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 246-247 (Lundberg Stratton, J., concurring).

Hmmm.  How would that work?  Got it.  A person who's insanity is 12 doesn't get killed but insanity at 11 does.  Oh, wait, insanity doesn't come like that?  Damn.  Back to the drawing board.

But that still doesn't answer the independent weighing question.  If severe mental illness should be a complete exclusion, then even if it's not an 8th Amendment violation, and even if the legislature hasn't said so, it should be enough of a mitigating factor to save Lang's life.

But no.  Not one of the three would go there.

Let's be clear.  It takes four votes on the Ohio Supreme Court.  Three dissents from death isn't enough. But they'd make a point far more potent than just urging the General Assembly to care about this stuff.  And they'd be doing what their oath and law both require - independently determining the weight to be given to the mitigating evidence that Lang was severely mentally ill.

Might even convince a fourth.  Which would be enough to save a life.

Maybe next time.

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.