As a citizen, I’m opposed to capital punishment. As a lawyer, I believe lethal injection does not violate the 8th Amendment and that Bucklew v. Precythe was correctly decided. As a student of constitutional interpretation, I believe that originalism was entirely irrelevant to the soundness of that decision.
I have argued that one should (rebuttably) assume that every word in the Constitution has a primary meaning today that is identical to the primary meaning it had when the Constitution was adopted. This argument is based on the etymological findings of the Oxford English Dictionary, which I believe are more reliable and inherently less biased than law office lexicography. Prof. Stinneford, in contrast, believes that, in the context of the 8th Amendment “unusual” means “contrary to long usage,” rather than the more common or usual (pun intended) meaning of “rare” or “uncommon.” He also writes: “[T]he most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage. If it is significantly harsher than tradition will permit, it is cruel and unusual.”
I agree that “unusual” currently means “rare” or “uncommon”, and I also believe it had that same non-technical, ordinary meaning in 1791. The O.E.D.’s primary definition of “cruel” is: “Disposed to inflict suffering; indifferent to or taking pleasure in another’s pain or distress; destitute of kindness or compassion; merciless, pitiless, hard-hearted.” According to the O.E.D., that has been the primary meaning since at least 1297.
Here is why I believe originalism is irrelevant to the decision in Bucklew. I assume there is general agreement that the use today of lethal injection is constitutional. But lethal injection was used for the first time as a method of execution in the U.S. in 1982. Was that first use a violation of the 8thAmend?
As I understand Prof. Stinneford, this question would require comparing lethal injection to traditional methods of execution and, if the former is significantly harsher than those traditional methods, lethal injection would be unconstitutional. But, because lethal injection had never been used before its first use in 1982, there was no empirical, factual basis on which to compare the harshness of that method to the harshness of traditional methods. One would have been simply guessing if one said, as a matter of fact, that lethal injection would afford a gentler, less painful death than traditional methods. The only thing that could be known with relative certainty, prior to the first use, was that the method had been devised on purpose to minimize suffering.
Thus, even before the first use there was substantial evidence that lethal injection was not “cruel” in the ordinary meaning that word has had since 1297—that is, it was not a method “disposed to inflict suffering”—but there was no evidence at all whether the method was harsher than methods previously used. Wondering whether lethal injection “is significantly harsher than tradition will permit” gets us no closer to an answer to the question of the constitutionality of its first use; we have no procedure to measure a priori harshness. Asking whether the method was designed or disposed to inflict suffering does provide an answer, and that answer turns on the definition of “cruel”—a definition that has been valid for more than seven hundred years. And that same, simple definition–without reference to abstruse questions of comparative harshness of punishments–fully supports the result in Bucklew, because there was no evidence that the method of lethal injection approved in that case was designed with a view toward the infliction of special or enhanced suffering on a convict who had a rare tumorous condition in his throat. As the Bucklew majority observed, nothing in the 8th Amendment purports to "guarantee a prisoner a painless death."
Posted at 6:20 AM