Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘Eighth Amendment

“I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold”

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the chairNicole Flatow at Think Progress has a small bit of good news on the death penalty front.  “A newly elected Ohio Supreme Court justice who achieved the unlikely feat of ousting an incumbent without accepting any campaign contributions is not wasting any time in asserting his opposition to the death penalty.”

The opinion is short, but powerful, even as it leaves out some of “the other compelling rationales for abolishing the death penalty – its arbitrary and racially discriminatory imposition, and the alarming frequency of wrongful convictions.” I thought it was worth quoting Judge William O’Neill in full. Read the rest of this entry »

Written by David Kaib

January 31, 2013 at 5:18 pm

Judges as Agents of Cruelty: Policy Learning and Official Actors

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[C]ourts play a key role in sustaining and even creating the cruel conditions currently found in American prisons and jails. In this sense, judges, too, become agents of cruelty. Just as prison officials learn cruelty through repeated exposure to prisoners in a context that denies their shared humanity, judges develop a cruel disposition towards prisoners through the repeated demand that they validate as not cruel conditions that are clearly at odds with the state’s carceral burden. Existing constitutional standards require courts to find for the state even when prisoners face obvious risks of serious physical or psychological harm. To do so, judges must learn to suppress any instinctual sympathy they may have for follow human beings who have experiences gratuitous suffering. Indeed, if they are to enforce prevailing standards, judges must learn to cease altogether to recognize prisoners’ shared humanity–a lesson, it bears remarking, that once learned only makes it easier for courts to satisfy the imperative of judicial deference to prison officials.

Sharon Dolovich, “Cruelty, Prison Conditions, and the Eighth Amendment” (pdf)

Written by David Kaib

December 7, 2012 at 5:21 pm

The Death Penalty System is Lawless: Texas to Defy the Law (Again)

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Paul Campos notes the most recent injustice in our death penalty system—the state of Texas plans on executing a man with the IQ of child (for a crime he may well not have even been present for) despite the Supreme Court ruling in Atkins v. Virginia (2002) that the Eighth Amendment bars executions for defendants with “mental retardation.” Read the details if you can stomach it, but Campos sums up the situation well.

Wilson is a poster child – in every sense – for the savage arbitrariness of the death penalty as it is employed by the state of Texas. Poor, black, with the mental age of a six-year-old, he was sentenced to death for his ambiguous role in a drug-trade murder, when literally every day in America people are given far lighter sentences for more heinous crimes.

The death penalty system is lawless – if a state were forced to respect the law and conform with due process, it would collapse.  That this is done in the name of law and order is one of the more patently false claims in politics, which is saying something.  The Venn diagram showing those who vigorously support the death penalty and those who take constitutional rights and avoiding executing the innocent seriously does not intersect.  Killing someone is more important than preventing future crimes, our constitutional system, or playing fair.  It’s worth asking what purposes this serves, because it sure isn’t justice. And no, the fact that our discourse is so lopsided on this issue cannot be blamed on regular people, who are closely divided.  This punitiveness is driven by our failing elites.

Also, remember that 33 states and the federal government still have the death penalty.  It is not isolated to places like Texas, but is common in places where progressives have more leverage. And it will never end there until it’s ended in places like Maryland and California (on the latter see Yes on 34).

Written by David Kaib

August 2, 2012 at 12:01 pm

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