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Jens 'n' Frens |
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The Supreme Court is planning to hear a case on whether lethal injection is "cruel and unusual" because it can be painful if misperformed. Orin Kerr sums up the argument. An excerpt:The brief for the defendant (the one making the constitutional claim) tries to deal with these issues by making two moves. The first move is to aggregate risks: the brief argues that when determining the risk of pain, the Court should aggregate all of the executions that use a particular protocol: the question shouldn't be whether a particular execution is likely to involve inadvertent pain, but rather the chances that someone will suffer terrible pain if the protocol is allowed given the hundreds of people who may be executed using that protocol. (Brief at 42). The aggregation move magnifies the risk; it's not just one person's isolated risk that matters, but rather the cumulative risk of everyone in the future or in the past subject to that protocol.Question: would it be unconstitutional to sentence someone to be raped? If so, is it unconstitutional to sentence criminals to prison as long as the incidence of prison rape is non-zero? (If not, I'm not sure I have a follow-up question, but I have a follow-up double-take.) |
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