Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Tuesday, January 01, 2008 :::

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.)

My instinct (which turns out not to be legally binding) is that there has to be some probability between zero and one, exclusive. I doubt the court is likely to formulate a rule using a numeric probability, but I think a significant foreseeable likelihood of causing impermissible pain would be unconstitutional. I think I consider 5-10% significant, but 1% might be significant if there's a simple way of avoiding it.

In this case, though, there doesn't seem to be any data on to what the probability actually is. It seems to me - again, just my instinct - that the defense should have to prove that the policy-makers either knew or should have known (or should now know) that the method of execution is impermissible. It seems to me that the court may offer a ruling on the core issue (at least if the Chief isn't writing the opinion), but the outcome is likely to turn on who has the burden of proof. Based on what I know, whoever has the burden of proof hasn't met it.


::: posted by Steven at 11:11 PM

Comments: Post a Comment

Comment Policy

Dollars and Jens
Steven's web-site

Kitchen Cabinet
Colby Cosh
The Volokh Conspiracy
The Corner
The Bleat from James Lileks
Tim Blair
Daily Ablution
Mickey Kaus
Dave Barry
How Appealing
Virginia Postrel
Reason's "Hit and Run"
Captain's Quarters
Roger L. Simon
Power Line
IWF's InkWell
Blogs for Bush
Chetly Zarko
Signifying Nothing
Cosmo Macero
Hub Blog
Ex Parte from Harvard Law's Federalists
Harvard CR blog
Priorities & Frivolities
Daley News
Emil Levitin
Politica Obscura
Wave Maker
Town Watch
Worcester County Repubs

Election '08
Don't Vote
Dave Barry
John McCain

Other Sites of Note
Townhall columnists Cambridge Republican City Committee
Cambridge Chronicle
Robert Winters
Boston Herald
Boston Globe
Boston Metro
Channel 5
Commonwealth Mag
Fox News
Massachusetts Republican Assembly
Robert Benchley Society

U.S. Constitution
9/11 commission report [7 Meg PDF]
Iraq Survey Group report
Fahrenheight 9/11 deceits


Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

Powered by Blogger