The woeful state of the Eighth Amendment is, truth be told, not the
fault of the current crop of justices. It is a mess they inherited, one that
dates back nearly a hundred years to the court’s earliest efforts to interpret
the Eighth Amendment. The court has always spoken in vagaries on this subject--describing
a flexible, dynamic prohibition but consistently failing to articulate the
precise mechanism by which a practice goes from constitutional one day to
verboten the next. Against a backdrop of this sort of mush, every justice has
little choice but to follow his or her own instincts or else, as Scalia and
Thomas do, to reject the premise of a century’s worth of case law. The result
is that cases that should be easy under the amendment’s plain language become
agonizing and cases that could be resolved on the basis of evidence and
principles become impressionistic.
Two years ago, I wrote an essay attempting
to sketch an alternative to this jurisprudential train wreck. The idea was that
instead of either pretending the amendment bans only torturous deaths or having
justices grope about in their own souls to identify what the court once called
“the evolving standards of decency that mark the progress of
a maturing society,” the court should focus on the actual words of the
amendment itself. To be precise, it should be asking two
simple questions about a punishment challenged under the Eighth Amendment: Is
it cruel? And, if so, is it unusual?
Imagine for a moment how easy the lethal injection case last week
would have been under such a test. Sure, the question of whether the use of
this drug cocktail is “cruel” may be tricky; there seems to be no question that
if the drugs are administered properly, they cause no pain and, if the
procedure is botched, they can cause excruciating pain. So whether their use is
cruel depends, as a practical matter, on the likelihood of error and the
avoidability of that error using a different combination of drugs. But even if it
is cruel, the practice is manifestly not unusual. The challenged drug
combination, after all, is the norm in death penalty states--which are still a
majority of the states in the country. So by any understanding of the amendment
that a middle school kid would understand, the cocktail does not offend its
terms.
This approach being far from modern Eighth Amendment law, however, not
a single justice proposed to resolve the case on such grounds. Indeed, the
court has somehow developed a large body of Eighth Amendment law that
assiduously avoids giving clear meaning to the text’s key terms. It is as
though First Amendment law had never bothered to define “speech” or the court
had neglected to give meaning to the terms “unreasonable” or “search and
seizure” in the Fourth Amendment. When the court so fails, the only thing left
is how the justices feel.
Focusing on the words of the amendment would not eliminate from
Eighth Amendment cases a measure of subjectivity, which is probably inherent in
the word “cruel” and, to a lesser extent, “unusual” as well. Nor is it clear,
at least not to me, whether it would move the court in a more liberal or more
conservative direction in the long run. That would depend on how the court ends
up defining the terms in question. But such a focus would allow for a dynamic
interpretation of the amendment that is not pure politics, and it may offer a
common vocabulary for the justices to resolve cases that today needlessly
divide them.