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.