The Road to Hell

Two notes about Baze v. Rees, the Supreme Court decision that upholds Kentucky’s method of lethal injection and almost certainly ends the quasi-moratorium on executions.

First, the plurality and concurring opinions are full of references to torture. Why would that be? Well, if the cruel and unusual punishments clause of the Eighth Amendment doesn’t prohibit all death sentences (several Justices are clearly of this view), and if it doesn’t require that prison sentences be proportionate to the crimes for which they are imposed (at least Justices Scalia and Thomas are of this view), and if it doesn’t impose limits on prison conditions or specific acts of force inside a prison (Justice Thomas has taken this position, and Scalia seems to agree with him), the Eighth Amendment starts to seem pretty inconsequential. To show that this amendment is not an empty provision, it’s helpful to identify something it does prohibit. Like… torture. Justice Thomas’s concurrence in Baze begins with a list of gruesome practices that, in his view, are prohibited by the Eighth Amendment, such as burning at the stake, “gibbeting,” and “emboweling alive.” The Eighth Amendment does mean something after all: punishments are cruel (and unconstitutional) when they involve torture.

But I wouldn’t conclude that the Justices who say the Eighth Amendment prohibits torturous punishments would necessarily find current practices of allegedly investigative torture to violate the constitution. Instead, I’d expect to see the argument that torture without a specifically punitive intent doesn’t implicate the Eighth Amendment at all. In Kansas v. Hendricks, the majority took a similar approach to find that indefinite confinement for sex offenders did not violate the ex post facto or double jeopardy clauses — those clauses apply to punishments, and Leroy Hendricks’s confinement, the majority reasoned, was not intended as punishment.

Which leads to a second observation about Baze, and about Justice Thomas’s concurrence in particular: good intentions provide a lot of constitutional mileage. Where do they take us?


According to Justice Thomas in Baze, Kentucky’s execution methods don’t violate the Eighth Amendment, whatever pain they do or don’t inflict, because the state didn’t adopt these methods with the intent to inflict pain. “A method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain…” Referring again to burning at the stake, disemboweling, and drawing and quartering, Thomas writes

[W]hat defined these punishments was that they were designed to inflict torture… they were intended to produce a penalty worse than death…. The evil that the Eighth Amendment targets is intentional infliction of gratuitous pain… (emphasis in original).

Back over on the torture front, good intentions are John Yoo’s trump card as well. But here it’s not whether a public official intended to torture, but what he hoped to accomplish, that counts. Asked whether any law would prohibit the president from crushing the testicles of a terrorist’s child, Yoo replied, “I think it depends on why the president thinks he needs to do that.” Audio of the exchange here, or read Yoo’s memos for his more developed argument that self-righteous torture, torture inflicted with good intentions for the safety of the country, is legal.

In general, I suspect that the Eighth Amendment will remain pretty ineffective if its protections turn on judicial constructions of the state’s punitive intent, penological purposes, and other good intentions. I have more to say on these issues in a forthcoming article called State Intentions and the Law of Punishment (not up on SSRN yet, but I’ll post it soon). Moral philosophers — and many legal doctrines — tend to reject the notion that the permissibility of an act turns on the actor’s good intentions. Why should the permissibility of state violence turn on the state’s intentions?

Dave Hoffman raises other interesting questions about Baze v. Rees.

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6 Responses

  1. Sean M. says:

    The question, of course, is “effective against what?” If the intention of the 8th Amendment is, as Justice Thomas claims, to prevent use of torturous punishments such as drawing and quartering, then the 8th Amendment has been rather effective.

    To claim the 8th Amendment is “ineffective” is question begging, because it assumes what the Amendment is supposed to protect against, which is the crux of the issue under examination.

  2. WHB says:

    In general, I suspect that the Eighth Amendment will remain pretty ineffective if its protections turn on judicial constructions of the state’s punitive intent, penological purposes, and other good intentions.

    This may be true, but is that necessarily a bad thing, and does that necessarily say anything about whether Justice Thomas’s views are right or wrong?

    We also have the Third Amendment, but the Supreme Court has thus far resisted the urge to interpret it expansively so that it continues to prohibit things that the government is actually trying to do.

    Admittedly, the Third Amendment is more of a rule, while the Eighth Amendment contains a standard, but I think there is a general notion that the Eighth Amendment isn’t working properly if it doesn’t continue to generate friction.

  3. Anon says:

    You close by asking, “Why should the permissibility of state violence turn on the state’s intentions?” By asking the question in this way, you hint at your own answer–the permissibility should not turn on the state’s intentions.

    At first blush, your question (and implied answer) seem to contradict what Justice Thomas has written in Baze. But I think Justice Thomas’s opinion is actually consistent with that answer. Justice Thomas never claims that intentions *should* justify violence. Instead, he provides his view that, for purposes of the Eighth Amendment, intentions *do* (or can) justify violence. Under Justice Thomas’s reading of the Amendment, the normative/policy decision was made in 1791; regardless of whether that decision was correct or optimal, it was made, and we must live with it.

    Perhaps a better challenge to Justice Thomas would be based on constitutional theory or history. One could, for example, question his underlying assumption that the framers of the Eighth Amendment bound us to their normative judgment; perhaps they envisioned that future generations would make new decisions on what forms of punishment are permissible. On this line of reasoning, Justice Thomas is not wrong for telling us that intentions should justify state violence (he does not make this claim); rather, he is incorrect for omitting that inquiry as irrelevant. Alternatively, one could challenge his historical account. Perhaps the framers envisioned the Eighth Amendment as barring some punishments that did *not* involve the intentional infliction of pain. In that case, Justice Thomas might be correct in his theory of the Eighth Amendment, but incorrect about the normative judgment that was actually made.

  4. Orin Kerr says:

    Moral philosophers — and many legal doctrines — tend to reject the notion that the permissibility of an act turns on the actor’s good intentions. Why should the permissibility of state violence turn on the state’s intentions?

    Is the question permissibility or culpability? It seems to me that an actor’s state of mind is usually the foundational question relating to her culpability. Certainly 1L criminal law classes spend more time on mens rea than any other question, generally thought to reflect the importance of state of mind.

  5. Alice Ristroph says:

    Thanks to all for the comments. I’d still love to hear from anyone with theories as to why state intentions should matter to permissibility!

    As Orin points out, it’s a pretty standard view that intentions matter to assessments of culpability. But I don’t think anyone views Eighth Amendment jurisprudence as an effort to judge the “culpability of the state” (if that concept even makes sense). I’m asking about permissibility — seems to me that when a court says an act is constitutional, it’s saying the act is permissible under the constitution, and when a court declares an act unconstitutional, it’s saying the act is not permissible under the constitution.

    Why would intention be irrelevant to permissibility? To give just a couple of basic examples, a consequentialist might say that the tangible effects of action matter, not the actor’s intentions; a deontologist might say that our duties to other people are hardly satisfied simply by meaning well. (Either might also emphasize that intentions are very easily misrepresented.) For some of the classic arguments in moral philosophy, see Judith Jarvis Thomson’s articles on self-defense and physician-assisted suicide, or Tim Scanlon’s article “Intentions and Permissibility,” or criticisms of the doctrine of double effect. In a recent paper called “Intending, Foreseeing, and the State” (published in Legal Theory), David Enoch argues that many of the reasons to think intentions are irrelevant to permissibility apply with special force in the context of state action.

    Anyway, I discuss this highbrow literature in my State Intentions article, but I also like a simple lowbrow approach: why do we say “the road to hell is paved with good intentions”? Does this capture any interesting insight? Note that the phrase claims much more than that good intentions without good action are morally indifferent. My own suspicion is that we tend to emphasize good intentions precisely when our actions are most awful — which is why good intentions pave the road to you-know-where.

  6. Lowbrow Approach says:

    I’m asking about permissibility — seems to me that when a court says an act is constitutional, it’s saying the act is permissible under the constitution, and when a court declares an act unconstitutional, it’s saying the act is not permissible under the constitution.

    If you cannot be held culpable for it, then it is permitted.