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.