Which of the following scenarios constitutes cruel and unusual punishment, as prohibited by the Eighth Amendment to the Constitution: (1) aborting a baby with a fully developed nervous system and probably inflicting great pain; (2) murdering a nightclub manager in cold blood; (3) taking 34 minutes-twice the normal time-to execute the murderer of the nightclub manager?
Anti-death penalty forces want us to believe No. 3. They claim the Dec. 13 execution in Florida of Angel Nieves Diaz took too long and required a second injection, thus, violating the Eighth Amendment. Florida's outgoing governor, Jeb Bush, has suspended all executions in his state pending an investigation into the state's lethal-injection process.
At the time the Bill of Rights was written, the authors specifically sought to ban such execution methods as burning at the stake, crucifixion, and breaking on the wheel. In modern times, the Supreme Court has decided cases that redefine what the Founders meant. In Hudson v. McMillan (1992), the court ruled that the use of excessive physical force against a prisoner might constitute cruel and unusual punishment, even if a prisoner does not suffer serious pain.
The Court declared the execution of the mentally retarded to be cruel and unusual punishment and, thus, barred by the Eighth Amendment (Atkins v. Virginia, 2002). In Roper v. Simmons (2005), the court ruled it was cruel and unusual punishment to put to death anyone who was under the age of 18 at the time they committed their crime.
I don't know how you define cruel and unusual in a lethal-injection case. Angel Nieves Diaz was said to have a physical condition that required more drugs to kill him than if he had not had the condition. If those administering the drugs had known about it and given him a double dose, would that have been constitutionally acceptable? Does this not get us into the same arbitrary standards that are applied to the unborn? At first, the Supreme Court imposed an arbitrary trimester standard, forbidding the state from restricting a woman's decision in the first three months. But subsequent rulings have resulted in abortion on demand, for any or no reason and at any time.
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