By Michael A. Foley
Justice Marshall as soon as remarked that if humans knew what he knew concerning the loss of life penalty, they'd reject it overwhelmingly. Foley elucidates Marshall's declare that primary flaws exist within the implementation of the loss of life penalty. He courses us during the historical past of the ideally suited Court's demise penalty judgements, revealing a constitutional quagmire the court docket needs to navigate to prevent violating the elemental tenant of equivalent justice for all.
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Extra resources for Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty
Frankfurter hesitates to move in that direction. For Frankfurter, the privileges or immunities clause was not designed to force on the states, through incorporation, the limitations the first eight amendments placed on the federal government. ”74 Continuing, Justice Frankfurter argues that the due process of law clause does not apply to the states either, at least in their criminal law. ”75 States must be free to establish their own notions and philosophies about the enforcement of law, as long as fundamental principles of justice are not violated.
More specifically, the Eighth Amendment clause prohibiting cruel and unusual punishment refers to punishments that involve torture. “Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture5 . . ”6 Execution by firing squad does not qualify as unusual because others, including the military, have used it. Consequently, execution by firing squad does not fall into the domain of cruel and unusual punishments.
Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture5 . . ”6 Execution by firing squad does not qualify as unusual because others, including the military, have used it. Consequently, execution by firing squad does not fall into the domain of cruel and unusual punishments. That being the case, the Court does not even consider whether the Eighth Amendment applies to the states through the Fourteenth Amendment.