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May 17, 2010


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Jason Mazzone

In what sense do you mean that Justice Thomas would "OK executing first graders" and that the Constitution "allows the execution of young children"? I would have thought that if there were executions of first graders it would be because (a) the people of a state through their elected representatives had passed a statute providing for that punishment and (b) a jury of the state had convicted a defendant and found eligibility for the capital sentence. If the Constitution does not prohibit the punishment from being carried out (an issue I set aside for now) it can hardly be said that the Constitution is what allows the punishment; a Court adhering to the Constitution's limits isn't giving the OK either but is simply acknowledging that the Constitution has no bearing on the issue.

Dan Filler

Jason, in my view, the Constitution explicitly regulates the punishment that may be imposed by elected representatives and juries. Those punishments found to be cruel and unusual are prohibited; those that are not are OK. Justices are asked to review particular punishments to see if they're "OK" and "allowed" under the Constitution. If he were brought a case where a state chose to execute a 7 year old boy for theft, I take it that Justice Thomas would say that this was OK, as a constitutional matter, because it he believes it is permitted under the regulation of punishment embodied by the 8th Amendment.

Jason Mazzone

Thank you for the clarification. Your initial post, particularly in the title, suggested (to me at least) that if Justice Thomas were to find a certain punishment not prohibited by the Eighth Amendment, he (and the Constitution) would somehow be endorsing the punishment. Because the Eighth Amendment operates only in a negative sense, instead of describing a punishment as "OK" and "allowed" I think I would simply say "not prohibited by the Eighth Amendment." So, too, I wouldn't describe the Eighth Amendment as "regulating" punishments because that term also suggests something more akin to the broad powers of a legislature.

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