Cruel and unusual punishment

But that all brings us back to the question everybody seems to be arguing about here lately.

Was what happened during Krista Pike's execution attempt cruel and unusual punishment? I've heard a lot of people talking about how much she must have suffered, how terrifying it must have been, and whether anybody deserves to go through something like that.

And I understand why people are asking those questions.

But after spending all this time reading about what happened to Colleen Slimmer, I'll tell you this much.

All right.

So there's been a lot of discussion about cruel and unusual punishment, uh, in the state of Tennessee and here in, uh, Nashville specifically.

Lot of talk about cruel and unusual punishment and, and what it is and, and so forth, and I for one will not stand as a Tennessean, I will not stand for cruel and unusual punishment.

So as a Titans fan, I will not be watching the game this weekend.

[crickets chirping] Wait, was it not, was it the delivery? Was it just too soon? Like, w- why? 'Cause I th- I thought that was good.

...

the setup made the whole joke actually a joke.

You know, there's been a lot of talk in Tennessee an- and, and here in Nashville about cruel and unusual punishment.

All right, here's the original text of the Eighth Amendment.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Cruel and unusual punishments, a term that was adopted from England and meant to protect the people from a tyrannical government.

But what was cruel and unusual punishment?

So what's interesting, the Court first says, "Very hard to know what this means." But then they go on to say, "The one thing we can say with some certainty is that it had something to do with torture, that torture's not good." And they reference things that they were, would be pretty sure would be cruel and unusual punishment: drawing and quartering, disemboweling, burning at the stake.

My name is Carol Steiker.

I'm a professor at Harvard Law School.

I'm the author of Courting Death: The Supreme Court and Capital Punishment.

Her lawyers also are pushing just generally to ensure that she not get executed again.

They argue that what happened already with this botched execution, where they put seven different needles into her arms in this attempt to actually execute her, uh, amounts to cruel and unusual punishment, and that the only just outcome after this, uh, failed execution would be to lower her sentence to life in prison.

All of this is so unprecedented.

She is said to be speaking.

There's all sorts of, of, of lethal injections, uh, beyond what, uh, they were using in Tennessee.

So, uh, my guess is no because I think many people believe if you're gonna execute people, it's the more humane way.

[phone ringing] Now, obviously, when, when this happens this way, then people are gonna go, "Then this is, you know, sort of cruel and unusual punishment." Some people have even, you know, call it torture.

So, so we'll see.

You should be efficient at it if you're gonna do it.

There are these laws about you can't subject someone to cruel and unusual punishment.

And in the witness room that night sat a mother, a mother who came up from Florida.

Not the mother of Christa Pike, a mother who had waited thirty-one years for justice.

He was released on bail after nearly 30 years in prison, and he's still awaiting a new trial.

Maybe they'll try him, maybe they'll drop the charges, which they should do.

Talk about cruel and unusual punishment.

I sat in front of Texas lawmakers and testified for Robert Roberson, because I do not believe that man ever got a fair trial.

Tennessee just kept coming back to, "Yeah, we can't accommodate any of that.

We're, we, we do the lethal injection thing despite not having a great track record out, of it." Um, w- what does that mean? Does it d- does it mean anything that they're raising, uh, issue early on, uh, now that this has kind of crossed into the cruel and unusual punishment territory? [laughs]

Oh, it, it very well could.

You know, any, any good lawyer is going to try to set up potential claims, uh, that, that could be brought later on to pre- to preserve those claims.

What do you do?

Yeah.

So, um, one thing that they've already done, uh, Christa Pike's team, is they, they filed, of course, an Eighth Amendment cruel and unusual punishment motion saying, "Hey, this lethal injection is gonna be cruel and unusual, violates the Eighth Amendment." And, and the court said, "Hey, no, generally speaking, lethal injection does not violate the cruel and unusual punishment prohibition of the Eighth Amendment, and so too bad." But what, what they're gonna do now is they're gonna do what's called an as applied challenge.

And what that means is that, um, the Eighth Amendment as applied to these specific circumstances, even if the court thought generally it's permissible, generally lethal injection's constitutional, in this case as applied to Christa Pike based on the botched execution and the alleged injuries she suffered therefrom, in this instance, it is an as applied challenge under the Eighth Amendment that it is cruel and unusual based on the specific facts of this case.

Six justices of the Supreme Court presided over and indeed blessed the torture of a condemned woman this week.

And even in an era where the cruelty is so often the point, the cruel and unusual punishment of Krista Pike at the hands of government stands out and perhaps stands for this Supreme Court's posture towards justice and the Constitution.

In a few moments, we're going to be speaking to Professor Karina Barrett-Lane, author of Secrets of the Killing State, the Untold Story of Lethal Injection, about this miscarriage of justice and science and human dignity under color of law.

Later on in the show, I'm going to be joined by Senator Sheldon Whitehouse to talk about the Supreme Court's next move to close off climate action.

Most Americans do understand what the Eighth Amendment means, I think, and understand that it has evolved over time.

What you're saying—and I think this is an important thing to button down—is that the jurisprudence itself, the technologies, the sanitization of execution— Every part of how we practice capital punishment has kind of gone in the opposite direction.

In other words, made it okay to not think about this in terms of cruel and unusual punishment.

And I think in some ways, this botched execution is emblematic of how everybody understands now what happens in that room.

Okay, first it was hanging, then they went to the firing squad, take your pick, then they went to the electric chair.

To me, the electric chair, if you want to talk about cruel and unusual punishment, quote unquote, I mean, you're being fried.

You know, if you were to ask me, "Jeff, you know, you, you got hanging, you've got the firing squad, and you've got the electric chair." Well, I would take the firing squad first, 'cause that's gonna be over very fast, but I'd rather take hanging over the electric chair.

You know, but Mike is like, "What if the firing squad misses?" [laughs] Mike, these are...

I mean, we've, we've talked about Lindsay Clancy, we've talked about others.

Um, but I mean, we're talking about a devil worshiper who murdered an autistic 18-year-old girl in, I think, maybe the most barbaric, sickening way imaginable.

Like, you want to talk about cruel and unusual punishment, it wa- it was torture beyond imagination.

It was, they killed her to take her into a dimension of hell.