The Greater and the Lesser

Last week, the 8th Circuit ruled in an 8-3 en banc decision that a prisoner had not stated a viable claim against Missouri's lethal injection protocols. The Court also held (this time 7-4) that the prisoner had not stated a valid claim because his complaint only conceded in the abstract that alternative methods of execution were constitutional; he did not specifically say "X method of execution would be constitutional."

The dissenting opinion by Judge Bye begins as follows:

The constitutionality of the death penalty itself is not before us in this case, and we proceed on the assumption the death penalty is constitutional. While it follows there must be a constitutional means of carrying out a death sentence, it has not been determined that Missouri's current execution protocol is constitutional.

Is this true (at least as a matter of logic)? I'm inclined to think not. It is perfectly sensible to me the opinion that the death penalty is constitutional in the abstract -- there is no constitutional problem with the state taking a person's life for certain heinous crimes -- and that as it turns out there is no method for carrying that sentence out that satisfies various constitutional constraints. The former question is one of pure legal principle, but the latter is about particular factual assessments about, e.g., the amount of pain and suffering caused by various execution methods and the "evolving standards of decency" that cause our society to reject certain types of punishment as intolerable under the 8th Amendment. Indeed, hasn't this been the functional position of Jewish law: The death penalty is okay in the abstract, but the secondary rules surrounding it interact in such a way as to make it practically impossible to carry out?

It does not seem wrong to me that government might have a certain power in the abstract but that other constitutional constraints make the practical means of carrying that power out a null set. The problem with the dissenters' position (shared by the majority) is that it distorts constitutional doctrine. The constitutionality of any individual execution protocol is a distinct question from the abstract constitutionality of the death penalty. If an execution protocol fails whatever specific 8th Amendment doctrine we have, it does not matter whether we can envision another procedure that would alleviate these concerns.