You might not expect a discussion of whether the U.S. Supreme Court could declare the death penalty unconstitutional consistent with the 8th Amendment to become lively, but that’s what happened Aug. 8 when a group of about 25 judges and attorneys met at the Main Library Conference Center.
“We’re about education and a good discussion,” said Rogers Towers attorney Adam Brandon, president of the Federalist Society Jacksonville Lawyers Chapter.
The society hosted guest speaker John Stinneford, professor at the University of Florida Levin College of Law and assistant director of the Criminal Justice Center.
Stinneford’s presentation centered on the definition of “cruel and unusual punishment.” That’s prohibited under the 8th Amendment, along with excessive bail and excessive fines.
He said “cruel and unusual” is difficult to determine, and added, “punishment means pain, but where do we draw the line?”
Penalties, like whipping, and body mutilation, such as branding, were considered acceptable in the late 18th century, when the Constitution was written, but as society has evolved, it has gotten “kinder and gentler,” Stinneford said.
Another consideration, he said, is the legislative escalation of penalties for some crimes that occurred since the 1960s.
“Seven states — including Florida — authorize chemical castration for sex offenders,” Stinneford said. “We’re getting medieval, but the public loves it. You can’t do anything too bad to a sex offender.”
He said the key word in the 8th Amendment is “unusual.”
“It doesn’t mean rare, uncommon or out of the ordinary. It means contrary to long usage. In other words, new or innovative.”
Under common law, if a given practice were used universally for a very long time, “it’s stable and enjoys multigenerational consent of the people. That gives it the power of law,” Stinneford said.
Therefore, he said, in order for the Supreme Court to declare the death penalty unconstitutional consistent with the Bill of Rights, the penalty would first have to be “out of favor” for 100 years.
The local chapter is part of a national organization that’s generally conservative or libertarian.
It does not take political positions or endorse candidates, but rather serves as an educational resource on constitutional government, separation of powers and the judiciary’s responsibility to interpret law, not make law.
Brandon said the Jacksonville group traditionally has met quarterly, but is expanding its schedule of speakers to six times a year and has launched a Facebook page: Federalist Society Jacksonville Lawyers Chapter.
The next speaker, to be scheduled in October, will be John Fund, national affairs columnist for National Review and a former member of he Wall Street Journal’s editorial board.
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