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History of the Guillotine

In the first days of the French Revolution, the staunch advocate for the abolition of the death penalty Joseph-Ignace Guillotin was unsuccessful in getting the assembly to vote for the abolition of the death penalty. Because he was abhorred by the butchery of executions with axe, sword, and gallow, he altered his approach. He proposed that going forward, all executions should be carried out with a machine. His proposal of 10th October 1789 was, "a machine that beheads painlessly". Allegedly, he said on 1st December of 1789 in a follow-up session "Now, with my machine, I cut off your head in the twinkling of an eye, and you never feel it!"

In the committee that actually invented the Guillotine he was joined by a certain Antoine Louis, a Professor of medicine, who together with a German engineer created the first prototype based on earlier inventions used elsewhere in Europe.

The first documented use of a working Guillotine was in April 1792, However, within less than a year of the first public use, the Loisiette or Guillotine would be used by the Tribunals to harvest heads all over France, and would become the symbol of the coming "La Terreur" and Robbespierre's regime. Between April 1792 and Robbespiere's execution, roughly 17000 people were officially executed, 10000 died in prison awaiting trial.

Ruritania's Proposal

Let's assume that Ruritania is admitted as the newest state to the United States of America. In restructuring its laws, the lawmakers also look at reforming the death penalty for murder, treason, and attempting to promote slavery. To make things easy on themselves, they also adopt the AMA ethics code wholesale, akin to Oregon.

One of the Ruritanian assemblymen digs up the speech notes about Guillotin in the 1793 assembly and brings the best facsimile of it he can do. The question comes to a vote and the outcome is clear: Ruritania rewrites its law to prescribe that anyone condemned to death shall face it on the Guillotine. He is allowed to consult a doctor to gain medicine against stress, anxiety, or expected pain as he desires (as long as the doctor complies with the AMA ethics guidelines in their dealings), and other amenities common before the execution (e.g. last meal, spiritual counsel, goodbye to family). As a measure of decency, only the governor or someone directly ordered by him is allowed to press the button that lets the hatchet fall and as witnesses for the execution, only a certain number of those directly damaged by the condemned are allowed, recordings are banned.

Challenge by Smith

Smith is a Ruritanian Citizen. Smith is condemned for all three capital punishment types (murder, treason against Ruritania, and promoting slavery by attempting to buy a slave). Smith is appealing that the Guillotine would be "Cruel and Unusual" in the United States of America and thus brings a challenge against his newly set execution method based on the constitution.

Would Smith's challenge against the Guillotine have a chance?

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Constitutional challenges and defenses of the death penalty tend to revolve around the "cruel and unusual" wording. It's interpreted by its supporters (and by most) to only ban punishments that are simultaneously cruel and unusual.

Death penalty is currently broadly recognized to be cruel per se. (Whether it was considered such by the drafters is uncertain: in the 17th century, when the English Bill of Rights coined the phrase, death was prescribed for almost all crimes, and major crimes were differentiated there by particularly cruel methods of execution.)

The legal basis for employing death penalty in the US is that it is widely practiced, in states employing it, and therefore not unusual.

The idea that switching to a different method of execution might represent an unusual punishment has been one of the barriers and challenges against adopting less painful methods of execution. Even the UN recently raised noise over it1.

Smith's challenge against the guillotine would have a chance, because this method hasn't been common in the US or in the hypothetical Ruritania. In 2019, the court rejected a condemned prisoner's request for nitrogen, because it hadn't been used before.

Allowing only guillotine for execution would be challenged for being more cruel and more unusual than the common methods, and likely on other grounds. Even though it's quick, arguments would be made that it represents dismemberment, which is normally a crime. It's also a more prominent display of cruelty than "invisible" methods, which have largely been chosen for how they look, not how they affect the prisoner.

The real-life Smith failed his challenge in part because he, himself, asked for nitrogen asphyxiation as a method. As to whether someone would be able to avoid execution altogether through such a challenge, that's unlikely with a conservative or mixed court. But they would certainly be able to secure a different method of execution.


P.S.

1 Most of the arguments against nitrogen are inconsistent with medical science. Hypoxia is a common cause of fatal accidents in mining, maritime shipping, manufacturing, diving, caving, and more. Its main danger is that it creeps in slowly and can't be noticed without special equipment The ultimate target of most such challenges is death penalty itself.

If even that got challenged, consider how many more challenges could be mounted against the guillotine - possibly enough to stay execution until natural death.

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  • Smith was chosen as a generic name, not because of the case of Smith v Hamm.
    – Trish
    Feb 1 at 11:20
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    @Trish be that as it may, the example is illustrative of the point being made in this answer.
    – phoog
    Feb 1 at 11:31
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    Considering the history of the guillotine, The method should be considered tried and tested - and it was actually proposed by lawmakers in Georgia to replace lethal injection. slate.com/news-and-politics/2013/11/…
    – Trish
    Feb 1 at 11:50
  • with this house bill text: web.archive.org/web/20131004235314/http://www.legis.ga.gov/…
    – Trish
    Feb 1 at 11:53
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    @Lag It's not necessarily more cruel, but it's more unusual. And the appearance of cruelty would also give rise to all kinds of challenges. People don't spend 20 years on death row because the state lacks execution chambers, they spend it in appeals.
    – Therac
    Feb 1 at 14:08

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