Roy,

I agree and disagree.

I agree with your policy
conclusion.  One of my college professors asked my class what
problems could we envision if getting a parking ticket meant the death
penalty.  Nobody, including me I hate to admit, knew the “best”
response he was looking for:  If a parking attendant was about to
give a ticket, the driver would have significant incentive to kill the
attendant.

I disagree with your legal argument.  It is the Supreme
Court’s role to determine whether a punishment qualifies as “cruel and
unusual” punishment.  For it it be a state issue only, one also
would have to believe that the Eighth Amendment shouldn’t apply to the
states (maybe you do believe this).

Here’s an interesting Policy Review article
that I just ran across regarding the Court’s jurisprudence on the
meaning of cruel and unusual punishment.  It is worth reading for
anyone interested in this issue.