The Death Penalty v. The Eighth Amendment - Criminal Justice Degree Hub

The death penalty is usually thought of as a humane way to put to death the evilest criminals and to deter others from committing heinous crimes. But the extravagant costs of death penalty cases have states wondering if it’s worth the price tag. And now, with the recent botched executions, people are starting to question, once again, if the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishment.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – The Eighth Amendment to the U.S. Constitution
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Who’s For It?

Currently the death penalty is legal in the federal government, the military, and 32 states.

Florida was the first to reinstate it in 1972 after the Supreme Court struck down all existing death penalty laws.
Kansas is the most recent one to reinstate it in 1994.

Who’s Against It?

Currently the death penalty is illegal in 18 states and the District of Columbia.

Michigan was the first to abolish it in 1846.
Maryland is the most recent state to abolish it in 2013.

How Many?

Since the beginning of America’s history, over 17,277 people have been legally executed.

37 by the federal government
1,406 by the military
15,834 by the states

By years: 1608-1619: 1 | 1620-1639: 15 | 1640-1659: 29 | 1660-1679: 104 | 1680-1699: 113 | 1700-1719: 101 | 1720-1739: 177 | 1740-1759: 206 | 1760-1779: 403 | 1780-1799: 504 | 1800-1819: 618 | 1820-1839: 742 | 1840-1859: 1,013 | 1860-1879: 1,510 | 1880-1899: 2,226 | 1900-1919: 2,779 | 1920-1939: 2,968 | 1940-1959: 2,192 | 1960-1979: 197 | 1980-1999: 595 | 2000-2014: 784
By state: (including the 37 federal executions) Virginia: 1,387 | Texas: 1,270 | New York: 1,130 | Pennsylvania: 1,043 | Georgia: 1,004 | North Carolina: 827 | Alabama: 764 | California: 722 | South Carolina: 684 | Louisiana: 660 | Arkansas: 505 | Ohio: 491 | Kentucky: 427 | Florida: 401 | Mississippi: 372 | New Jersey: 361 | Illinois: 360 | Missouri: 360 | Massachusetts: 345 | Tennessee: 341 | Maryland: 314 | Oklahoma: 243 | West Virginia: 155 | Indiana: 154 | Arizona: 140 | Connecticut: 127 | Oregon: 124 | District of Columbia: 118 | Washington: 110 | Colorado: 102 | Delaware: 78 | Montana: 74 | New Mexico: 74 | Nevada: 73 | Minnesota: 66 | Kansas: 57 | Rhode Island: 52 | Utah: 50 | Hawaii: 49 | Iowa: 45 | Nebraska: 37 | Idaho: 29 | Vermont: 26 | New Hampshire: 24 | Wyoming: 23 | Maine: 21 | South Dakota: 18 | Michigan: 13 | Alaska: 12 | North Dakota: 8 | Wisconsin: 1
By method:
- Pressing: 1 (1692)
- Bludgeoned: 14 (1707 – 1810)
- Burned: 66 (1681 – 1825)
- Unknown: 67 (1641 – 1864)
- Firing Squad: 156 (1608 – 06/17/2010)
- Gas Chamber: 593 (1924 – 03/03/1999)
- Lethal Injection: 1,208 (1821 – 06/18/2014)
- Electrocution: 4,439 (1890 – 01/16/2013)
- Hanging: 10,733 (1622 – 01/25/1996)

Since 1976 with the reinstatement of the death penalty, 1,382 people have been executed.

3 by the federal government
0 by the military
1,379 by the states

By year: 1976: 0 | 1977: 1 | 1978: 0 | 1979: 2 | 1980: 0 | 1981: 1 | 1982: 2 | 1983: 5 | 1984: 21 | 1985: 18 | 1986: 18 | 1987: 25 | 1988: 11 | 1989: 16 | 1990: 23 | 1991: 14 | 1992: 31 | 1993: 38 | 1994: 31 | 1995: 56 | 1996: 45 | 1997: 74 | 1998: 68 | 1999: 98 | 2000: 85 | 2001: 66 | 2002: 71 | 2003: 65 | 2004: 59 | 2005: 60 | 2006: 53 | 2007: 42 | 2008: 37 | 2009: 52 | 2010: 46 | 2011: 43 | 2012: 43 | 2013: 39 | 2014: 23
By state: (including the 3 federal executions) Texas: 515 | Oklahoma: 111 | Virginia: 110 | Florida: 87 | Missouri: 75 | Alabama: 56 | Georgia: 54 | Ohio: 53 | North Carolina: 43 | South Carolina: 43 | Arizona: 36 | Louisiana: 28 | Arkansas: 27 | Mississippi: 21 | Indiana: 23 | Delaware: 16 | California: 13 | Illinois: 12 | Nevada: 12 | Utah: 7 | Tennessee: 6 | Maryland: 5 | Washington: 5 | Idaho: 3 | Kentucky: 3 | Montana: 3 | Nebraska: 3 | Pennsylvania: 3 | South Dakota: 3 | Oregon: 2 | Colorado: 1 | Connecticut: 1 | New Mexico: 1 | Wyoming: 1 | Alaska: 0 | District of Columbia: 0 | Hawaii: 0 | Iowa: 0 | Kansas: 0 | Maine: 0 | Massachusetts: 0 | Michigan: 0 | Minnesota: 0 | New Hampshire: 0 | New Jersey: 0 | New York: 0 | North Dakota: 0 | Rhode Island: 0 | Vermont: 0 | West Virginia: 0 | Wisconsin: 0
By region:
- South: 1,125 (81.4% of executions)
- Midwest: 169 (12.2% of executions)
- West: 84 (6.1% of executions)
- Northeast: 4 (0.3% of executions)
By method:
- Firing Squad: 3
  - Currently 2 states allow it: Oklahoma | Utah
- Hanging: 3
  - Currently 3 states allow it: Delaware | New Hampshire | Washington
- Gas Chamber: 11
  - Currently 3 states allow it: Arizona | Missouri | Wyoming
- Electrocution: 158
  - Currently 8 states allow it: Alabama | Arkansas | Florida | Kentucky | Oklahoma | South Carolina | Tennessee | Virginia
- Lethal Injection: 1,207
  - Currently all 32 death penalty states, the federal government, and the military use lethal injection as their primary method.

Double Take with the Eighth Amendment

Death of the Death Penalty … Almost

Furman v. Georgia: In 1972, the supreme court attempted to settle the debate. Here’s how they ruled:

The death penalty is not cruel & unusual:
- Chief Justice Warren E. Burger
- Justice William H. Rehnquist
- Justice Lewis F. Powell
- Justice Harry Blackmun
The death penalty is cruel & unusual – as it was applied:
- Justice William O. Douglas
- Justice Byron White
- Justice Potter Stewart (morally apposed)
The death penalty is cruel & unusual – always:
- Justice Thurgood Marshall
- Justice William J. Brennan

Basically, they struck down all existing death penalty laws saying that the states were handling them in a “freakish and wanton” manner and thus was unconstitutional; however, the death penalty in and of itself was not unconstitutional.

They banned the death penalty until states could fix their laws. They also established 4 principals to determine if a punishment was cruel & unusual.

Is it degrading to human dignity?
Is it arbitrary?
Is it rejected throughout society?
Is it unnecessary?

Raised from the Dead

Gregg v. Georgia: By 1976, just 4 years after the ban, 35 states had enacted death penalty statutes in line with the 4 principles established under Furman v. Georgia. So, with Gregg v. Georgia, the supreme court reestablished the death penalty. Here’s how they ruled:

The death penalty is not cruel & unusual – with the proper procedures in place:Chief Justice Warren E. Burger
- Justice William H. Rehnquist
- Justice Lewis F. Powell
- Justice Harry Blackmun
- John Paul Stevens
- Justice Potter Stewart
- Justice Byron White
The death penalty is cruel & unusual – always:
- Justice Thurgood Marshall
- Justice William J. Brennan

Justices Powell, Blackmun, and Stevens later changed their minds (in 1991, 1994, and 2008 respectively) on the death penalty saying that it is unconstitutional and should be abolished. Had they voted in 1976 how they would come to believe, the death penalty would have been abolished for over 40 years.

In order to determine if the death penalty is currently cruel and unusual, let’s look at each of the 4 principles the supreme court established in 1972.

Is It Degrading to Human Dignity?

Lethal Shortage

Typically, lethal injection involved 3 drugs (administered by prison staff since physicians are precluded from participating in execution):

Sodium Thiopental: an anesthetic that puts the inmate to sleep within 30 seconds
Pancuronium Bromide: a paralytic that stops breathing
Potassium Chloride: stops the heart

Average time it takes to die: 8.4 minutes

No shortage of protest.

In 2011, Hopira, the main supplier of sodium thiopental, ceased production of the drug from their Italian plant because the U.S. used it for the death penalty; a use Hospira opposes.
States turned to England and India to get sodium thiopental, but the FDA wouldn’t approve it for the death penalty. The UK banned it, and the DEA started seizing supplies.
States started using pentobarbital instead, but the company that produces pentobarbital, Lundbeck in Denmark, opposes the death penalty and halted distribution to any state that practices it.
Over a dozen major drug suppliers have followed suit.

Compounding Problems

Compound pharmacies synthesize drugs intended for specific prescriptions backed by a doctor-patient relationship.
These pharmacies fall outside the regulatory scope of the Food and Drug Administration.
Some states refuse to disclose the untested, unregulated drugs they’re buying.
There are now a wide variety of untested/undisclosed/unregulated cocktails being used.

The First of their Class:

West Virginia was the first state to use lethal injection in 1821 – Texas came next in 1982
Ohio was the first state to use only sodium thiopental – 2009
Oklahoma was the first to use pentobarbital in a three-drug cocktail – 2010
Ohio was the first state to only use pentobarbital – 2011
Florida was the first to use midazolam in a three-drug cocktail – 2010
Ohio was the first to use midazolam in two-drug cocktail – 2014

When the Doc’s away…

The American Medical Association argues that a doctor “should not be a participant” in executions – which leaves the dosage and administering of these drugs to a team of prison employees.

With a myriad of untested drug cocktails mixed with inexperienced administrators, things end up being… well, a little “cruel and unusual.”

Botched

About 3 percent of all executions are botched.

Lethal injections have the highest botched rate of 7% – that’s roughly 97 lethal injection executions gone awry. The most recent 2 happening in 2014:

01/16/2014 – Ohio botched Dennis McGuire’s execution. He was given hydromorphone and midazolam which left him gasping for air, his stomach heaving, arched back and making snorting and choking sounds… for 25 minutes.
04/29/2014 – Oklahoma botched Clayton D. Lockett’s execution. Oklahoma refused to disclose the source and efficacy of the experimental drugs being used. The supervising physician mistakingly announced that the condemned was unconscious before the executioner administered the cocktail. Three minutes after the drugs were administered, Lockett began writhing on the gurney. The witnesses were ordered to leave and they halted the execution. Lockett died 43 minutes later from a heart attack.

Exonerations

Since the reinstatement of the death penalty in 1976, 144 innocent people have been released from death row – that’s over 10% of executions:

Clemency

Since the reinstatement of the death penalty in 1976 274 death row inmates have been given clemency – that’s 20% of executions. Clemency is usually given because of doubts about the defendant’s guilt or the governor’s view on the death penalty.

Death Row

There are currently 3,103 (including 6 in the military) awaiting lethal injection.

At our given rates of botched executions, exonerations, and clemencies:

217 executions of current death row inmates will be botched.
310 of current death row inmates will be innocent.
610 of current death row inmates will be shown mercy.

Is It Arbitrary?

Unfortunately, the outcome of death penalty trials largely depends on geography, race, gender, and the ability to afford a lawyer. These factors are arbitrary in that they have nothing to do with the crime itself.

Some get it, some don’t: Only 2% of murder cases get the death penalty, and they’re not always the ‘worst of the worst’. Charles Cullen (13 murders) and Gary Ridgway (48 murders) are both doing life sentences after pleading guilty – far worse crimes than most on death row.

Geography: The South has held 81.4% of all executions since 1976 and in 2008 it was up to 95%.

Cincinnati’s county accounts for 25% of Ohio death row inmates but only accounts for 9% of Ohio murders.
Upstate New York accounts for 61% of New York death row inmates but only accounts for 19% of New York murders.

Race: 96% of states where studies have examined race and the death penalty have found patterns of discrimination.

Blacks make up 51% of homicide victims and whites make up 46% – but 76% of executions are for white victims and only 15% are for black victims. [This means the system tends to execute more when a white person is killed and less when a black person is killed.]

Gender: Women make up 10% of murders but account for only 1% of executions.

Bad reps: Most death row defendants are appointed a lawyer by the court. These lawyers are often overworked, underpaid, and inexperienced at trial.

Texas found that 1 in 4 death row inmates were represented by court-appointed attorneys who have been disciplined for professional misconduct.
Washington has a 20% disbarment rate for lawyers of death row inmates compared to 1% for the public.

Is It Rejected throughout Society?

Public Opinion

A 2010 poll asked what the punishment for murder should be:

Options other than the death penalty: 61%
- Life without parole + restitution (pay money to the family of the victim): 39%
- Life without parole: 13%
- Life with parole: 9%
The death penalty: 33%
No opinion: 6%

A 2007 poll shows 58% of the public wanting a moratorium on the death penalty.

Voters in death penalty states:

would vote for (or don’t care if) a politician opposes the death penalty: 62%
would not vote for a politician that opposes the death penalty: 35%

International Opinion

The Company We Keep:

There were 6,221 executions in the world from 2007-2012 – America ranks 5th:

The Company We Don’t Keep:

96 countries have abolished the death penalty including:

America is the only major western country that still executes its prisoners.

Is It Unnecessary?

Deterrence

98% of the nation’s police chiefs and 88% of the nation’s top criminologists say that the death penalty is NOT important in reducing violent crime.

69% of the nation’s police chiefs and 91% of the nation’s top criminologists say that politicians support the death penalty in order to appear tough on crime.

If the death penalty deters crime, we should see lower homicide rates in states and regions where the death penalty is used; however, we see the opposite:

South: has a 5.5/100,000 homicide rate but accounts for 81.4% of executions.
Midwest: has a 4.7/100,000 homicide rate but accounts for 12.2% of executions.
West: has a 4.2/100,000 homicide rate but accounts for 6.1% of executions.
Northeast: has a 3.8/100,000 homicide rate but accounts for 0.3% of executions

States without the death penalty have had consistently lower homicide rates:

Year	Murder Rate in Non-death Penalty States	Murder Rate in Death Penalty States	Percent higher in Death Penalty States than non-death penalty states
1991	9.27	9.94	7%
1992	8.63	9.51	10%
1993	8.81	9.69	10%
1994	7.88	9.23	17%
1995	6.78	8.59	27%
1996	5.37	7.72	44%
1997	5.00	7.09	42%
1998	4.61	6.51	41%
1999	4.59	5.86	28%
2000	4.25	5.70	35%
2001	4.25	5.82	37%
2002	4.27	5.82	36%
2003	4.10	5.91	44%
2004	4.02	5.71	42%
2005	4.03	5.87	46%
2006	4.22	5.90	40%
2007	4.10	5.83	42%
2008	4.05	5.72	41%
2009	3.90	5.26	35%
2010	4.01	5.00	25%
2011	4.13	4.89	18%

The Cost of Death

Most of the added cost to death penalty cases is during trial. Many cases are tried seeking the death penalty but few actually result in an execution. By abolishing the death penalty, states could save millions to appropriate to other more effective ways of reducing violent crime.

Money saved per year if they abolished the death penalty

California: $170 million
Florida: $51 million
New Jersey and North Carolina: $11 million

Extra money spend per case seeking the death penalty instead of life without parole:

North Carolina: $2,600,000
Maryland: $1,900,000
Texas: $1,533,000
The federal government: $543,000
Kansas: $520,000
Washington: $470,000
Indiana: $407,000
Colorado: $384,000
Oregon: $221,958
Nevada: $212,000
Tennessee: $15,000

65% of Americans favor replacing the death penalty with life without parole and use the savings to fund crime prevention programs. Only 30% oppose and 5% have no opinion.

So, do you think the death penalty is degrading to human dignity or is it morally acceptable? Is it arbitrary or is it a consistently operable system? Is it rejected throughout society or do we hold it as one of our values? Is it unnecessary or is it the only suitable punishment for certain crimes?

Sources:

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