January 26, 2006

End of the Death Penalty?

The United States is the last remaining Western democracy that still executes prisoners. Since the reinstatement of capital punishment in 1976 after a four-year hiatus, the United States has executed 1007 people, including the mentally disabled, and those who committed crimes as juveniles (a procedure which until recently ruled unconstitutional put us in the good company of nations such as Iran and Pakistan).

The American death penalty has come a long way since the day of public hangings. Many states have either officially or effectively phased out the death penalty, and the electric chair and gas chamber have been phased out as "cruel and unusual" punishment.
While anti-capital punishment activists have long focused on legislative bans and attempts to prove the innocence of those who have been executed, it now appears that lethal injection, the supposedly quick and painless alternative to the brutal methods of the past, could also be ruled unconstitutional.

As the BBC reports, the US Supreme Court yesterday issued a temporary stay in the execution of Clarence Hill in Florida, on the grounds that the chemical cocktail of lethal injection could cause pain, and therefore would violate the US Constitution as cruel and unusual punishment. It is yet to be seen whether this will cause a temporary moratorium on US executions, as few states have an alternative to lethal injection for executions, and a decision is not expected until the summer.

The BBC also reports that, besides the 37 states where lethal injection is the preferred method, electrocution remains legal in 10 states and is the only method available in Nebraska, the gas chamber remains in five states that also offer injection, hanging is still legal in New Hampshire and Washington, and firing squads are still legal in Oklahoma and Idaho.


  1. The Hill case is really puzzling because on its face it's actually about the procedures for challenging an execution method under the Eighth Amendment, rather than the substantive question of whether the method is cruel and unusual punishment.

    It's a really odd case, and it's entirely possible that the Supreme Court will decide almost nothing at all.

    See this guy's commentary here:

    This is another weird question that makes me annoyed with the liberals. You don't like the death penalty, but you can't get a majority to agree with you, so you go crying to the courts to ask them to put it in the Constitution.

    If you think that the states are making "progress," let them continue to do so.

    What I'm really afraid will happen (though I doubt it will) is that the Court will go for all the marbles, and we'll get a 5-4 opinion written by Justice Kennedy extolling the virtues of a living Constitution, pointing out all of the countries in Europe that don't have the death penalty, finding some contorted way of counting the states so that it looks like there's a "national consensus" against it, and declaring that the death penalty is therefore unconstitutional.

    Then the battle over judicial nominations will flare up again, there will be charges of "judicial activism," and "culture of life" versus "culture of death" will be thrown around, and the Supreme Court will become a live political football again.

    Though this is just my bias. It may be no coincidence that I think the guillotine should be used in traffic court. But I'm willing to accept that the Constitution forbids that.

  2. The case could set the stage for every prisoner scheduled for execution to appeal the method of punishment in the future, and would likely lead to the Supreme Court actually having to decide whether injection is cruel and unusual.
    First off, its not just us liberals who oppose the death penalty. The segment of people who otherwise identify as conservative that oppose the death penalty is pretty significant.
    Public opinion on the death penalty is pretty interesting. In 1965, a Harris poll showed 38% of Americans in favor, and 47% opposed. More recent polls show 60-70% in favor and 20-30% opposed. Something interesting to note, however, is a finding from 1996 poll: If a convicted murderer was given a "true" life sentence (without parole), 20% of those in favor of the death penalty changed their minds.
    The problem with the death penalty is this idiotic "soft on crime" rhetoric that scuttles the political will to do anything. Trust me, its not the activists and those opposed to the penalty who favor this kind of creepingly slow narrowing of capital punishment use and methods.
    When I say states are making progress, there are many that since reinstatement have executed 0 or very few people. Some have passed laws, some have declared moratoriums, and some have had courts declare it unconstitutional. Even where the death penalty is never used, it is still politically difficult to officially ban its use.
    This isn't "liberals crying to the court." The decisions come from the appeals of those who face execution. We'd all prefer if a few politicians had the grapes to say, this isn't about how we enforce crime, this is about how we behave as a society, or how we prevent egregious abortions of justice, or how we save money by not trying appeal after appeal, or whatever the rationale happened to be.

    What you're really afraid of is a living constitution? I don't think that's the only issue here. Although I'd like to note, I don't see how asking "What are our current moral, ethical, and legal standards are?" is more preposterous than asking "WWTFFD?" (What would the Founding Fathers Do). We've come a long way since 1776, and since we tossed that whole slavery thing, anyone who doesn't believe that our standard of , for example, what constitutes cruelty has changed might be an idiot. I think there are various aspects of capital punishment that make it fit the label of "cruel and unusual."
    The "evolving standard" wasn't the only factor in Roper v. Simmons, by the way. The court also overturned a previous decision, stating that the legal distinction of 18 years old as the line between adulthood and minority was in fact relevant.

    Even if you are an originalist, however, there are very convincing reasons to throw out the death penalty. I don't think its that hard to predict the current trend a few decades into the future, when most if not all states will have banned the death penalty. What frustrates me though, is that political posturing prevents the issue from being considered on its merits, and so countless executions will occur between now and then.
    I'm rambling a bit. I plan on addressing this in a more organized way in the near future, but, until then bmc, you campaign for your idea of capital punishment, I'll do it for mine, and we'll see what happens.

  3. Anonymous11:22 PM

    "The segment of people who otherwise identify as conservative that oppose the death penalty is pretty significant.
    Public opinion on the death penalty is pretty interesting."

    It's the Catholics, man, I'm telling you. We just don't want *anyone* killed, in prison, in utero, in Iraq, just please give me an anti-killing-people candidate!

    Here's a crazy idea: perhaps "what our current moral, ethical, and legal standards are" has changed since 1787. The branch that is supposed to reflect such changes in standards is more clearly the legislative one than either of the other two. I don't really want the court to get involved in this.

    Those "current moral, ethical, and legal standards" are very different in Massachusetts (where I am and capital punishment isn't) than in Alabama (vice versa). The federalist system seems perfect for this kind of thing. I say it's working, maybe not perfectly, but it's preferable to judges getting involved.

    I also think that if someone does decide formally and officially for the whole nation that standards have never changed since 1787, the first thing we should do is reinstate tar-and-feathering, because that shit was the bomb.

  4. Every time I rant in the comments thread of a blog, I end up regretting it. This is no exception.

    I have my own views about the death penalty (mostly I think it's great and that it should be dished out more often), and I've noticed that they seem to be less and less popular every year. That's fine with me. If the United States eventually repeals all of its death penalty laws, then the people have spoken and I can live with that.

    What I object to is the Supreme Court deciding that the states are moving too slowly and that it knows better than the rest of us. If 37 states have lethal injection, then our "evolving standards of decency" probably don't include the sentiment that lethal injection is cruel. It also strikes me as a little silly that people think that a few seconds of pain before someone dies is "cruel and unusual."

    The best argument against the death penalty, in my opinion, is that the distinction between the people who are eligible for it and don't get it and the people who are eligible for it and do has very little to do with how "bad" the criminals are and a lot to do with race, income and lawyer quality. If it's not true that we execute "the worst of the worst," but rather "the poorest, least white and worst represented of the worst," then that's a reason for getting rid of it--through the legislatures.

    This may have veered way off of the topic of the original post, but to get back on topic, it does not look like the Hill stay will result in a temporary moratorium on U.S. executions. It could be that only two Justices are really concerned about the lethal injection procedure.