Lethally Injected: Devolving Standards of Decency in American Society
| Author | Kristopher A. Haines |
| Position | J.D. candidate, 2006 |
| Pages | 459-484 |
Page 459
The Eighth Amendment to the United States Constitution was originally intended to protect the citizenry from the potentially vengeful hand of the government.1 The Founding Fathers provided: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."2 For more than two hundred years, society has progressed with the mistaken belief that it has adhered to this mandate.3 So long as the masses are appeased and convinced of their moral superiority, the protections guaranteed under the Eighth Amendment may be undermined.
For centuries, death statutes have led to the executions of thousands of confirmed guilty and mistakenly convicted individuals.4 Interest among the populace has remained high throughout the years.5 Generally, Americans have supported the use of capital punishment as a permissible method of retribution for, and deterrence of, the most heinous crimes.6
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Dissenters have frequently and successfully exposed flaws in the majority population's underlying bases for the sanction.7
Presently, the preferred method of execution of capital convicts in nearly all states, as well as the federal government, is lethal injection.8 For years, governing bodies have assured the public that this method is the most expedient and least painful approach to ending human life.9 They are wrong. Eighth Amendment litigation is increasing in light of recent claims that lethal injection employs agonizing techniques and results in harmful effects.10 The concoction of chemicals used to bring a quick and painless death may expose the condemned to the very horrors that our Founding Fathers intended to prevent.11 Furthermore, intravenous drug users are subjected to "cut-down" surgical procedures, which involve extreme levels of pain and result in the degradation of bodily integrity.12 Indeed, lethal injection violates the minimum standards mandated by the Eight Amendment.
In order to survive an Eighth Amendment challenge, a "punishment must not involve . . . unnecessary and wanton infliction of pain."13 "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."14 Society has indeed been marked by a phenomenon of continual progression towardPage 461 supposedly more humane methods of execution.15 From public hangings and shootings to the "benign" gas chambers, methods of execution have repeatedly withered into obscurity.16 An apparently more humane method of killing always follows.17
This progression does not indicate that the most modern method is in line with Eighth Amendment jurisprudential standards.18 It shows only that science and reasoning have not caught up with the method and its cruel reality. In essence, the technique has not yet been smelt out and sent to its own death. Furthermore, the judiciary has rarely held methods of execution intolerable.19 In failing to address these issues, the United States Supreme Court has breached its duty of assuring that our most basic rights are protected.
The evolution of execution methods most often occurs as the result of public outcry-the result of firsthand or popular knowledge that particular modes of killing are barbaric in nature.20 The courts have played a minimal role in deciding which methods of execution are constitutionally intolerable-presumably because prison officials eventually adhere to the mandates of the public.21 While the Supreme Court has provided words and phrases regarding what actions might constitute cruel and unusualPage 462 punishment,22 it has not lent a hand in applying those standards when appropriate challenges have arisen.
This is alarming. Lethal injection, which will soon enter its third decade of existence as a form of capital punishment,23 has not inflamed the population to the extent of methods of the past.24 At first glance, it involves an air of solace.25 Evidence shows, however, that while the condemned do not scream and writhe about, unnecessary and wanton pain is involved in the process.26 Without public disdain and intolerance, policymakers will not adopt a method of killing compliant with Eighth Amendment standards.27
This is a recipe for social disaster and a gross violation of the rights of capital convicts. While the public will likely become fully aware of the nature of death by lethal injection and call out for its abolition as it has done with previous methods, the revolution will occur far too slowly. Lives are being taken in violation of the Eight Amendment at a staggering rate.28 As the public remains insulated from the truth behind this form of execution, policymakers will presumably do little to protect the rights of those whom they deem the most unsavory. Thus, the role of the Supreme Court becomes ultra-significant. The Court has a duty to ensure that Eighth Amendment guarantees are not abridged by the states. It must now fulfill its role of guaranteeing that even our most heinous offenders are afforded their constitutional rights. To do less would demean our Constitution's function of assuring protection for all Americans, not just the most respected members of society.
It is now time to strike down the use of lethal injection in the killing of our condemned. The use of lethal injection as a method of execution is barbaric, cruel, and impermissible under the Eighth Amendment to the United States Constitution. The Court's failure to act is intolerable. The Eighth Amendment is at the heart of our protection from the unjust tendencies of the dark side of human nature. We should not delay inPage 463 facing the obvious. It is time to evolve and mature into a more decent society.29
Part I of this Comment provides the historical background of capital punishment that led to the currently preferred method of execution. This section continues by discussing the cases that set the applicable standards of appellate review and also includes a brief introduction to the current issues. Part II contains analysis of the relevant issues. A comparison of medical, scientific, and legal authority will lend support to the thesis and refute opposing opinions. This section also includes a discussion as to why the courts and society in general have refused to confront this issue. The section will close by pointing out the effect that this phenomenon has on our society. Finally, the conclusion will provide a final assessment of the relevant issues and offer solutions to the problem.
Throughout history, the death penalty has been as ubiquitous as criminal liability itself.30 The much respected ancient empires of Greece and Rome used the death penalty to heavy-handedly enforce compliance with government policy.31 As centuries passed and legal systems modernized, the cruel nature of capital punishment failed to cease.32 Not surprisingly, the harsh consequences of capital conviction carried over toPage 464 the Americas.33 The Eighth Amendment was no doubt intended to change the rules by which punishing bodies were to play.34 Still, it was not until the late eighteenth century that wide-scale reforms were considered.35 Finally, in the early nineteenth century, states began to acknowledge the often violent, arbitrary, and peculiar nature of their death statutes.36
In the landmark 1958 case of Trop v. Dulles,37 the Supreme Court stated, "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."38 This assertion was coupled with the notion that while states may punish harshly, they must do so in a just and civilized manner.39 Nearly twenty years later, the Court noted that "American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned . . . with proscribing 'tortures' and other 'barbarous' methods of punishment."40 The Court further held that the Eighth Amendment is not to be read as proscribing only those methods of torture and execution thought to be impermissible at the time of its drafting; rather, it was intended to be "dynamic" in nature.41 Finally, the Court reiterated the sentiment of Chief Justice Warren that '"the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'"42 ThesePage 465 sentiments have been restated in numerous subsequent decisions and the language remains valid today.43
With few exceptions, the past one hundred years have seen the punitive execution of American convicts brought about in only a handful of ways.44 The gallows and firing squads once popular throughout the nation, although still lurking in some jurisdictions,45 have given way to more seemingly innocuous approaches to ending life.46 The conception that publicly held executions are an earmark of rogue civilization was most responsible for this phenomenon.47
By far, the most notorious means of carrying out capital punishment since the late nineteenth century has been the electric chair.48 Although the chair has often been attacked for its potential brutal capability,49 it managed to remain popular until the late twentieth century.50 Accounts of extended periods of torture, burning bodies, and swollen, bloodied corpses eventually led to its decline.51 Today, only nine states...
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