The Red Tape Curtain: Procedural Requirements for Requests for Alternative Execution Method Shrouding Reevaluation of the Constitutionality of the Death Penalty.

AuthorThornton, Anna

"Finality and federalism need no extra thumb on the scale from this Court, least of all with a human life at stake." (1)

  1. INTRODUCTION

    Russell Bucklew was executed by lethal injection on Tuesday, October 1, 2019. (2) Although lethal injection has been a method of execution in Missouri since 1987, Bucklew claimed the protocol was unconstitutional under the Eighth Amendment as applied to him. (3) His argument rested on his rare medical condition, called cavernous hemangioma, which he claimed would cause him to experience severe pain when injected with pentobarbital, the drug Missouri utilized in lethal injections. (4) On April 1, 2019, the Supreme Court ended Bucklew's search for an alternative method of execution and denied his request, citing insufficiencies in his pleadings and claims. (5)

    The death penalty existed as a punishment for certain crimes even before the founding of the United States, but the constitutionality of this punishment has been questioned under the purview of the Eighth Amendment since the Amendment's ratification. (6) Although the death penalty was struck down by the Supreme Court in Furman v. Georgia (7) in 1972, the Supreme Court held only four years later that the death penalty is not per se unconstitutional in Gregg v. Georgia. (8) In addition to the U.S. Government and the U.S. Military, twenty-five states actively retain the death penalty as of 2020. (9) In fourteen of those states and for the U.S. Military and Government, the sole method of execution is lethal injection. (10)

    Over time, execution methods have evolved. (11) As the methods of execution change, challenges to the constitutionality of new methods arise, and the broad framework of Eighth Amendment jurisprudence accommodates that evolution. (12) Challenges against a particular method of execution have taken the form of requests for alternative methods under 42 U.S.C. [section] 1983. (13) As of 2015, an inmate's request for an alternative method of execution must meet the Baze-Glossip test, which requires a "feasible, readily implemented" alternative method of execution that "significantly reduce[s] a substantial risk of severe pain." (14) In Bucklew v. Precythe, the Court held that the Baze-Glossip requirements, which place the burden on the inmate, are applicable to both as-applied and facial claims. (15) Although Bucklew faced what experts said could be a gruesome--if not cruel--death, his method-of-execution claim failed because he did not fulfill the Baze-Glossip test. (16)

    The procedural requirements of the Baze-Glossip test apply to any inmate seeking an alternative method of execution. (17) As seen in Bucklew, if an inmate does not meet the test's requirements, the court may dismiss the alternative-method request without questioning the constitutionality of the state's preferred method of execution. (18) This Note will examine the history and evolution of methods of execution in the United States and the impact this alternative method-of-execution request procedure has on Eighth Amendment jurisprudence. (19) This Note will demonstrate the stifling impact procedural changes--specifically those imposed in Bucklew--have on reviewing the constitutionality of the death penalty under the U.S. Constitution. (20)

  2. HISTORY

    1. The Death Penalty and the Eighth Amendment

      The death penalty has been a criminal punishment in the United States since the country's founding. (21) In 1790, Congress passed a law delineating the punishments for certain crimes against the United States, including the death penalty. (22) Congress enacted this law after it passed the Eighth Amendment, but before the Eighth Amendment was ratified by the states. (23) The Framers, as demonstrated through their legislative action, did not consider the death penalty to fall within the Eighth Amendment's prohibition against "cruel and unusual punishments" as the provision was then understood. (24)

      The Eighth Amendment is only sixteen words total, and four of those words--"cruel and unusual punishments"--are the standard under which courts analyze penal measures, including the death penalty. (25) To determine whether a punishment violates the Eighth Amendment, the Court looks to the meaning of cruel and unusual and whether the punishment is permitted by society's "evolving standards of decency." (26) The Supreme Court Justices, however, do not agree on a uniform definition of those terms, so there remains no determinative criterion for what constitutes a cruel and unusual punishment. (27)

      1. Defining Cruel in the Supreme Court

        When Congress ratified the Eighth Amendment, "cruel" was equated with "torturous" or "barbarous" and associated with tyrannical behavior. (28) Cruel punishments were those intended to inflict pain on the individual and were considered "inhuman" or even inciting pleasure in the punisher. (29) Although historic definitions inform an originalist's meaning of cruel and are considered when analyzing punishments, they are not controlling. (30) The cruel intent of the punisher is not necessary to find a punishment cruel under the Cruel and Unusual Punishment Clause. (31) A nonoriginalist would argue punishment today is cruel if it does not comport with "the dignity of man." (32) Consequently, there is no consistent legal standard for what constitutes a cruel punishment. (33)

      2. Defining Unusual in the Supreme Court

        The definition of unusual has not married well with the Court's "evolving standards of decency" analysis. (34) Because any new form of punishment would be considered unusual if not aligned with traditional U.S. punishments, the historic definition of unusual prevents evolution. (35) Historically, unusual has been understood to mean the punishment has become rare or fallen out of use. (36) Unusual can also be considered simply a departure from precedent, custom, or the intended application of written law. (37) The latter definition may comport with innovation if the Court first considers whether the punishment aligns with longstanding traditions prior to comparing the harshness of the punishment to current practices. (38)

    2. U.S. Death Penalty Fall and Rise Again

      1. Furman and the Fall of the Death Penalty

        As countries around the world began to explicitly abolish capital punishment, the United States followed the trend through the Supreme Court's holding in Furman v. Georgia (39) The United States, however, remained an outlier because the Court's holding was specific to the procedure applied in the cases before the Court, not the death penalty in general. (40) The impact of Furman was the temporary abolition of the death penalty across the United States. (41)

        In the five-to-four decision, the Supreme Court held that the death penalty as imposed in these cases was unconstitutional. (42) Because the holding focused on the statutes outlining the procedure of imposing the death penalty and not the death penalty itself, the Court left open the opportunity for the death penalty to return. (43) Furman was a reprieve for those on death row, but its focus on arbitrary and rare occurrences of the death penalty due to improper procedure created an avenue for states to enact death-sentence statutes that categorically avoided falling within the realm of cruel and unusual. (44) The temporary abolition provided by Furman ended only four years later. (45)

      2. Gregg and the Return of the Death Penalty

        Following the Furman decision, the State of Georgia changed its sentencing procedure for capital cases, and the Supreme Court was asked again to determine the constitutionality of the state's capital sentencing process. (46) Before the Court analyzed the statute in question, it held that the death penalty is not per se unconstitutional. (47) Utilizing the "evolving standards of decency" analysis against the petitioners, the Court pointed to the post-Furman statutes passed by several states and Congress as evidence that society did not reject the death penalty. (48) While Furman had abolished the death penalty temporarily, Gregg essentially reinstated the death penalty with merely procedural requirements that, according to the Court, would ensure the punishment was not imposed in a cruel or unusual fashion, and therefore could not be found unconstitutional. (49)

      3. Successful Eighth Amendment Attacks on Death Penalty

        Following the reinstatement of the death penalty in Gregg, the Supreme Court placed some limitations on applying the sentence. (50) First, the Supreme Court held that imposing the death penalty for the crime of rape is unconstitutional under the Eighth Amendment. (51) In 2002, the Court held that executing an individual with mental disabilities is unconstitutional under the Eighth Amendment, overturning a thirteen-year-old case. (52) The Court overturned another case in 2005, holding that the execution of individuals under the age of eighteen at the time of the commission of a capital crime is unconstitutional under the Eighth Amendment. (53) Each of these limitations were founded in the Court's Eighth Amendment jurisprudence that a punishment must be proportional to the crime and have a penological justification to be constitutional; the Court, however, did not consider the procedure through which capital punishment was imposed. (54) Notably, the Court has never limited the methods of execution. (55)

    3. Implementing Capital Punishment

      1. History of Methods of Execution

        The Supreme Court has never invalidated a state's chosen method of execution as an infliction of a cruel and unusual punishment. (56) The First Congress named hanging as the method of execution when a defendant was sentenced to death. (57) Set originally in the public square, hangings grew more private over time, which coincided with improving the technology of executions to minimize suffering. (58) Today, three states still have laws authorizing hanging as a method of execution in limited circumstances, though none of those states currently carry out the death...

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