Nothing Less Than the Dignity of Man: the Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution

• Publication year: 2021

NOTHING LESS THAN THE DIGNITY OF MAN: THE EIGHTH AMENDMENT AND STATE EFFORTS TO REINSTITUTE TRADITIONAL METHODS OF EXECUTION

James C. Feldman

Abstract: While lethal injection is the predominant method of executing death row inmates in America, European export bans and pharmaceutical manufacturers' refusal to supply execution drugs has impeded the ability of states' departments of corrections to obtain the drugs used for lethal injections. Facing a drug shortage, several death penalty states have considered legislation to reinstate the use of electric chairs, firing squads, and gas chambers. Efforts to restore traditional methods of capital punishment raise questions about whether such methods still comply with the Eighth Amendment's prohibition against cruel and unusual punishments. The Supreme Court has observed that the Eighth Amendment is not static, but draws its meaning from society's "evolving standards of decency." To assess these evolving standards, the Court previously has looked to state laws to determine if a national consensus exists with respect to who is eligible for capital punishment and by what means states carry out death sentences. States have moved away from traditional methods of capital punishment. This trend suggests the traditional methods of capital punishment have fallen out of favor and can no longer withstand Eighth Amendment scrutiny.

INTRODUCTION

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path [lethal injection] and return to more primitive- and foolproof-methods of execution . . . . [I]f we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.(fn1) - Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit

Since the United States Supreme Court lifted the moratorium on capital punishment in 1976,(fn2) lethal injection has been the predominant method of executing death row inmates in the United States.(fn3) In recent years, an export ban by the European Union has made it increasingly difficult for United States prisons to procure the drugs typically used in lethal injections.(fn4) The unavailability of lethal injection drugs has led some states to consider legislative proposals to reinstitute traditional methods of execution, including electrocution,(fn5) firing squad,(fn6) and lethal gas.(fn7)

The efforts of these states to reinstitute traditional methods of capital punishment raise the question of whether older methods of execution still comply with the Eighth Amendment's prohibition on cruel and unusual punishments.(fn8) The Supreme Court has not considered the constitutionality of certain traditional methods of capital punishment in well over a hundred years.(fn9) Given the progress in science, medicine, and contemporary notions of morality and punishment, can execution methods once deemed acceptable still pass constitutional muster?

This Comment argues that Supreme Court jurisprudence, particularly with respect to the Eighth Amendment's "evolving standards of decency,"(fn10) can be used to analyze the constitutionality of the traditional methods of capital punishment. The Court has previously looked to the laws of the states to determine if a consensus exists as to which offenders are eligible for capital punishment.(fn11) Looking again to the laws of the states, this Comment argues that the states' shift away from the use of electric chairs, gallows, gas chambers, and firing squads represents a broadening consensus against traditional methods of execution. This broadening consensus suggests that traditional methods of execution now violate the Eighth Amendment's prohibition on cruel and unusual punishments.

Part I of this Comment examines the historical background and evolution of capital punishment in the United States. Part II surveys the common methods used to execute capital offenders prior to lethal injection. Part III considers the lethal injection drug shortages, which have led to proposals to reinstate traditional methods of capital punishment in several states. Part IV analyzes the constitutionality of traditional methods of execution against the framework of the Supreme Court's Eighth Amendment jurisprudence. Part V argues that states' efforts to revert to traditional methods of capital punishment do not meet the "evolving standards of decency" used by the Court to analyze Eighth Amendment issues.

I. THE EVOLUTION OF CAPITAL PUNISHMENT IN AMERICA

A. Capital Punishment in the Colonies

The English colonists brought capital punishment with them when they immigrated to America.(fn12) In the pre-incarceration era of colonial America, capital punishment was the "equivalent of prison today-the standard punishment for a wide range of serious crimes."(fn13) American capital punishment drew from England's "Bloody Code,"(fn14) with colonies imposing capital punishment for a number of crimes, including murder, rape, manslaughter, robbery, burglary, theft, counterfeiting, and arson.(fn15) Some colonies also enforced capital punishment for crimes like blasphemy, idolatry, adultery, witchcraft, and sodomy.(fn16) Capital punishment was widely accepted in the colonies, not only for its deterrent and retributive effects, but also for its perceived ability to facilitate repentance in criminals.(fn17)

In the late eighteenth century some "criminals were occasionally pressed to death, drawn and quartered, and burned at the stake."(fn18) Hanging, however, was the most widely accepted method of executing criminals at America's founding,(fn19) and remained the predominant method of execution through the end of the nineteenth century.(fn20)

Capital punishment in America has changed dramatically since colonial times.(fn21) In the late eighteenth century, prison emerged as a means of punishment for those convicted of crimes.(fn22) While states incarcerated criminals for less serious crimes, states still frequently imposed death sentences.(fn23) As America's system of criminal justice evolved, so did the methods of carrying out capital punishment.

B. The Eighth Amendment's Prohibition on Cruel and Unusual Punishments

The Eighth Amendment of the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."(fn24) The United States Supreme Court occasionally has considered whether the existence of the death penalty or the methods by which it is carried out violate this amendment.(fn25) Although the Court has placed some substantive limits on who is eligible for the death penalty,(fn26) except for a brief period in the 1970s,(fn27) the Court has permitted executions to continue despite the trend away from capital punishment in other western democracies.(fn28)

The Supreme Court has identified retribution and deterrence as the primary social purposes of the death penalty.(fn29) The Court has declined to hold that the death penalty is a per se violation of the Eighth Amendment, noting "the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous,-something more than the mere extinguishment of life."(fn30) Over time, the Court has reiterated this view, noting "[w]hatever the arguments may be against capital punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."(fn31) Despite capital punishment's acceptance, the Court on occasion has revisited the propriety of the death penalty.

C.Furman v. Georgia: A Short-Lived Moratorium on Capital Punishment

Concern over racial disparity in the imposition of death sentences led to a brief moratorium on executions in America.(fn32) In 1971, at the urging of the National Association for the Advancement of Colored People, the Court agreed to hear the consolidated appeals of William Furman, Lucious Jackson, and Elmer Branch in Furman v. Georgia.(fn33) All three were African American men on death row. A jury convicted Furman of killing a white homeowner during a burglary, while Jackson and Branch were convicted separately of raping white women.(fn34) By a five-to-four vote, the Court issued a six-sentence decision, holding, "the imposition and carrying out of the death penalty in these cases constitute[s] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."(fn35) Each Supreme Court Justice issued a separate opinion articulating his reasoning.(fn36) Several justices expressed concern over the seemingly discriminatory and arbitrary nature by which states imposed death sentences.(fn37) The decision effec tively vacated all death sentences pending in the United States at the time the Court decided Furman and replaced them with life imprisonment.(fn38) While death penalty opponents heralded Furman as a major achievement, the moratorium on capital punishment was short lived.

D.Gregg v. Georgia: Reinstating Capital Punishment

The public was quick to condemn the Furman decision and the Court soon ended the moratorium on capital punishment when it decided Gregg v. Georgia.(fn39) The petitioner in Gregg was a hitchhiker convicted of robbing and murdering the two men who gave him a ride.(fn40) Gregg was sentenced to death under Georgia's...