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The Death Penalty as Cruel and Unusual Punishment 

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    Recall the theme of many dystopian novels: a corrupt government dehumanizes its citizens until a hero mobilizes to rescue the abused. To some readers, such novels are mere works of fiction inapplicable to the United States legal system. To others, slight dystopian trends underlie prominent legislative behaviors. Within a nation that prides itself for honoring a constitution meant to value rights claims, state sanctioned executions persist within America’s renowned punitive legal system under the legally and socially accepted use of capital punishment. The Supreme Court announced four principles to determine violations of the Eighth Amendment, while simultaneously ending state executions in the infamous case, Furman v. Georgia. However, Gregg v. George declared the death penalty a constitutionally permissible means of punishment “in light of evolving standards of decency” just four years later.

    Although the 1976 decision indeed reintroduced the death penalty, I will use the framework established in Furman v. Georgia to argue the unconstitutionality of capital punishment. Under the Eighth Amendment, conditions on death row and the recurrence of botched executions coupled with frequent grants of clemency violate the dignity of life. Meanwhile, racially and jurisdictionally disproportionate sentencing through the discretion of legislators and jurists amount to arbitrary punishment. Finally, I will examine how the death penalty is rejected throughout society as an unnecessary punishment in its failure to effectively deter and retribute criminals.

    The Dignity of Life

    The Supreme Court consistently cites the dignity of human life as an essential element underlying the Constitution. As such, Furman v. Georgia appropriately asks whether the punishment “violates human dignity” as the first principle to consider the constitutionality of capital punishment. The general definition of dignity is “the inherent of worth of life,” in which we have “freedom from those harms that make us the object of another’s will” (Barry 392). As Justice Brennan famously remarks in Furman v. Georgia, inmates “do not lose the right to have rights” upon arrival to death row. One can see how upholding human dignity demands that individuals- including prisoners- are granted freedom from certain harms, embodied as rights. Goldberg that prisoners are “degraded below the minimal status of citizen,” which severs the ties of society to the individual. Such ties necessary in order for a society to uphold human dignity (Goldberg 1788). The dignity of life clearly demands rights for prisoners.

    Although the dignity of human life is essential to the Constitution, prisoners are subject to “decades of especially severe, dehumanizing conditions of confinement” (Barry 402). While describing the mental deterioration of a client, life on death row was illustrated as “the most dehumanizing and spiritually devastating form of existence that our society as chosen to inflict on its prisoners” (Canan 62). Prisoners are locked in cells the size of a small bathroom, bored until they are allowed recreation time to pace in chains (Canan). Even innocent prisoners can be deprived of basic human rights, either before or after execution. After decades of traumatizing imprisonment, or perhaps even after execution, an astonishing number of defendants are found to be innocent. Since 1973, 156 people have been exonerated from death row. In 2015 alone, six people were exonerated (Barry).

    Meanwhile, the dignity of life is further violated by unprofessionally administered lethal injections that often go awry. America’s most outspoken advocate, Kent Scheidegger, echoes the arguments of many death penalty proponents. While botched executions are “uncomfortable” to witness, he argues, murderers do not have the right to a painless death. “It is a punishment after all,” he says (Caplan). Although the Supreme Court held that the risk of botched executions is not sufficiently significant, Justice Sotomayor referred to botched midazolam executions as “the chemical equivalent of being burned at the stake” (Barry 402). A shocking seven percent of lethal injections as a mode of execution go awry, causing unimaginable pain to the defendant (Canan). This percentage of painful, unprofessionally administered lethal injections is far too high to even argue that defendant’s dignity of life is not violated by the hands of the state.

    Arbitrary Sentencing

    The second principle to determine whether the death penalty is unconstitutional is whether the punishment is arbitrary. In fact, Justices Douglas, White, and Stewart wrote: “the decision to sentence some to death and some to life was arbitrary and certainly or probably racially discriminatory” (Furman v. Georgia). Taking into consideration the inherently racist norms of the Southern United States, it is not surprising that sentences are arbitrarily applied in a racial manner. “Executions overwhelmingly cluster among those states where, at least as a historical matter, the dignity of black lives has not mattered. The thirteen states that comprised the Confederacy have carried out more than 75% of the nation’s executions in the last four decades.” (Barry 420). Arthur Goldberg points out that as long as class and racial prejudice is prevalent,” invoking the death penalty will be discriminatory (1794). Such racial prejudice is found all over America. For example, Professor Katherine Beckett’s research found that “jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case” (Death Penalty Information Center).

    Kent Scheidegger, a popular advocate for the death penalty, offers a theory to explain the fact that individuals who murder white victims have a higher chance of a death penalty sentence. He argues that “black people tend to oppose the capital punishment and therefore do not use it in their own communities” (Caplan). Scheidegger’s theory fails to address the historical prevalence of racial prejudice in the United States, while ignoring the fact that a widely disproportionate percentage of executions occur in Southern states. Furthermore, Arthur Goldberg argues that a punishment is additionally cruel when “an individual is singled out because of an accident of geography for unusually severe treatment (1789).

    Societal Rejection

    The third principle outlined in Furman v. Georgia states that, in order to be found unconstitutional, capital punishment must be rejected throughout society. In fact, the death penalty is rejected both domestically and internationally. At home, twenty-eight states have abolished capital punishment. Of the thirty states who permit capital punishment, only twenty-five have executed an inmate since 1997. More recently, only nineteen states have used capital punishment since 2006 (Barry). Executions do not even occur systematically throughout regions. Kevin Barry states that, of the thirty-five executions that took place in 2014, ninety percent occurred within the same four states. These statistics imply that in the occasion that the death penalty is invoked, sentences are regionally disproportionate.

    While ninety-six countries have abolished capital punishment, America finds itself ranking fifth for the most executions in the world, accompanied by countries like China, Iran, and Iraq (Cornell Center on the Death Penalty Worldwide). Accompanied by endorsements from intergovernmental organizations like the European Union, a majority of the world has ratified human rights treaties intent on abolishing the death penalty (Babcock). One can see how such support marks a nearly international shift from the death penalty as a meaningful penological tool to a legitimate human rights issue. In the past, the Supreme Court has cited international law within opinions (Babcock). Kevin Barry takes note of Justice Kennedy’s opinion in Lawrence v. Texas, stating: “When our precedent has thus weakened, criticism from other sources is of greater significance” (Barry 420). This statement highlights the relevance of international law in a domestic context.


    Finally, Furman v. Georgia requires capital punishment to be proven unnecessary. Proponents for the death penalty frequently argue that punishment is necessary as a means to deter violent crime. To some, it is reasonable to imagine that states with high execution rates would notice a decline in violent crime since most murderers do not explicitly wish to die. However, slow conviction processes and inconsistent sentencing hinder the effectiveness of capital punishment in deterring crime. One federal district judge commented on the inefficacy of the death penalty, saying that prisoners receive: “life in prison, with the remote possibility of death” (Barry 425). Furthermore, years of trial can produce a defendant with a brand new outlook on life and sincere remorse for past deeds. Jack Gibbs points out that by the time of execution, the defendant has often grown so much in character that he has changed. In addition, capital punishment is applied so inconsistently that it fails to deter crime. Kevin Barry argues that “a punishment that is inherently arbitrary- or worse, discriminatory, does not deter offenders, especially white offenders” (425). Clearly, the process of invoking the death penalty refrains the punishment from achieving its deterrent purpose.

    “An eye for an eye” is a typical slogan invoked by advocates for the death penalty. Retribution, they often argue, is the need for a criminal to pay their debt to society. “The effectiveness haunts all penal doctrines except the retributive. If the business of criminal justice is to punish the guilty because, and only because, they deserve it, jurists or legislators need not be concerned with problematical consequences of punishments” (Gibbs 291). Overall, the argument goes that retribution is necessary in the name of justice. However, “an eye for an eye” despises the dignity of life, rather than promoting the equality of life (Barry). Rather than seeking to rehabilitate perpetrators of violent crime, or even to provide restoration to families of victims, the concept of retribution eliminates yet another life in the name of retribution.

    Additionally, society pays enormous taxes to maintain capital punishment, persisting that deterrence and retribution make executions necessary. Death penalty trials are so expensive, that it is cheaper to sentence someone to life without parole. Death penalty trials in Kansas, for example, cost a minimum $400,000 per case. When the case does not involve the death penalty, cases cost a mere $100,000. As for Florida, the enforcement of the death penalty costs “$51 million a year over what it would cost to punish all first degree murderers with life in prison without parole.” Taking into consideration Florida’s forty-four executions since 1976, such statistics total up to $24 million per execution (Death Penalty Information Center). A punishment cannot be deemed necessary if it fails to deter criminals, if the doctrine of retribution is faulty, or if society pays enormous sums of money simply to keep state sanctioned executions alive.

    The Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishment.” After examining the ways in which inhumane prison conditions and botched executions deny an individual their right to human dignity, and the ways in which sentencing is arbitrarily applied and rejected throughout society, one can come to the conclusion that capital punishment is cruel to minorities, to those who have been failed in other ways by the state, to families reliving trauma with no sense of restoration, and to taxpayers. Capital punishment is unusual to a majority of the international community, and to select regions of the United States. Therefore, capital punishment should be ruled unconstitutional under the Eighth Amendment. It is indeed unfortunate that the most powerful, influential, and seemingly progressive nation in the world insists on promoting capital punishment based on faulty values claiming retribution and deterrence.

    Works Cited

    1. Babcock, Sandra. “The Global Debate on the Death Penalty.” Human Rights, vol. 34, no. 2, 2007, pp. 17–20.
    2. Barry, Kevin. “The Death Penalty & the Dignity Clauses.” Iowa Law Review. 2017. Vol. 102:383. pp 383-420.
    3. Canan, Russell F. “Burning at the Wire: The Execution of John Evans.” Facing the Death Penalty: Essays on a Cruel and Unusual Punishment, edited by Michael L. Radelet, Temple University Press, 1989, pp. 60–80.
    4. Caplan- Bricker, Nora. “Mr. Death Penalty.” The Atlantic. September 12, 2014.
    5. “Cornell Center on the Death Penalty Worldwide.” Cornell Law.
    6. “Death Penalty Information Center: Facts about the Death Penalty.” Updated: December 7, 2016.
    8. Furman v. Georgia. 408 U.S. Supreme Court 238. 1972. Legal Information Institute.
    9. Gibbs, Jack P. “The Death Penalty, Retribution and Penal Policy.” The Journal of Criminal Law and Criminology (1973-), vol. 69, no. 3, 1978, pp. 291–299.
    10. Goldberg, Arthur J., and Alan M. Dershowitz. “Declaring the Death Penalty Unconstitutional.” Harvard Law Review, vol. 83, no. 8, 1970, pp. 1773–1819.
    11. Gregg v. Georgia. 428 U.S. Supreme Court 153. 1976. Legal Information Institute.

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