By: Emily Gill
Volume IX – Issue I – Fall 2023
Introduction
The death penalty in the United States dates back to colonial times and places its origins in the British criminal justice system. The first recorded execution in the United States (or rather, the Thirteen Colonies), was the 1608 execution of Captain George Kendall for treason. [1] Since 1608, it is estimated that over 15,000 individuals have been executed in the United States for capital offenses. [2] As the criminal justice system in the United States has been increasingly criticized, so has the death penalty. Those who call for the abolition of the death penalty, call into question if it accomplishes its stated goals of retribution and deterrence, as well as if it is humane. While these questions are valid, proving these points wrong may not be the most successful way of abolishing the death penalty.
I. History of the Death Penalty in America
While the death penalty was first instituted during colonial times, it has changed greatly since then, specifically in regards to the demographic being primarily affected. At its first introduction to America, a vast majority of individuals executed were white. 3 Today, however, this is no longer the case, as despite black Americans making up only 13% of the US population, they receive the death penalty at a disproportionate rate of 41%. [4,5] This disproportionality has only become more egregious overtime—for example: in Louisiana where only 30% of the population is black, so is over 65% of their death row population. [6,7] These statistics can be traced to biases in courtrooms where a majority of cases approved to prosecute under the death penalty have minority defendants, and black defendants receive more death penalty sentences for the same or similar crimes as white defendants. [8,9] While the purpose of capital punishment has not necessarily changed since its creation, the populations being targeted have changed greatly.
Another major change of the death penalty since its conception is the crimes that are considered capital offenses. In the early 1600s, at the first instances of the death penalty, over 200 crimes were considered capital offenses. This included crimes that are still capital offenses, such as murder and treason, but also many other crimes that are no longer punishable by death, such as stealing a horse, counterfeiting, and arson. [10] As of today, at the federal level only 41 crimes are punishable by death. [11] At the state level, the crimes punishable by death are left up to the discretion of the states, but the general understanding is that crimes must “intentionally or knowingly [cause] the death of an individual.” [12] There are slightly differing circumstances between states; for example, treason and espionage are capital punishments in some states, but overwhelmingly, purposeful death is a mandatory factor. The cases Coker v. Georgia (1977) and Enmund v. Florida (1982) were significant in the forming of this framework, as they set up that it is unconstitutional under the Eighth Amendment to execute someone if the crime they committed would be disproportionate to this punishment. [13,14] In these cases, it was decided that crimes such as rape, and crimes where someone did not kill (nor did they intend to kill) did not warrant the death penalty.
The methods of the death penalty have also changed greatly over time. In the early years of the death penalty in the Colonies, the primary method of execution was hanging. This was the most utilized method up until the 1920s when electrocution became more widely practiced. [15] The electric chair is not widely used today, but is still authorized for use in the states of Alabama, Arkansas, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, and Tennessee. While hanging and electrocution were the most widely used methods until the introduction of the lethal injection, they were not the only methods utilized. In fact, the first execution in the United States was carried out by firing squad. This method is currently still authorized for use in Idaho, Mississippi, Oklahoma, South Carolina, and Utah. [16] Another less frequently used method are cyanide or hydrogen cyanide gas chambers, which are currently authorized for use in Alabama, Arizona, California, Florida, Mississippi, Missouri, Oklahoma, Tennessee, and Wyoming. This method has been rarely used in modern times, and most recently was used in 1999 in the state of Arizona. However, Arizona did refurbish their gas chamber in 2020 and was planning to execute someone this way in 2022 (which ultimately did not happen). [17] Alabama is currently working towards instating nitrogen hypoxia as an alternative to the lethal injection. While anyone in Alabama is yet to be executed with nitrogen gas, a date has now been scheduled to execute a man with this method. At this time, only two other states, Mississippi and Oklahoma, have authorized nitrogen hypoxia. The decline of alternative execution methods developed from the emergence of the lethal injection which was regarded as more humane and cost-effective.
The lethal injection is by far the most widely used method of execution today, but the components of it have greatly changed in many states since its first use in 1982. The first lethal injection, which took place in Texas, was a three-drug process that started with sodium thiopental (an anesthetic), and then pancuronium bromide (a muscle relaxant), and potassium chloride (which stops the heart). [18] Today, however, Texas uses only one drug; pentobarbital, a sedative. Other states still use a three drug method, many of which begin with sodium thiopental; others begin with midazolam, pentobarbital, or etomidate. The state of Nebraska, which is the only state to have ever used a four-drug method, currently utilizes diazepam, fentanyl citrate, cisatracurium besylate, and potassium chloride. [19] The primary reason that lethal injection began to be more widely used (as opposed to other methods) was its reduced cost, however this is no longer an adequate argument. Recently, sodium thiopental has become difficult to obtain as manufacturers refuse to distribute it for the purpose of execution. This has caused many states to switch to pentobarbital which is much more expensive, costing over $1000 per vial. [20] While the lethal injection may have been a cheaper alternative in 1982, it is not anymore.
Federal executions, while rare, do occur. In fact, they were only recently reinstated, after not taking place for seventeen years (2003-2020). Overtime federal executions have used a wide variety of methods including hanging, electrocution, and in a few cases, cyanide gas chambers. [21] However, as of today, they utilize the lethal injection; a one drug injection of pentobarbital sodium.
II. History of Constitutionality of the Death Penalty
The death penalty was constitutional up until 1972 when the Supreme Court case Furman v. Georgia ruled it unconstitutional under the Eighth Amendment. This case revolved around William Henry Furman, who burglarized a family home, and in the process, inadvertently killed a resident of this home, causing him to be convicted of murder and sentenced to death. Furman argued that this violated both his Eighth Amendment rights against cruel and unusual punishment, and his Fourteenth Amendment right to be protected from states making or enforcing laws that abridge rights. [22] While only two of the deciding justices (Justice William Brennan and Justice Thurgood Marshall) believed the death penalty to be unconstitutional overall, other justices believed that it was too arbitrary and that it unfairly targeted black citizens. [23] The Court decided in favor of Furman, and effectively outlawed the death penalty. However, this case was overturned only a few years later. Gregg v. Georgia was argued (and decided) in 1976 and surrounded Troy Leon Gregg, who was convicted of armed robbery and murder and subsequently sentenced to the death penalty. This case asked the same question, which was whether or not the death penalty was permissible under the Eighth and Fourteenth Amendments, and it was ultimately decided that it was. What caused the differences in these two cases were the crimes themselves; in Furman, his weapon was accidentally discharged leading to the death of the resident of the home, however, in Gregg the murder was committed intentionally. So, the Court decided that the death penalty was essentially only constitutional in certain circumstances, effectively overlooking the arbitrary nature that they cited in their decision only four years earlier. Since these two cases, the death penalty has remained constitutional federally, even as almost half of the states have ruled it unconstitutional or abolished it on the basis that it unfairly targets communities such as individuals with low socio-economic statuses and people of color. However, there have been cases since then that have narrowed the reach of the death penalty:
1. Enmund v. Florida (1982) which established that a crime must be proportionate to the death penalty for someone to receive the death penalty. [24] This had to do with the purpose of the death penalty, which is primarily deterrence, as it was decided that someone who did not intentionally commit a crime could be deterred.
2. Ford v. Wainwright (1986) which prohibited individuals with mental illnesses (or individuals who were “insane” as the Court stated) to be executed. [25] The Court cited English Common Law in their decision, which states that executing the “insane” is inhumane. An additional part of the Court’s reasoning came from the concurring opinion of Justice Lewis F. Powell, who stated that the Eighth Amendment prohibits the execution of someone who doesn’t have an understanding of the punishment they will be experiencing.
3. Atkins v. Virginia (2002) which prohibited individuals with intellectual disabilities from receiving the death penalty. [26] This is, again, due to the goals of the death penalty, retribution and deterrence, as it was argued that there could be no deterrence or retribution in the execution of an individual who is intellectually disabled.
4. Roper v. Simmons (2004) which recognized that minors or individuals who were minors at the time they committed their crime can not receive the death penalty. [27] It was decided that the execution of a minor violates the Eighth Amendment because it is a disproportionate punishment, and therefore cruel and unusual.
While currently at the federal level the death penalty is constitutional, the constitutionality of it differs greatly by state. As of today, five states have declared the death penalty unconstitutional, while 18 have abolished it for other reasons. Delaware is one state that has ruled the death penalty unconstitutional; however, not on the basis of the Eighth Amendment, but on the basis of the Sixth from the Supreme Court cases Ring v. Arizona (2002) and Hurst v. Florida (2016). These cases had to do with the “sentencing schemes” of their respective states, where jury decisions were not necessary to convict someone of the death penalty. [28,29] This violates the Sixth Amendment which guarantees the right to a criminal trial by jury. Hurst v. Florida (2016) involved both the Sixth and Eighth Amendments, and asked if Florida’s “sentencing scheme” violated either of these amendments, as juries weren’t required to determine if the defendant was mentally ill or intellectually disabled or required to unanimously sentence the defendant in death penalty cases. It was decided that this way of sentencing violated the Sixth Amendment. However, this did not abolish the death penalty in Florida, and rather abolished the specific system they were using. Other states such as Connecticut, Massachusetts, New York, and Vermont, have ruled the death penalty unconstitutional due to reasons such as being in violation of state constitutions. [30,31,32,33]
III. Constitutional Arguments Against the Death Penalty
While a primary argument against the death penalty is that execution itself constitutes cruel and unusual punishment, and therefore violates the Eighth Amendment, this is not the only constitutional argument against the death penalty.
This being said, the Eighth Amendment does seem to be the most applicable amendment when arguing for the unconstitutionality of the act itself, or the methods being used. One case where arguments were made about the act of killing in itself being a violation of the Eighth Amendment was Furman v. Georgia (1972), which did effectively abolish the death penalty in the United States. At least until it was turned over by Gregg v. Georgia (1976). Since the overturning of Furman, other cases have successfully expanded the idea that the act of killing can be unconstitutional in certain situations, such as in the event that someone has an intellectual disability (Atkins v. Virginia, 2002) a mental illness (Ford v. Wainwright, 1986), or was a minor when their crime was convicted (Roper v. Simmons, 2002). While overturning the death penalty by ruling it entirely constitutional would be the most direct way to accomplish this, it is also arguably the most difficult. The interpretation of what is cruel and unusual is very arbitrary, and with such a high percentage of Americans (64%) believing that the death penalty is moral when someone has committed a heinous crime, it would be very difficult to have a Supreme Court case that affirmed this. idea, especially with the current conservative nature of the court. [34] Another way to argue for the unconstitutionality of the death penalty based on the Eighth Amendment is to argue that the methods used are cruel and unusual. In the case Baze v. Rees (2008), it was argued that the three drug procedure that Kentucky used for lethal injection was cruel and unusual. [35] While it was decided that Kentucky’s method did not violate the Eighth Amendment, this case makes an important point that may be able to be replicated in other cases. Midazolam, which is now being used as the first drug out of three in many states, is being increasingly criticized due to its sedative (as opposed to anesthetic) properties. Additionally, there have been multiple botched executions since it started to be used only in 2013. [36] Aside from Midazolam, there are issues with Pentobarbital, which is used for one step procedures, as there have been cases of individuals crying out in pain. [37] The pain caused by execution is arguably cruel and unusual, so if this cannot be prevented then it is also arguable that the methods themselves violate the Eighth Amendment.
The unconstitutionality of the death penalty can also be argued through the fact that specific facets of sentencing practices violate the Sixth Amendment, like in the case Hurst v. Florida (2016). There are other states that have similar sentencing schemes to Florida’s where it was shown that they were not utilizing the judgment of a jury according to the guidelines of the Sixth Amendment, such as Alabama. [38] It is possible to argue for the unconstitutionality of the death penalty this way; however, it doesn’t necessarily mean that it will be abolished in a state, as that state may just do what Florida did in the wake of Hurst v. Florida and change their sentencing procedures to avoid it being abolished. A possibly more successful way to argue against the death penalty under the Sixth Amendment may be through the requirement of an “impartial jury.” Considering that for someone to serve on the jury of a case where the death penalty is involved they must be “death qualified,”—to be willing to give the death penalty—there is already inherent bias present. [39] In fact, due to this requirement, it essentially makes it impossible for an impartial jury to be present in the case of a trial involving the death penalty. So, due to the jury selection processes that are required by a trial with the death penalty, it is impossible for an impartial jury to be selected, and therefore in violation of the Sixth Amendment.
While there are many constitutional arguments against the death penalty, the main constitutional argument for it (other than simply stating it is not cruel and unusual) is part of the Fifth Amendment, where it is stated that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” [40] Due to this, it can be assumed that the founding fathers believed in the sanctity of the death penalty, as there were safeguards specifically put in place recognizing capital punishment. This argument takes a very “originalist” approach, as it argues that this should be interpreted in the context it was written rather than in the context of today. In today’s context maybe it is possible that due to problems with innocents being executed, and the racial disparities present, that it is cruel and unusual, nevermind the fact that it was accounted for in the Fifth Amendment.
Aside from the specific constitutional arguments that would abolish the death penalty, the other way it can be abolished is through bills of state governments. A majority of the states that have abolished the death penalty have done so through recognizing the problems with it, such as acknowledging that racial disparities exist; a greater population of black individuals are given the death penalty than white individuals for similar crimes. [41] Additionally, the dichotomy of what crimes can receive the death penalty is incredibly arbitrary, which further fuels these disparities. This method may be the most successful way to get states to abolish the death penalty, as it is more simple to demonstrate the relatively clear problems with the death penalty, rather than arguing for the philosophical reasons it may be unconstitutional. A large portion of Americans, even if they support the death penalty being utilized, do recognize and agree with its critiques. [42] This argument could just lead to a slightly different form of the death penalty, but it is much more complicated to reform the system of capital punishment rather than abolishing it in favor of life sentences without parole, which has been the solution of most states that have abolished the death penalty.
IV. Conclusion
It is naive to assume that it would not be incredibly difficult to abolish the death penalty in the United States. However, it is not necessarily impossible. During his campaign for the 2020 election, President Joe Biden stated he would abolish the federal death penalty (which at this point has not happened). As the 2024 presidential election is coming up, anti-death penalty advocates will most likely remind Biden of this unfulfilled promise, and considering Biden will be seeking an increase in approval, there is a slight chance that he may make changes in regards to the death penalty to try and win more votes. Considering the Biden Administration has taken more progressive criminal justice action, it is not completely out of the question that the death penalty could be abolished through executive power. Additionally, many Democratic politicians, as well as Democrats in general, are in favor of abolishing the death penalty. So, it is not terribly wrong to assume that more states may abolish the death penalty through state legislation, especially as so many states have not carried out executions in years. When another death penalty case does inevitably make it to the Supreme Court level, there are a wide variety of constitutional arguments that can be made in support of abolishing the death penalty. It may not be likely at this time for a Supreme Court case arguing against the death penalty to make its way up, especially considering the current conservative nature of the Supreme Court, but that doesn’t mean it will remain unlikely.
Endnotes
[1] “Early History of the Death Penalty,” Early History of the Death Penalty | Death Penalty Information Center, 2019, https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty.
[2] “Death Penalty 101,” Death Penalty 101 | American Civil Liberties Union, 2011, https://www.aclu.org/documents/death-penalty-101.
[3] Gabriele Gottlieb, “THEATER OF DEATH: CAPITAL PUNISHMENT IN EARLY AMERICA, 1750-1800 ” (dissertation, 2005).
[4] U.S. Census Bureau Quickfacts: United States, 2022, https://www.census.gov/quickfacts/fact/table/US/PST045222.
[5] “Death Row: Racial Demographics,” Racial Demographics | Death Penalty Information Center, 2017, https://deathpenaltyinfo.org/death-row/overview/demographics.
[6] “QuickFacts: Louisiana,” U.S. Census Bureau QuickFacts: Louisiana, 2022, https://www.census.gov/quickfacts/fact/table/LA,US/PST045222.
[7] “Death Row: Racial Demographics,” Racial Demographics | Death Penalty Information Center, 2017, https://deathpenaltyinfo.org/death-row/overview/demographics.
[8] “Race and the Death Penalty,” Race and the Death Penalty | American Civil Liberties Union, February 26, 2003, https://www.aclu.org/documents/race-and-death-penalty.
[9] Samuel R Gross, “David Baldus and the Legacy of McCleskey v. Kemp,” Iowa Law Review 97, no. 6 (2012): 1906–24.
[10] Laura E. Randa, Society’s Final Solution: A History and Discussion of the Death Penalty (Lanham, Md. u.a.: Univ. Press of America, 1997).
[11] “Federal Capital Offenses,” Federal Capital Offenses - Death Penalty - ProCon.org, September 14, 2023, https://deathpenalty.procon.org/federal-capital-offenses/.
[12] “TEXAS DEATH PENALTY LAW,” Introduction - Texas Death Penalty Law - Tarlton Law Library at Tarlton Law Library, 2010, https://tarlton.law.utexas.edu/texas-death-penalty.
[13] Coker v. Virginia (Supreme Court of the United States June 29, 1977).
[14] Enmund v. Florida (Supreme Court of the United States July 2, 1982).
[15] ProCon.org, “The ESPY List: US Executions 1608-2002,” The ESPY List: US Executions 1608-2002 - Death Penalty - ProCon.org, September 14, 2023, https://deathpenalty.procon.org/us-executions/#VI.
[16] “Methods of Execution,” Methods of Execution | Death Penalty Information Center, October 24, 2023, https://deathpenaltyinfo.org/executions/methods-of-execution.
[17] Jacques Billeaud, “Arizona Prisoner Won’t Be Executed in Gas Chamber,” Arizona prisoner won’t be executed in gas chamber | AP News, May 19, 2022, https://apnews.com/article/arizona-united-states-executions-phoenix-government-and-politics-4e4ff9d1e74f57bebeb 6caa2eac12ea9.
[18] “LETHAL INJECTION: The Medical Technology of Execution,” Amnesty.org, 1998, https://www.amnesty.org/en/wp-content/uploads/2021/06/act500011998en.pdf.
[19] “State-by-State Execution Protocols,” State-by-State Execution Protocols - Death Penalty Information Center, 2023, https://deathpenaltyinfo.org/executions/methods-of-execution/state-by-state-execution-protocols.
[20] “Arizona DoC Paid $1.5 Million for Execution Drugs While Facing a Budget Crisis,” Arizona DoC Paid $1.5 Million for Execution Drugs While Facing a Budget Crisis | Death Penalty Information Center, 2021, https://deathpenaltyinfo.org/news/arizona-doc-paid-1-5-million-for-execution-drugs-while-facing-a-budget-shortfall.
[21] “State-by-State Execution Protocols,” State-by-State Execution Protocols - Death Penalty Information Center, 2023, https://deathpenaltyinfo.org/executions/methods-of-execution/state-by-state-execution-protocols.
[22] U.S. Const. amend. XIV § I
[23] Furman v. Georgia (Supreme Court of the United States June 29, 1972).
[24] Enmund v. Florida (Supreme Court of the United States July 2, 1982).
[25] Ford v. Wainwright (Supreme Court of the United States June 26, 1986).
[26] Atkins v. Virginia (Supreme Court of the United States June 20, 2002).
[27] Roper v. Simmons (Supreme Court of the United States June 20, 2002).
[28] Ring v. Arizona (Supreme Court of the United States June 24, 2002).
[29] Hurst v. Florida (Supreme Court of the United States January 12, 2016).
[30] State v. Santiago (Supreme Court of Connecticut October 7, 2015).
[31] Commonwealth vs. Colon-Cruz (Supreme Judicial Court of Massachusetts 1984).
[32] People v. LaValle (New York Court of Appeals June 24, 2004).
[33] “Vermont Capital Punishment Laws - Findlaw,” Vermont Capital Punishment Laws, 2016, https://www.findlaw.com/state/vermont-law/vermont-capital-punishment-laws.html.
[34] “Most Americans Favor the Death Penalty Despite Concerns About Its Administration,” Most Americans Favor the Death Penalty Despite Concerns About Its Administration | Pew Research Center, June 2, 2021, https://www.pewresearch.org/politics/2021/06/02/most-americans-favor-the-death-penalty-despite-concerns-about-it s-administration/.
[35] Baze v. Rees (Supreme Court of the United States April 16, 2008).
[36] “Inventor of Midazolam Opposes Its Use in Executions,” Inventor of Midazolam Opposes Its Use in Executions | Death Penalty Information Center, 2017, https://deathpenaltyinfo.org/news/inventor-of-midazolam-opposes-its-use-in-executions.
[37] Josiah Bates, “Why the Justice Department’s Plan to Use a Single Drug for Lethal Injections Is Controversial,” DOJ to Use Pentobarbital in Executions. Here’s Why That’s Controversial | Time, July 29, 2019, https://time.com/5636513/pentobarbital-executions-justice-department/.
[38] Carolyn Schorr, “The Effect of Hurst v. Florida on Judicial Override in Alabama,” University of Maryland Law Journal of Race, Religion, Gender & Class 18, no. 2 (2018): 390-404.
[39] Alice Chao et al., “Death-Qualified Juries and the Flowers Trials,” Death-Qualified juries, 2019, https://courses2.cit.cornell.edu/sociallaw/FlowersCase/deathqualifiedjuries.html#:~:text=A%20%E2%80%9Cdeath%2Dqualified%20jury%E2%80%9D,all%20cases%20of%20capital%20murder.
[40] U.S. Constitution Amendment V
[41] “Race and the Death Penalty,” Race and the Death Penalty | American Civil Liberties Union, February 26, 2003, https://www.aclu.org/documents/race-and-death-penalty.
[42] “Most Americans Favor the Death Penalty Despite Concerns About Its Administration,” Most Americans Favor the Death Penalty Despite Concerns About Its Administration | Pew Research Center, June 2, 2021, https://www.pewresearch.org/politics/2021/06/02/most-americans-favor-the-death-penalty-despite-concerns-about-its-administration/.