Does the death penalty constitute "cruel and unusual" punishment?
2014 has been an extraordinary year for America’s death penalty. From the near miss abolition in New Hampshire to a California judge declaring the state’s death penalty unconstitutional; from a series of high profile botched executions to the April publication of a study estimating that 340 people may have been put to death unjustly since 1973 (a study, tellingly followed by the exoneration of two death row inmates)—capital punishment has been very much in the headlines. President Obama has even acknowledged that “In the application of the death penalty in this country, we have seen significant problems—racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence. And all these, I think, do raise significant questions about how the death penalty is being applied.”
Comments like those of the president, headlines like the ones we’ve seen this year, indicate the turmoil that has come to surround the death penalty. Of late it seems the conversation about capital punishment has taken a sharply different direction. More and more Americans seem to be asking not what the death penalty does for us but rather what the death penalty is doing to us and to some of our most cherished values.
Is there a method of execution that is safe, reliable, and humane?
Can we continue to use the death penalty and not run the risk of executing the innocent? Can we administer capital punishment in a way that insures against arbitrariness and discrimination? Is there a method of execution that is safe, reliable, and humane? These questions implicate America’s constitutional commitments to due process of law, equal protection, and the avoidance of cruel punishment.
While the Supreme Court is not yet poised to halt capital punishment, 2014’s developments have significantly advanced the abolitionist agenda. Moreover, efforts by the death penalty’s proponents to respond to those developments have backfired. For example, state laws mandating secrecy about drug protocols and the sources of the drugs used in lethal injection has spawned a series of suits challenging such laws. Moreover, Ninth Circuit Judge Alex Kozinski’s statement that executions are “brutal, savage events, and nothing the state tries to do can mask that reality” was a surprisingly candid admission for an ardent defender of capital punishment, echoing as it did the things abolitionists have long contended to be true.
As we look out over the horizon, what does the future of capital punishment look like? First, in addition to the 18 states that have already abolished capital punishment, eight states—Colorado, Kansas, Montana, Nebraska, New Hampshire, Oregon, Pennsylvania, and Wyoming—have not executed anyone in more than a decade and seem unlikely to do so any time soon. And, it has been several years since anyone was executed in Nevada, North Carolina, and California. Second, eight states have not imposed a new death sentence in the last three years. Third, formal repeal of the death penalty seems to be a realistic possibility in Delaware, New Hampshire, Kansas, Nebraska, Montana, Washington, Oregon, and California. In short it is not too much to expect that, in the near future, a majority of American states will have removed capital punishment from their statutes while others—while retaining it—do not execute anyone.
As a result, the death penalty’s regional character will be increasingly apparent. Indeed it is safe to say even now that America does not have a death penalty. Rather capital punishment is the preserve of a handful of border and southern states—Texas, Virginia, Oklahoma, Missouri, Florida—which hang onto it, just as more than a century ago they held onto lynch justice.
In this situation both the death penalty’s political and constitutional posture will be precarious. Politically, the more that we live without capital punishment, the more likely we are to realize that the world will not fall apart without it. Constitutionally, the stage is being set for the Supreme Court to view capital punishment in light of the “evolving standards of decency that mark the progress of a maturing society.” Just as it did in Atkins v. Virginia and Roper v. Simmons, in finding the death penalty unconstitutional as applied to mentally retarded persons and juveniles, the Court may some day in the not too distant future identify an emerging national consensus sufficient to hold the death penalty unconstitutional on Eighth Amendment grounds.
As in many things much depends on Justice Anthony Kennedy. And, it is by no means clear that judicial abolition on constitutional grounds would not produce a substantial political backlash and renewed vigor in proponents of capital punishment. But, for now, little by little, state by state, the tide seems to be turning, or to have turned, against America’s death penalty.