Should the Supreme Court Abolish the Death Penalty?

The current state of Capital Punishment in the US

Public opinion about the criminal justice system in the US, like many things in our country, has become staunchly polarized, and now more than ever, it seems an uncrossable gulf has grown in its midst. It can be seen in US politics and many other governmental bodies. The US criminal justice system’s practices and failures have also become exceedingly more transparent and therefore vulnerable to intense scrutiny. Despite retractors and the fact it is one of the few developed countries to retain the death penalty, the US continues to punish those accused of the most heinous of crimes with the ultimate punishment. Ten prisoners have been executed so far this year.

Among the aspects which swirl amongst the abolitionist debate are the mounting failures the practice succumbs to in its administration. A headline this year read “Oklahoma death row inmate convulsed, vomited during lethal injection, witness says, as state resumes executions.” The narrative was appalling.

“The medical team wiped the vomit as Grant, 60, continued breathing, convulsing and regurgitating until he was declared unconscious, at least two journalists present Thursday at the Oklahoma State Penitentiary in McAlester said. Two other drugs were administered and he was declared dead at 4:21 p.m., about 12 minutes after the execution began”(Peiser & Armario, pg, 3.)

John Marrion Grant was put to death with a lethal three-drug cocktail that has repeatedly been used in botched executions in Oklahoma. The last time it had been used the formula in question was no better.

“In 2014, Clayton Lockett grimaced and writhed during his lethal injection after an issue with the vein used to administer the drugs. He had a heart attack and officials halted the process, but he died 43 minutes after the execution began”(Peiser & Armario, pg. 3.)

And this, fifty-some years after the Supreme Court had called the practice into question for its relationship to the prohibition of the “cruel or unusual punishment” clause in the US Constitution.

Nearly a year ago, the big death penalty headline read: “Donald Trump is on a killing spree. He is turning the anger and resentment which burnishes his brand into a virtually unprecedented string of federal executions”(Serat, pg, 1.) Even if the article were to overstate the facts, perhaps a statement of disdain by Supreme Court Justice Sonia Sotomayor may suffice:

"To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades"(Serat, 2.)

Doubts as to whether “the government's protocol risks extreme pain and needless suffering... -- were not frivolous.” Supreme Court justice Steven Beyer called “for a reconsideration of the constitutionality of the death penalty itself”(Serat, pg. 3.)

What was true in 1972 at the suspension of the use of the death penalty is true today. And what has become even more apparent are the possibilities for human error and the unforeseen societal impact a practice like this can have. I would have to join Justice Breyer in appealing for a “reconsideration” indeed. It is time for the Supreme Court to reinvestigate the merits of such a practice. In the course of doing so, it is my belief that a sound conclusion will become increasingly apparent. As a member of Amnesty International, I propose that the Supreme Court of the United States of America Should abolish the death penalty once and for all.

Literature Review

Introduction

In researching whether or not the Supreme Court should abolish the death penalty, it is easy to get inundated with the large spectrum of perspectives on the matter and the vast material written on the subject. This literature review will focus on several significant patterns or themes as slices into the larger question and tries to understand the underlying dynamics of the issue. A balance of objective, statistical and subjective treatment of the analysis, as well as equal attention paid to the opposing views, is attempted but not altogether successful.

Capital Punishment, or the Death Penalty, as it is also known, is the execution of an offender who was sentenced to death after a conviction of a criminal offense in a court of law(Britannica, 2021). It has been enacted in multiform methods for longer than documented history and it has been commonplace in western civilization for nearly three thousand years. Serious abolitionist challenges to the practice of judicial executions have been fairly recent, beginning in Italy, France, and England around two hundred years ago(Debating the Death Penalty, 2005.) Since then, Capital Punishment has been an issue of great debate around the world and quite divisively, in the US.

According to Amnesty International, 16 countries had abolished the death penalty for all convictions by 1977(Moving Away from the Death Penalty, 2015.) Since then, there has been a global trend toward the abolition of Capital Punishment. Amnesty International recorded a decrease in executions of 26% from 657 recorded in 2019 to 483 executions in 18 countries in 2020. This is the lowest number of executions recorded in the past ten years. For 12 years, the US has been the only country to carry out the death penalty in the Americas(USAFacts, 2021.) The number of executions in the US has fallen most dramatically from 98 in 1999 to 22 in 2019. The death penalty is still in use in 28 states, although in California, Pennsylvania, and Oregon moratoriums on its use are currently stalling executions(USAfacts, 2021.) In 2020, 17 people were executed in the U.S., 10 by the federal government. “It was the first time more prisoners were executed by the federal government than by all of the states combined(USAFacts, pg. 1.)”

Polling

Public opinion polling has shown a compelling amount of change in the way Americans view Capital Punishment. 1966 saw a more significant amount of Americans against it than for it. After that, support for Capital Punishment rose until the 1990s, when support began to wain and this trend continues today. This may be due in large part to an increased awareness of the wrongfully convicted as well as a strong consensus that there exists racial and fairness disparities. Gallop has gathered that 56% of U.S. adults think Black people are more likely to be sentenced to death for committing similar crimes to white defendants. In the 2020 Gallup poll on Americans’ views of the death penalty, “support for capital punishment was at its lowest in 48 years” and opposition was higher than at any time since 1966(Gallup, pg.2.) Gallup also reports that support for the death penalty has fallen across all age groups, races, and ethnicities in the last decade. Still, many support executing those who are guilty of heinous crimes. A survey done in April found 60% of U.S. adults strongly or somewhat agree with the death penalty for convicted murderers(Pew Research, 2021). 64% find moral justification in capital punishment for crimes like murder(Pew research, 2021.) Pew Research has also found 90% of those who support Capital Punishment find moral justification while 25% in opposition find it morally justified(Pew research, 2021.)

Overview of the Law in the US

“The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out”(Legal Information Institute, pg. 3.) Congress and the various state legislatures may prescribe capital punishment, for what are called capital offenses. The Supreme Court has found in the analysis and interpretation of the Eighth Amendment that courts consider “evolving standards of decency to determine if a particular punishment warrants a cruel or unusual punishment”(Legal Information Institute, pg. 4.) When considering “evolving standards of decency,” courts make independent evaluations of objective factors that “show a change in community standards” or “whether the statute in question is reasonable”(Legal Information Institute, pg. 5.)

Recent History of the Death Penalty

Capital Punishment was initially banned in 1972 ( Furman v. Georgia, 408 U.S. 238,) “the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment.” Their reasoning at that time was that “the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities.” Capital punishment was reinstated in 1976(Gregg v. Georgia, 428 U.S. 153), “The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence.” In 1977, the court found that “a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishments(Coker v. Georgia, 433 U.S. 584).” In Kansas v. Marsh, 548 U.S. 163 (2006) it was ruled that “states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing.” The method of Execution a legislature may prescribe was ruled to “not inflict unnecessary or wanton pain upon the criminal... State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution.” In 2008, “the Supreme Court held that lethal injection does not constitute a cruel and unusual punishment”(Legal Information Institute, pg. 5.) ​​In Atkins v. Virginia, 536 U.S. 304 (2002), it was determined that “executing mentally retarded criminals violates the ban on ‘cruel and unusual punishments because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe”(Legal Information Institute, pg.6.)

Advocates for Capital Punishment focus on the retributive, deterrence, and incapacitation purposes of capital punishment. For the sake of brevity, and the lack of recent supporting literature on incapacitation I will focus on two of them: retributive and deterrence.

Retribution

Retribution is a common argument for Capital Punishment advocates. In his article, Why the Death Penalty Is Morally Permissible, Pojman says that “Intentionally taking the life of an innocent human being is so evil that absent mitigating circumstances, the perpetrator forfeits his own right to life. He or she deserves to die”(Debating the death penalty, pg. 42.) At base, it is the belief that those who commit the worst of crimes should lose their fundamental right to live. In Pojman’s analysis, those found guilty must be “punished proportionately to the severity of their crime(Pojman,1997.) ” Similarly, Hicks in The Only Argument for Capital Punishment in Principle-A Frank Appraisal, concludes that “incremental severity is logical for severe offenses” and “Therefore the gravity of the punishment should be proportionate to the gravity of the offense”(The Only Argument for Capital Punishment in Principle-A Frank Appraisal, pg. 36.)

Much opinion and philosophy have been written on the retributive aspects of Capital Punishment, but little has been seriously debated in the courts. In the article “How Justice System Officials View Convictions,” by Smith, Zalman, and Kiger, the authors make a compelling case for why the death penalty violates the fundamental right to life:

“For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment. But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process. The legal literature has followed suit, scarcely addressing the issue”(Smith, Zalman, & Kiger, A., pg. 87.)

Much needs to be done in the research of this and its opposing angle.

Deterrence

“According to the Gallup poll, 63% of Americans questioned thought the death penalty is not a deterrent for potential criminals”(USAFacts, pg. 2.) The question of “deterrence,” has continued to lie at the center of the Capital Punishment debate for some time. Deterrence in this context means whether the execution of a murderer plays a part in the discouragement of future potential murderers. “A necessary prerequisite for deterrence is that potential criminals be able to weigh the advantages and disadvantages of their actions before committing a crime(Melusky & Pesto, pg. 67.)” Haag, in his book The Death Penalty: A Debate (1998), argues “the state must teach that killing anyone deliberately, for whatever reason, is needless and wrong,” insists “the death penalty stops other criminals from committing grave crimes,” yet he complains that there is no statistic which proves this conclusively. These are the most visible contending viewpoints in favor of the death penalty, but little research can effectively conclude its utility.

Sellin conducted the most famous studies on deterrence. By comparing homicide rates in contiguous states with and without the death penalty from 1920 through 1963, he found a recurring homicide rate of 3.5 per 100,000 population(The death penalty: A report for the Model penal code project of the American Law Institute, pg. 8) “This finding suggests that the death penalty had neither reduced the homicide rates nor had its absence increased homicides in Michigan”(Melusky & Pesto, pg. 56.) Recent studies conducted by Radelet, Marquardt, Bailey and Bowers “look at the homicide rates before and after executions” to see if there were any changes before or after as a result of deterrence, but they “consistently find no deterrent effect.” “The National Research Council looked in detail at all the major deterrence studies of all kinds and concluded, in April 2012, that none of these studies provided compelling evidence of deterrence. In its final report, the council argued that the deterrence hypothesis should not be a basis for any policy decisions(Melusky & Pesto, pg. 58).”

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