Examining the Constitutionality of Capital Punishment: Evolving Standards of Decency

Capital Punishment: The Constitutionality of an Irreversible Sentence of the Death Penalty A THESIS [Instructor Name] BACHELOR OF ARTS BY [University] HAMPTON, VIRGINIA May 2019 ABSTRACT DEPARTMENT OF POLITICAL SCIENCE AND HISTORY BACHELORS OF ARTS, 2020 Capital Punishment: The Constitutionality of an Irreversible Sentence of the Death Penalty THESIS DATE: April 3, 2017 For over a century, constitutionality, the painlessness, the fairness, its historically disproportionate application to minorities, the standards of proof and other aspects of the death penalty has been a heated topic of discussion. It has inspired countless supporters and abolitionists to develop prevailing arguments and theories to support their position in the matter. The intertwining of ethical, scientific, and political components have allowed debates to continue for so long (especially as society’s standards for decency continue to evolve and change). Literature, consisting of Supreme Court Cases and other scholarly research will be reviewed in an attempt to unpack the complexities of this affair. The question this thesis will demonstrate is that given the dynamic nature of the "cruel and unusual punishment" clause, do evolving standards of decency that exist in a maturing society dictate the type of execution that is considered unconstitutional? Table of Contents Abstract…………………………………………………………………………... i Table of Contents………………………………………………………………… ii Chapter 1: Introduction…………………………………………………………… 1 Chapter 2 - Literature Review……………………………………………………. 7 Chapter 3 - Theoretical Framework…………………………………………….... 16 Chapter 4 - Research Methodology……………………………………………… 21 Chapter 5 - Results and Analysis………………………………………………….29 Chapter 6 - Summary ……………………………………………………………. 38 Chapter 7 - Conclusion…………………………………………………………... 46 Bibliography…………………………………………………………………….... 51 Chapter One: Introduction BACKGROUND TO THE PROBLEM Capital punishment is an intolerable denial of civil liberties and inconsistent with the fundamental values that define the democratic system. Through objective analysis, this thesis will prove that the death penalty is uncivilized in theory and inequitable in practice. What is generally known about the cruel and unusual punishment clause of the Eighth Amendment is that it is the most disputable piece of The Constitution when discussing the death penalty. The historical backdrop and chronology will provide a critical illustration of how cruel and unusual punishment has been defined. The preeminent hurdle for the death penalty is the cruel and unusual punishment clause in the Eighth Amendment. The clause, however, has been interpreted by the Supreme Court as having “evolving standards of decency”. In other words, the Court considers modern societal trends when determining constitutional protections. Supreme Court justices, like average citizens, are woven into society and are similarly influenced by views that form the country’s opinions. The prominent death penalty decision, Furman, was decided by the Supreme Court in 1972. At this time, the death penalty was temporarily abolished by the Court and held unconstitutional for various reasons. The Furman Court applied the "evolving standards of decency", ultimately influencing the majority opinion. The socio-political trends at the time weighed heavily in the Court’s opinion; the majority Justices became countermajoritarian heroes. The Justices in Furman realized the import of modern, societal standards and articulated countermajoritarian theory in the heart of the opinion. Furman is a perfect example of the Supreme Court's ability and inclination to champion the humanitarian aspects of modern times. In Furman, the Supreme Court officially abolished death penalty statutes in thirty-nine states as well as the federal government, a move that required unmitigated courage during the conservative law and order era. The first 175 years of the Eighth Amendment’s cruel and unusual clause was ignored by most constitutional law scholars. It was the subject of only six Supreme Court cases and became the basis of three guiding principles. The first two principles articulated in Furman were prohibitions: a punishment could not "involve torture or a lingering death," nor could it be ‘grossly disproportionate’ to the crime. The third principle called for an open interpretation of the clause. Contrast the Furman principles with the earlier decision In Weems v. United States (1910), where for the first time the Court expanded the meaning of cruel and unusual punishment. In Weems, the Court established that the death penalty was “cruel and unusual” if is a "precept of justice punishment for crime should be graduated and proportioned to the offense." The Court opined that not only could the method of execution be inherently cruel, but the punishment may be inordinate when compared to the offense. What is not known are the complexities of the clause. The clause is saturated with ambiguity and called for a universal definition. Identifying the type of discipline that constitutes “cruel and unusual" created the foundational question for scholars, and ultimately the Supreme Court, to answer. One obvious hurdle was the subjectivity of barbarity and how it is measured. Moreover, if discipline is inherently cruel, what additional criteria also define "unusual"? History provides some clarity on the history of the expression "cruel and unusual punishment." In 1689, a century before the endorsement of the United States Constitution, England promulgated a Bill of Rights that disallowed "cruel and unusual disciplines." In 1776, George Mason incorporated a preclusion of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, the same injunction turned into the focal part of the Eighth Amendment to the United States Constitution. RESEARCH QUESTIONS The research question that will be examined in this paper is as follows: Do the methods of execution and its subsequent physical impact on the human body render capital punishment a violation of the cruel and unusual punishment clause of the Eighth Amendment in the Constitution? A secondary question is as follows: Given the dynamic nature of the "cruel and unusual punishment" clause, do evolving standards of decency that exist in a maturing society dictate the type of execution that is considered unconstitutional? STATEMENT OF THE PROBLEM The death penalty is a product of a flawed criminal justice system along with the methods of execution and its impact on the human body making capital punishment a violation of the cruel and unusual punishment clause of the Eighth Amendment in the Constitution. METHODOLOGY The academic approach utilized to conduct this research will be qualitative. Qualitative methodology will allow this thesis to introduce and use both majority and dissenting opinions from previous court cases and illustrate how constitutional precedence plays a role in defining methods of execution that violate the Eighth Amendment. Written sources, books, and scholarly articles contribute to an objective analysis one how certain methods of execution are considered “cruel and unusual.” The strength of qualitative research creates the ability to use textual descriptions of experiences of a given research topic. This method is also useful to identify and discuss intangible factors as well as written reports. This is beneficial to the underlying argument that thesis will defend. Qualitative research will also include an analysis of the original definition and meaning of the term, ‘cruel and unusual punishment’ by the framers of the Eighth Amendment. Through relevant case law that extends over the last century, the circumstances that qualify as cruel and unusual punishment will be identified and discussed. Key Terms The following are terms that will be used to ensure the reader will comprehend the components of the study in the way that it will be presented: Cruel and unusual punishment –a sentence may not be disproportionate to the crime committed, regardless of whether the crime is a felony or a misdemeanor. To measure proportionality, the court must look at several factors. These factors include the severity of the offense, the harshness of the penalty, the sentences imposed on others within the same jurisdiction, and the sentences imposed on others in different jurisdictions. Public opinion- the opinions that people in society have about an issue Constitutional- connected with the constitution of a country or an organization DELIMITATIONS Because this thesis includes qualitative measuring, identification of the doctrinal landscape defining cruel and unusual punishment clauses can be subject to criticism. The constant evolution of societal mores and norms militate against countermajoritarian change. It is clear that the Furman v. Georgia opinion was deeply influenced by social and political movements. However, the backlash in Furman ultimately birthed its reversal in Gregg v. Georgia. Through Justice Brennan and Marshall’s dissenting opinion in Gregg, it became obvious that the absence of countermajoritarianism created a limiting factor that will be addressed later. . SIGNIFICANCE OF THE STUDY With the application and support of capital punishment waning, the importance for research into its effects heightens. Recent polling suggests that support for the death penalty in the United States is at an all-time low. Moreover, the number of death verdicts also decreased. In 2014, only 73 defendants were on death row and 35 were executed. This is in stark contrast with the 279 death sentences and 98 executions in 1999. In addition, since 2007, eight states have abolished the death penalty and no states have added the penalty. This study is significant because the framers of the Eighth Amendment intended the cruel and unusual punishment clause to evolve and ultimately mirror standards of decency. Public opinion insists that executions and the methods employed to accomplish, violate the Eighth Amendment. ORGANIZATION OF THE REMAINDER OF THE STUDY This thesis will be organized as follows: Chapter 2 will provide a literature review consisting of literature, including the current research that provides substantive findings. Chapter 3 will be the theoretical framework, which provides an analytical structure and academic support for this research study. The remaining chapters will detail this thesis. Chapter 2: Literature Review This chapter enumerates the literature, inclusive of articles that provide the foundational support for this argument. As established in Chapter 1, the intent of this paper is to present detailed, neutral research that supports the following: the methods of execution to terminate human life is cruel and unusual punishment and is a direct violation of the Eighth Amendment to the United States Constitution. This chapter will illustrate and explain the inhumane, barbarous aftereffect of execution methods both historically and currently employed. This chapter also highlights the deleterious effects of execution on the human body and even the most modern forms of execution meet the legal standard for cruel and unusual punishment. Finally, this chapter engages a robust analysis of Supreme Court decisions that defined cruel and unusual punishment. A review of literature and court cases will support this argument. This research outlines how the constitutionality of the death penalty has been heavily debated on a national level. Critics of capital punishment argued for a moratorium on the death penalty while proponents argued for its reinstatement. The philosophical and legal debates over the death penalty are described by C.S Lanier in his article “Capital punishment, the moratorium movement, and empirical questions: Looking beyond innocence, race, and bad lawyering in death penalty cases.” Lanier reflects on the staggered consistency of the death penalty’s existence. Since the 1960s, government officials have been busy rewriting the capital punishment laws to ensure effectiveness. This article succinctly illustrates a cogent argument for a moratorium against the death penalty as well as analyzes the executive and legislative responses to the call for a cease and desist on the practice of executions. Lanier explained that the formalized ban became official after the publication of Furman v. Georgia. In addition, the individual Justices in the Court’s 5-4 per curium opined that the death penalty was “selectively applied” to the poor and disenfranchaised. Lanier examines these issues and ponders a fundamental inquiry: whether the death penalty is an effective, remedial function or whether the finality of the punishment is so severe that it outweighs public demand for accountability. The article identifies a variety of controversial issues and also provides a full review of current policy considerations related to capital punishment. The information in the article lays the groundwork for an interesting legal, social, and philosophical assessment of the death penalty in America. The year 1972 unleashed the landmark decision in Furman v. Georgia. The United States Supreme Court overturned the legality of the death penalty. Corinna Laine carefully detailed the fundamental cause and effect of the death penalty moratorium in her article entitled: “Furman Fundamentals.” Laine explains the legal analysis in Furman that was outlined by the majority Justices and how they included a humanistic element, the wellbeing of the defendant was suddenly a critical factor in death sentences. In the early 1970’s, both the composition and disposition of the Supreme Court move into a legally progressive position. The Court’s opinions swung in favor of prioritizing the human rights of defendants over public policy concerns. Barret pondered the question of the Court’s alacrity, not quite able to determine whether the expansion of civil rights and protection of innocent defendants was the dispositive trigger. Barret opines on America’s past transgressions; specifically, on a racially and socially charged criminal justice system did not dispense punishments equally or fairly. Furman v. Georgia discredited and ultimately delegitimatized the death penalty, debunking the notion that criminals were not deserving of humane treatment. For the first time, the Court exposed its commitment to protect and defend the constitutional civil rights of capital defendants. Contrary to public opinion, the Court curried its strength amid the rampant unpopularity of their decision. The social and political atmosphere in the early 1970’s was charging toward a progressive social agenda. Public ideologies slowly shifted from strict conservatism to open liberalism. Examined later will be the Court’s reticence prior to Furman v. Georgia and Gregg v. Georgia, to protect the rights of minority criminal defendants. Prior to the landmark Furman case, the Supreme Court’s inclination to protect low income or minorities was challenged at best. However, the influence of shifting public opinion that began to demand racial equality, the Court landed in a tenuous position. Time was of the essence for the Court to ensure that the laws of the land were fully and faithfully protected; that all defendants were represented and treated equally in the hollowed eyes of the U.S. Constitution. In 1972, there were 650 condemned prisoners on death row waiting anxiously for the Supreme Court’s decision on the legality of the death penalty. Prior to Furman, minor offenses such as robbery qualified for a death sentence. However, the Furman decision precipitated the U.S. Supreme Court to impose an official moratorium on all executions. Following Furman, Gregg v. Georgia held that the uniqueness of the death penalty required the Furman Court to hold that capital punishment could not be imposed under sentencing procedures. The dissenting opinions in Gregg v. Georgia concurred that the death penalty was “freakish,” “arbitrary,” and “capricious” and was a clear violation of the Eighth Amendment. In 1976, despite the heavy influence of the dissenting Justices, Gregg v. Georgia lifted the moratorium of the death penalty, reversing Furman. Prior to Gregg v. Georgia, the Court was never influenced on the issue of the legality of sentences on the basis of popularity. The Court introduced the phrase “evolving standards of decency,” only to validate the notion of a living constitution, not to emphasize majoritarian-based protection. The death penalty’s compliance with “evolving standards” did not confront nor solve the arbitrary nature of capital sentencing that Furman Court found unconstitutional. Chapter 1 briefly introduced dissenting opinions of Justices Brennan and Marshall and there will be further expansion and analysis. In A Wild Justice, Professor Evan Mandery, a former capital punishment defense attorney, and current professor at John Jay College of Criminal Justice vividly illustrates “the death and resurrection of capital punishment.” Mandery, a self-described death penalty critic, maintains an untamed passion for the rights of capital defendants. The roles analyzed in his book are that of the Supreme Court justices and attorneys involved in landmark cases such as Furman v. Georgia and Gregg v. Georgia. Mandery described how a small group of lawyers started a practice defending capital cases and found success. He also dissects the public attitude and approach towards capital punishment with most minorities weighing heavily against it. A