Lethal Injection: Constitutional Method of Execution or Cruel and Unsual Punishment?

Article excerpt

Introduction *

   From this day forward, I no longer shall tinker with the machinery
   of death. Rather than continue to coddle the Court's delusion that
   the desired level of fairness has been achieved and the need for
   regulation eviscerated, I feel morally and intellectually obligated
   to simply concede that the death penalty experiment has failed. It
   is virtually self-evident to me now that no combination of
   procedural rules or substantive regulations ever can save the death
   penalty from its inherent constitutional deficiencies. (1)

Part I of this article sets forth a brief history of capital punishment in the United States. Part II sets out the history of lethal injection. Part II contains an explanation of the creation of the lethal injection and the three drug protocol used in most states. The drugs used in the lethal injection process are explained and the problems with each drug are analyzed. Additionally, there is a synopsis of the alternatives that have been proposed for each of the three drugs. Finally, Part III evaluates the merits of the death row inmate's constitutional challenges to lethal injection concluding with an analysis of the recently argued United States Supreme Court case Baze v. Rees.

Part I: A Brief History of Capital Punishment In The United States

The origin of the death penalty has been traced back to the much-respected ancient empires of Greece and Rome. These empires implemented the death penalty as a way to heavy-handedly enforce compliance with government policy. (2) Some scholars have maintained that the oldest reference to the death penalty can be traced back to the Code of Hammurabi, one of the earliest and best preserved law codes from ancient Babylon created in 1760 BC. (3) As centuries passed and legal systems modernized, the cruel nature of capital punishment continued. (4) Diverse methods such as stoning, burning, crucifixion, impalement, drowning, live burial, the guillotine, and hanging were used to execute those who committed any variety of crimes. (5) The harsh consequences of capital conviction carried over to the American Colonists from England. (6) All crimes that had been a capital crime in England (treason, murder, manslaughter, rape, robbery, burglary, arson, counterfeiting, and theft) became capital crimes in the American colonies, along with the public hangings that were punishment for those crimes. (7) Influenced by English common law tradition, American colonists inflicted the death penalty on criminals through various methods, these included being pressed to death, by firing squad, being drawn and quartered, and burned at the stake. (8) The first recorded execution in the American colonies took place in 1608 in Jamestown, Virginia, where Captain George Kendall was shot for being a Spanish spy. (9)

Since colonial times death penalty legislation in the United States progressed to meet the evolving standards of decency of the society. The trend in the evolution of methods was to modernize and humanize the death penalty as new methods emerged in the following order: from hanging (10) carried over from England, to electrocution (11) in 1888, to lethal gas (12) in 1924 to lethal injection (13) in 1977 through to present. (14)

By 1955, eleven states were using lethal gas, and twenty-two states were using electrocution. (15) By 1973, twelve states were using lethal gas and twenty states were using electrocution, however, no state has selected to use lethal gas as a method of execution since that year. (16) By 1994, there was a national consensus that lethal gas was not an acceptable method of execution and twelve states had since abandoned it. (17) From 1977 to 1994, lethal injection became the overwhelmingly predominant method of execution. (18) During that time there was a rapid increase in the total number of executions driven largely by increases in lethal injection executions. (19) Since 1977, when lethal injection was first introduced, no state has changed to or included as an additional "choice," any other methods of execution except lethal injection. …