Academic journal article Fordham Urban Law Journal

Challenges Facing Society in the Implementation of the Death Penalty

Academic journal article Fordham Urban Law Journal

Challenges Facing Society in the Implementation of the Death Penalty

Article excerpt

Recent legal challenges to the commonly-used method of lethal injection have raised the question of how much pain is considered too much under the U.S. Constitution. While the Constitution does not mandate a pain-free death, the implementation of the death penalty should comport with the Eighth Amendment's prohibition of cruel and unusual punishment. (1) In my nearly twenty-seven years as a judicial officer, there are few issues I have handled that have caused more anxiety. It would be easy--and, as some have said, appropriate--for those convicted of heinous crimes to receive the same fate as their victims. Those holding that opinion would argue that pain and suffering during execution is not only acceptable, but just.

Neither point of view, however, may represent the prevailing law on this subject. The Eighth Amendment requires, at a minimum, that executions not be cruel and unusual. The meaning of that phrase has evolved over time based upon perceptions of "evolving standards of decency."

I believe most would agree that the Eighth Amendment forbids torture in the implementation of a death sentence--that is, the known infliction of excruciating pain. The result may be that we treat the condemned better than they treated their victims. That notion alone creates great anxiety for many of us because most, if not all, victims of capital crimes were subject to torture.

As judges, the principle of law must be our focus. We cannot be guided by the heinous acts of the condemned in considering the issue of whether lethal injection is constitutionally valid. That is an irony of the law. The law must be fair in its application. If we were to change it for each individual, fairness would then be suspect. This is especially true when considering lethal injection and execution. Some crimes may seem less heinous than others; yet both cause extreme pain and suffering to the victims and their families.

At the execution stage, we are no longer concerned about the actions of the condemned's crimes. That ship has sailed. The condemned was tried by a jury and determined to be guilty. In the penalty phase, the jury heard the aggravating and mitigating factors about the victim, the defendant, and the crime. They determined death to be the appropriate sentence. Thereafter, the task is to implement that sentence within Eighth Amendment constraints.

While the firing squad, hanging, the gas chamber, and the electric chair have been means of execution, I believe our "evolving standards of decency" have brought us to lethal injection. On its face, lethal injection eliminates the appearance of torture. We have learned, and are learning, however, that torture may be alive and well within the "three-drug protocol" if it is not carried out properly.

Thus, the question now arises: what is to be done in light of these concerns? I do not believe that it is necessary to eliminate the method of lethal injection altogether. Rather, I believe lethal injection can survive as a method of execution if important safeguards are implemented.

Many of our citizens and those elected to represent them hold different viewpoints on this issue. Some death penalty proponents believe any concession to constitutional guarantees puts the death penalty opponents closer to a ban on capital punishment. However, according to the latest Gallup Poll completed in October 2007, sixty-nine percent of Americans are in favor of the death penalty for persons convicted of murder. (2) Thus, it is clear that society still views capital punishment as an acceptable form of punishment. It is the "how to," or method of execution which presents the recurring problem.

Our society faces real challenges here. How does society view capital punishment in light of "evolving standards of decency"? If we can accomplish execution without the potential for excruciating pain, are we obligated to do so under the Eighth Amendment? Does simply knowing that there are flaws in the implementation of the three-drug protocol and not taking precautions to address those flaws amount to an intent to inflict torture? …

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