The American death penalty: A tragedy of errors

Opinion, NakedLaw, Rights

Montana came closer today than ever before to abolishing the state’s death penalty. Georgia plans to execute the only woman on the state’s death row tomorrow. And several botched execution attempts have made national news in the past year. These types of headlines feed the heated debate over not only the concept of “an eye for an eye” but also over the manner in which states carry out capital punishments, often relying on outdated or under-researched methods.

Here, we look at the current status of the death penalty in America, including the controversy surrounding recent botched executions; how our punishment techniques compare to those in other nations; and how capital punishment may change in the future.

Current status of capital punishment in the United States

Presently, 32 states allow the death penalty, as does the military, which maintains its own law and order system, and the federal government. Of these 34 jurisdictions, states with the highest per capita rate of execution include Oklahoma, Texas, Delaware, Virginia and Missouri. Collectively, these states executed 840 inmates between 1976 and 2015. Interestingly, the murder rates in the United States are highest in five different states: Louisiana, Alabama, Mississippi, Maryland and Michigan.

The Death Penalty in 2014: Year End Report
The Death Penalty in 2014: Year End Report by The Death Penalty Information Center

Under current Supreme Court precedent, only homicidal crimes, which by definition result in the death of another, may be punishable by death. What’s more, many states require prosecutors to prove that at least one aggravating factor occurred at the time of the killing. An aggravating factor could include any of the following:

  • Torture, extreme depravity or an extremely heinous and atrocious killing
  • Killing that occurred during the commission of a first-degree felony, including robbery, kidnapping or rape
  • The murder was committed for pecuniary gain (i.e., by a “hit man”)
  • The victim was a police officer, government official, informant or witness
  • The victim was particularly vulnerable, such as a child or an elderly, pregnant or disabled person
  • The murder was a hate crime committed on the basis of the victim’s race, gender, nationality, ancestry or religion

Undoubtedly, these constitute horrific acts, and perpetrators of these types of crimes deserve their due punishment. However, the arguments against capital punishment, including the hundreds of wrongfully convicted people on death row, are numerous. Even for those in favor of the death penalty, recent problems with the administration of lethal injections have raised concerns, causing many to consider whether a major overhaul of the system may be necessary to ensure executions are, for the most part, humane and not the cause of unnecessary suffering.

Problems with the lethal injection: The Supreme Court set to consider Glossip v. Gross

Under current laws, states with the death penalty are required to carry out executions using a combination of drugs administered intravenously. Known as a lethal injection, this cocktail generally contains three drugs: one that brings about unconsciousness, one that causes paralysis, and one that stops the heart. Of the three drugs in the mix, the drug causing unconsciousness has proven time and again to be unreliable, sometimes working only partially — or not at all — and causing the inmate to experience an excruciatingly belabored death experience. Some medical professionals have asserted that in certain cases, the inmate can actually feel the entire process.

This issue has given rise to a major Eighth Amendment constitutional challenge by advocates across the United States, and the precise issue of whether the drug midazolam is an unconstitutional component to a capital sentence has finally reached the U.S. Supreme Court, which granted writ of certiorari in January 2015. The case, Glossip v. Gross, challenges three executions scheduled to take place in Oklahoma and specifically asserts that midazolam is an unconstitutional replacement for traditional barbiturate chemicals once used to bring about unconsciousness.

More specifically, the case centers around the botched execution of Oklahoman inmate Clayton Lockett, who was sentenced to death after he confessed to kidnapping a 19-year old woman, sexually assaulting her, shooting her, and burying her alive. According to eyewitness accounts, during his execution the inmate was violently shaking, rolling his head, attempting to get up and mumbling unintelligible statements — all after he received the midazolam injection. It took close to one hour for Lockett to die; the average time is eight minutes.

The American death penalty: Where is it headed?

The death penalty was, at one time, suspended in the United States after a landmark decision by the U.S. Supreme Court known as Furman v. Georgia. The moratorium lasted approximately one year, during 1972, until the practice was reinstated in 1976. Since then, federal and state courts have been bombarded with one challenge after another, including objections to the method of execution, the type of crimes punishable by execution, and certain characteristics of offenders, like age or mental infirmity, that should preclude imposition of capital punishment. Obviously, death penalty jurisprudence in the United States is far from settled, and its outcome remains unclear.

Aside from the U.S. and Japan, no other industrialized democracy practices execution of its own people. The U.S. remains one of just 58 nations that still use the death penalty, a group which includes a majority of nations in the Middle and Far East and several nations in Africa and Central and South America. With the number of U.S. jurisdictions steadily opting to eliminate capital punishment for murders committed within the state, it may only be a matter of time before the U.S. Supreme Court opts to re-hear the arguments for and against the abolition of the death penalty in America.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

Photo: “Death chamber and electric chair at Sing Sing Prison in 1923,”