Cross-posted from Consortium News
The recent torturous execution of Clayton Lockett in Oklahoma has propelled the death penalty into the national discourse. The secret three-drug cocktail prison authorities administered to Lockett -- the first to render him unconscious, the second to paralyze him, and the third to stop his heart and kill him -- didn't work as planned. After writhing in pain for 43 minutes, he finally died of a heart attack.
Madeline Cohen, a lawyer who witnessed the botched execution, said Lockett had been "tortured to death." Seasoned reporters, also witnesses, called it "horrific." President Barack Obama found it "deeply disturbing" and promised a review of how the death penalty is administered.
It recommended that death penalty states should use one drug instead of three to kill their citizens. It called for fewer constraints on post-conviction review of exonerating evidence, and videotaping of interrogations to identify false confessions, concluding that over 80 percent of 125 documented false confessions occurred in homicide cases; 20 percent of the defendants in those cases were sentenced to death. It recommended the abolition of the death penalty for "felony murder," in which a person participates in, but does not commit, the homicidal act.
It expressed concern about inconsistent application of the ultimate penalty since the Supreme Court ruled in 2002 that intellectually disabled individuals should not be executed. It criticized states such as Texas, Alabama and Pennsylvania for compensating capital defense lawyers so poorly that it is "nearly impossible" to receive a proper defense. And it urged death penalty states to determine whether there are racial disparities in the application of the death penalty. The bipartisan panel did not, however, recommend abolition of capital punishment.
A new study just released by the Proceedings of the National Academy of Sciences determined that 1 in every 25, or 4.1 percent, of people on death row, are innocent. But the innocence rate is 4.1 percent, more than twice the rate of exoneration. That means an unknown number of innocent people have been put to death.
"Every time we have an execution, there is a risk of executing an innocent. The risk may be small, but it's unacceptable," said Richard Dieter, executive director of the Death Penalty Information Center.
Cruel and Unusual
The Eighth Amendment to the Constitution outlaws "cruel and unusual punishments." Although the Supreme Court has upheld the death penalty, some justices have concluded it violates the Eighth Amendment.
In 1972, in Furman v. Georgia, the high court imposed a moratorium on the death penalty because it was arbitrarily imposed. Justice Potter Stewart wrote for the majority that executions were "so wantonly and so freakishly imposed" that they are "cruel and unusual in the same way that being struck by lightning is cruel and unusual." But Stewart was only opposed to capital punishment as a matter of policy.
States revised their death penalty statutes to eliminate arbitrariness, and four years later, the Court upheld Georgia's new and improved death penalty law in Gregg v. Georgia. Unlike Justices William Brennan and Thurgood Marshall, Stewart did not believe the death penalty was unconstitutional.
Marshall noted in his concurrence in Furman, "Perhaps the most important principle in analyzing 'cruel and unusual' punishment questions is [that] . . . the cruel and unusual language 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society' . . . Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand."
Brennan also concurred in Furman. He wrote, "When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore 'cruel and unusual,' and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison."
Eighteen years after Furman, Justice Harry Blackmun came to the conclusion that the death penalty was unconstitutional. In 1994, his last year on the Court, Blackmun famously wrote, "From this day forward, I no longer shall tinker with the machinery of death."
Most recently, in 2008, Justice John Paul Stevens decided the death penalty amounts to cruel and unusual punishment. Stevens concluded, "[T]he imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'" [quoting Justice Byron White's Furman concurrence].
In his new book, Six Amendments, Stevens proposes the Eighth Amendment be changed to read, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted."
Racism in Imposition