Injecting Constitutionality into the Death Penalty
While the death penalty is falling out of favor with the American public, sixty percent of Americans continue to support it. And since 1976 (after a brief hiatus), the death penalty has been sanctioned by the Supreme Court. In three decisions that year, collectively referred to as the Gregg decision, the nation’s high court upheld “guided discretion” statutes—those that force the players to consider aggravating and mitigating circumstances before meting out capital punishment. The Court also held that the death penalty itself was constitutional under the Eighth Amendment, which prohibits “cruel and unusual punishment.”
In the modern death penalty era, the favored form of execution is lethal injection. Until recently, states had this procedure down to a science. Step 1: Inject inmate with sodium thiopental or pentobarbital to render him unconscious. Step 2: Inject inmate with pancuronium bromide to paralyze all of the muscles in his body. Step 3: Inject inmate with potassium chloride to stop his heart.
Since last year, this three-drug cocktail’s use has been dwindling. In 2011, the European Union banned the sale of the first round of drugs to executioners. Since the drugs aren’t produced domestically and prisons’ stockpiles are expiring or becoming depleted, states have been forced to improvise with different drugs in execution cocktails. These new drugs are untested as agents in lethal injections, with the result that the procedures resemble experiments more than streamlined executions.
Michael Lee Wilson, an inmate executed in Oklahoma on January 9, said that he felt his “whole body burning” shortly after receiving his first injection. Dennis McGuire, an Ohio inmate executed on January 16, took 26 minutes to die after being injected with an untested combination of a painkiller and a sedative—about 16 minutes longer than it would have taken with the traditional three-drug cocktail.
These slower, potentially painful deaths raise the question of whether the death penalty, as it is currently carried out, remains constitutional. While a painless, relatively quick death may be constitutional, what about an execution that takes an average of 10 minutes longer? One that has been accompanied by proclamations of pain, or grimaces? Is a painful execution “cruel and unusual” where a pain-free death is not? In the wake of these recent “ugly” executions, it is time for the Supreme Court to revisit the death penalty.