In a speech before the Virginia House of Burgesses, Patrick Henry stated: “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging the future but by the past.” The “past,” as the Founders knew it, was one shadowed by the threat of torture for any who disagreed with government policies. Torture in the form of “pillorying, disemboweling, decapitation, and drawing and quartering” was commonplace throughout Medieval Europe. Believing that inhumane punishments had no place in a nation founded upon the principle of liberty, the Founders enacted the Eighth Amendment, which prohibits cruel and unusual punishment. The colonists were also wary of authority figures and were particularly concerned about guarding against an abuse of power by such individuals. The Eighth Amendment spoke to this concern by prohibiting judges from imposing arbitrary punishments upon individuals who came before the court.
In some countries, “disloyal or troublesome” citizens are jailed indefinitely on trumped-up charges. If they cannot pay their bail, they don’t get out. The U.S. Constitution, however, recognizes that those accused of crimes have rights. The Bill of Rights guarantees the basic human right of people to be treated with respect, even if they are convicted criminals. In this way, the Eighth Amendment is similar to the Sixth: it protects the rights of the accused, the people most susceptible to abuse because they have the least resources. And it prohibits the use of cruel or unusual punishment.
What exactly constitutes “cruel and unusual” punishment? The U.S. Supreme Court has struggled to establish a conclusive answer to this question. A few Supreme Court justices subscribe to the idea that what was considered “cruel and unusual” at the time of our nation’s founding more than 200 years ago should still shape our idea of what is considered “cruel and unusual” today. A majority of the Court, however, has determined that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society.”
Given such a benchmark as “evolving standards of decency,” one might think that Americans are safe from being subjected to punishment that the average person would consider cruel and unusual. Yet that is not so. It should be noted that while the Supreme Court has determined that executing mentally retarded people is “cruel and unusual,” it has left it up to the states to determine whether a particular inmate qualifies as “mentally retarded.” Consequently, mentally retarded inmates are still being executed for lack of uniform guidelines and standards.
Lethal injection is one form of execution that has come under great scrutiny, especially in recent years, and is often painted as a civilized and benign way to die. Lethal injection was supposed to end the debate about how states execute prisoners. As U.S. Supreme Court Justice Antonin Scalia stated in the 1994 case Callins v. Collins, “How enviable a quiet death by lethal injection.” Over the past few years, however, growing concerns have been raised that lethal injection may actually inflict greater pain on the condemned, which raises the specter of constitutional violations.
Despite reports indicating that death by lethal injection causes extreme pain when not properly performed, 37 states still use this method. In December 2006, Governor Jeb Bush halted executions in Florida after the botched execution by lethal injection of Angel Diaz. Diaz took 34 minutes to die—twice the usual time—after the needles carrying the drugs were inserted into the flesh of his arms, rather than his veins. Coroners found chemical burns on his arms, suggesting that Diaz suffered considerable pain during the execution.
Concerns about the reliability of the lethal injection protocol have been raised with the Supreme Court. Central to these concerns is the possibility that an inmate about to be executed who is not properly sedated by the first drug and then paralyzed by the second drug is able to feel the effects of the painful third killing drug but unable to express that pain due to his paralytic state. The Court was asked to determine whether this scenario is likely and, if so, whether it constitutes cruel and unusual punishment.
The Supreme Court’s decision to review the case follows in the wake of lower court rulings throughout the country that have found the scenario described above to be at risk of, or actually, occurring. In California, the state with the largest death row population, Judge Jeremy Fogel of the U.S. District Court for the Northern Circuit of California delivered a damning judgment in December 2006, wherein he stated that California’s lethal injection procedure represents “an undue and unnecessary risk” of a violation of the constitutional prohibition against cruel and unusual punishment. “This is intolerable under the Constitution,” Judge Fogel declared. “The state’s implementation of California’s lethal injection protocol lacks both reliability and transparency.”
In addition to the debate raging over what constitutes cruel and unusual punishment, there is an equally contentious dispute about whether criminal penalties, including the death penalty, are handed out based on factors unrelated to the crime, such as a defendant’s race, socio-economic class and quality of legal representation. According to the U.S. General Accounting Office, in “82% of the studies reviewed, race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.” These, and other concerns, have contributed to a growing national movement calling for a moratorium on the death penalty.
By turning a blind eye to the abuses at Guantanamo Bay and Abu Ghraib and sanctioning torture deliberately and unapologetically, including the use of waterboarding as a benign form of legalized torture, the Bush administration not only violated U.S. laws and virtually every international treaty against torture but raised the bar on what constitutes cruel and unusual punishment. Many of these same practices are still in place under the Obama administration. And the Supreme Court's determination that what constitutes "cruel and unusual" should be dependent on the "evolving standards of decency that mark the progress of a maturing society" leaves us with little protection in the face of a society lacking in morals altogether. The continued reliance on the death penalty, which has been shown to be flawed in its application and execution, is a perfect example of this.