Death Penalty Dilemma - Coursework Example

Introduction The United s has been one of the countries, which continue to impose death penalty as punishment for a crime. Around thirty-eight (38) states and the federal government currently allow capital punishment while some twelve (12) states and the District of Colombia do not impose such (Latzer 4). Several reasons have been cited why legislatures impose death penalty in the first place (Tushnet 2). The reasons they cite, among others include death penalty being a deterrent for the commission of other crimes and also to incapacitate or prevent each criminal “from continuing to commit a crime” (Tushnet 2 & 5). Death penalty has also been the subject of debate especially in relation to the United States Constitution (Latzer 1). They relate the procedures used in the imposition of death penalty with the provisions of the Constitution on Cruel and Unusual Punishment Clause, Due Process and Equal Protection of Laws Clause and other pertinent provisions protecting the rights of the accused (Latzer 1). Several issues have therefore been raised as to the implications of death penalty (Latzer 1). This paper aims to discuss the Constitutional issues raised against death penalty and the different case laws that have been decided by Federal Courts. Finally, the paper aims to give a conclusion as to what may be the possible implication of issues raised against death penalty as to cases that would be decided in the future. Constitutional Issues One of the Constitutional provisions raised on death penalty or against the procedures used to impose the said capital punishment is the Eighth Amendment. The Eighth Amendment, which was ratified in 1791, provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Amend.VIII, US Constitution 1791). This was adopted in response to the barbaric and cruel punishments during and prior to the 18th century (Latzer 1). This provision however, was not intended to abolish death penalty as a form of punishment (Latzer 1). The United States Supreme Court in a long line of its cases has constantly discarded the claim, except those individuals who were under 18 years of age at time the crime punishable by death has been committed and those considered mentally retarded criminals, that the death penalty is “in itself cruel and unusual punishment” prohibited under the Eighth Amendment (Federal Procedure 1638). However, the death sentence should not be imposed arbitrarily (Jones v. U.S., 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). Hence, the jurisprudence through the years has been aimed at establishing requirements for a procedure of capital sentencing by the Supreme Court, adhering to the Eighth Amendment (Federal Procedure 1638). Aside from this, individuals sentenced to capital punishment and even those not sentenced to the said punishment are entitled to a determination by the jury “of any fact on which the legislature conditions an increase in their maximum punishment” provided for in the Sixth Amendment (Federal Procedure 1638). The exercise of the so-called “discretionary power” on whether or not to impose the death penalty in certain offenses, must be guided and requires the evaluation of aggravating and mitigating circumstances in each particular case by the sentencer (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The Fifth Amendment which provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger XXX,” one can that death penalty is indeed “constitutionally acceptable” (Latzer 2) and therefore allowed under the Constitution. But the same constitutional provision however requires the presentment or indictment of the grand jury (Amend V US Constitution, 1791). In one case decided by the Supreme Court in the 19th century, the issue was not on whether death penalty could indeed be imposed but as to the procedure to be adopted for its imposition or the manner in which it may be carried out (Latzer 2). Thus, in the case of Wilkerson v.Utah, 99 U.S. 130,25 L.Ed.345 (1879), the Court upheld the sentence of death by public shooting unanimously and hence, indicating the acceptability of capital punishment in the United States (Wilkerson v. Utah, 99 U.S. 130,25 L.Ed.345 (1879). However, there was one case where the Supreme Court declared the death penalty to be cruel and unusual (Latzer 4). In examining the positions of the judges however, their reasoning were sharply divided and only a minority of the Court were said to be firmly opposed to capital punishment (Furman v. Georgia, 408 U.S. 238 (1972). After this decision, however, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court discarded the view that the death penalty is in itself or per se cruel and unusual (Latzer 4). In the said case, a capital punishment law in Georgia that used certain trial procedures and appeals in order to prevent the arbitrary imposition of death penalty was upheld by the Supreme Court (Gregg v. Georgia, 428 U.S. 153 (1976). Hence, after this, the imposition of the death penalty was settled in the United States. Other relevant provision invoked in death penalty cases include the Fourteenth Amendment which provides, “xxx No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”(Amend. XIV, US Constitution). In the case of Maxwell v. O.E. Bishop, 1989 WL 1184278 (U.S.), the Court held then that the single-verdict procedure aggravates the situation of a sentencing a person to death without standards and imposes unnecessary and impermissible burdens on the right to a fair trial (Maxwell v. O.E. Bishop, 1989 WL 1184278 (U.S.). In this case, the petitioner has shown that Negro defendants were disproportionately sentenced to death by reason of race, in violation of the constitutional guarantees to due process and equal protection clause (Maxwell v. O.E. Bishop, 1989 WL 1184278 (U.S.). Hence, the Court stated that there must be standards to guide juries in their selection of persons for capital punishment to comply with the Constitution (Maxwell v. O.E. Bishop, 1989 WL 1184278 (U.S.). Another Constitutional provision, which is often cited against the imposition of death penalty is the Fifth Amendment prohibiting double jeopardy (Latzer 1). In a recent case decided by the United States Court of Appeals, Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio), the Court affirmed the District Court’s decision in granting habeas relief to Petitioner which vacated his sentence of death (Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio). In this case, the Petitioner was found to be mentally retarded by the Supreme Court of Ohio in its final judgment, however, the government would like to relitigate this very same issue although it had already a full and fair opportunity to litigate this issue on direct appeal (Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio). The Court held that the state was “collaterally estopped under the Double Jeopardy Clause” from relitigating the determination made by the State Supreme Court that the petitioner was indeed mentally retarded (Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio). The Court thus affirmed the decision of the district court “in granting habeas relief to Petitioner, vacating his sentence of death, and ordering that he be resentenced to receive a sentence other than death” (Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio). Finally, the Sixth Amendment on the accused’s of the right to a speedy and public trial by an impartial jury and the effective assistance of counsel is also often cited by defendants in questioning the imposition of death penalty (Latzer 1). In the case of Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007, the Supreme Court, held that Californias determinate sentencing law, which has authorized judge, not jury, in finding facts which exposed defendant to have his sentence elevated in upper term violated his right to trial by jury (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). In this case, herein “Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14” (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). According to Californias Determinate Sentencing Law (DSL), the said offense was punishable by one of three precise terms of imprisonment, which may be a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). The said law obliged the trial judge to sentence Cunningham to the 12-year middle term unless there be a finding of one or more additional “circumstances in aggravation” (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). As defined in the Court Rules, which was adopted to implement the DSL, ‘circumstances in aggravation’ are those “facts that justify the upper term” (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). However, on a post-trial sentencing hearing, “the judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct” (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). The judge then sentenced Cunningham to the upper term of 16 years (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). The Court in this case reversed and remanded the case as the jury’s verdict alone has already limited the permissible sentence to twelve (12) years (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). The fact-finding made by the trial judge which, was in addition to the finding made, yielded an upper term sentence of sixteen (16) years (Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007). There was then a denial of petitioner’s right to a jury trial when four-year elevation of the sentence based mainly on judicial fact-finding. Baze v. Rees Case 07-5439 One case now currently pending at the US Supreme Court is the case of Baze v. Rees. In this case, the constitutionality of a procedure or the method of execution is being challenged on the ground that it violates the Eighth Amendment on cruel and unusual punishments (Baze v. Rees, 07-5439). The Court took into consideration the constitutionality of lethal injections being adopted in Kentucky (Baze v. Rees, 07-5439). Two death row inmates namely Ralph Baze and Thomas Clyde Bowling, Jr. filed a petition for certiorari claiming that the lethal injection procedure “significant and unnecessary risk of pain” citing that there are untrained personnel and “poor administrative measures” done in the said procedure (Baze v. Rees, 07-5439). Previously however, the constitutionality of the state’s procedure of lethal injection was upheld by the Kentucky Supreme Court (Baze v. Rees, 07-5439). The decision in this case will certainly affect how the procedure is being carried out although it does not necessarily put into question the validity of the death penalty itself (Finkelstein and Zuckerman, 1). Challenging Lethal Injections According to the Harvard Law Review, there have been an increase of lethal injection cases mainly because of the recent decision handed down by the Supreme Court in the case of Hill v. McDonough (120 Harv. L. Rev. 1301). However, it seems that there is really no law to guide courts in their evaluation of these cases (120 Harv. L. Rev. 1301). As stated in the Harvard Law Review, “the last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947 in the case of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)” (120 Harv. L. Rev. 1301). There however, have been evidence that anesthetizations during lethal injections are indeed unsuccessful on some occasions (120 Harv. L. Rev. 1301). An article published by a British medical journal reported that “many inmates have been insufficiently anesthetized during lethal injections” (Koniaris 1412) or reports that inmates was clearly conscious during execution (120 Harv. L. Rev. 1301). There were also reports that in the executions of Ohio, witnesses heard “moaning, crying out and guttural noises (Radelet 1). There have been numerous errors that have been identified by both the commentators and courts in procedures conducting state lethal injection, which include the following: “inconsistent and unreliable screening of execution team members, a lack of meaningful training, inconsistent and unreliable record keeping, improper preparation of chemicals, and inadequate lighting” (Morales v. Tilton, Nos. C 06 219 JF RS, C 06 926 JF RS, 2006 WL 3699493, at *6-7 (N.D. Cal. Dec. 15, 2006). The methods of execution are being challenged based on the Eighth Amendment and are said to be difficult to adjudicate since existing tests are vague and there is still disagreement as to how these tests should be applied (120 Harv. L. Rev. 1301). Being problematic and complex itself, Courts were suggested “to adopt a rule that accounts for both the objective measure of pain or risk associated with the procedure and the states interest in choosing the procedure” (120 Harv. L. Rev. 1301). This would not only be consistent with the Eighth Amendment but would also be “judicially manageable” (120 Harv. L. Rev. 1301). States should take prompt action to ensure an effective administration of capital punishment (120 Harv. L. Rev. 1301). Cases Challenging the Mode of Execution There have been a lot of cases decided by the Court which, challenge the mode of execution adopted. In McNair v. Allen, 515 F.3d 1168 C.A.11.Ala. (2008), the defendant challenged the method by which he will be executed, and the Court in this case stressed that there must be a balance between the interest of the defendant in being free from cruel and unusual punishment and the state’s primary interest in effectuating judgment (McNair v. Allen, 515 F.3d 1168 C.A.11.Ala. (2008). A death row inmate in this case moved to stay his execution as the method of execution which was death by legal injection violated the Eighth Amendment, for being a cruel and an unusual punishment (McNair v. Allen, 515 F.3d 1168 C.A.11.Ala. (2008). The Court of Appeals held that “two-year statute of limitations began to run, not at time of inmates execution or on date that federal habeas review was completed, but when inmate, after his death sentence had already become final,” hence beyond the period within which to file the said challenge (McNair v. Allen, 515 F.3d 1168 C.A.11.Ala. (2008). In the case of Emmett v. Johnson, 511 F.Supp.2d 634 E.D.Va. 2007, the Court held that it is not the office of a federal court to dictate to a state the precise methodology it should employ in carrying out a lawful death sentence, as this methodology is made by the state legislature and not the federal court (Emmett v. Johnson, 511 F.Supp.2d 634 E.D.Va. 2007). Federal courts only ensure that the procedure is constitutionally sound and does not subject the inmate to cruel and unusual punishment (Emmett v. Johnson, 511 F.Supp.2d 634 E.D.Va. 2007). The issues as to whether the procedure used should conform to prevailing medical standards of care, or whether there is a more humane execution procedure, are within the power of state legislatures and not the federal courts (Emmett v. Johnson, 511 F.Supp.2d 634 E.D.Va. 2007). In Harbison v. Little, 511 F.Supp.2d 872 M.D.Tenn. Nashville.Div., 2007, the Court held that in order to establish that the method of execution would indeed violate the Eighth Amendment on the infliction of unnecessary pain, a death row inmate must establish that the pain be serious, and that the demeanor on the part of the prison official be “wanton,” or unjustifiable to inflict pain on prisoner (Harbison v. Little, 511 F.Supp.2d 872 M.D.Tenn. Nashville.Div., 2007). It must show that the punishment methods “cause a foreseeable risk of gratuitous and unnecessary pain” and not mere negligence to implement the death penalty procedure (Harbison v. Little, 511 F.Supp.2d 872 M.D.Tenn. Nashville.Div., 2007). In the case of Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007, the Court held that “The risk of negligence in implementing a death-penalty procedure, particularly when the risk has not come to pass in the state, does not establish a cognizable claim under the Eighth amendment” (Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007). In this case, the drug used in lethal-injections was the pancuronium bromide which veterinarians refused to use in euthanizing animals (Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007). When injected, it was used in combination with other drugs to prevent convulsions (Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007). Furthermore, in this case, although it was the employees of the corrections department that performed the lethal injection procedure, the Court held that such was not a violation of the Eighth Amendment, as physician being in another room was necessary for security reasons ((Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007). Conclusion There have been several cases on death penalty, mainly raising issues of whether or not it complies with the Constitutional safeguards set forth. The most recent issue on death penalty, being the method of procedure being adopted in relation to the Eighth Amendment on cruel and unusual punishments. Indeed, the said issue is technical and needs to be resolved in order to guide future decisions that may be made and which would resolve challenges against the procedure on lethal injections. Works Cited Baze v. Rees Case 07-5439 Bies v. Bagley, ---F.3d---, 2008 WL 507818 (C.A.6 (Ohio). Cornell University Law School. 4 April 2008. Legal Information Institute. Finkelstein, Eric and Michael Zuckerman. 4 April 2008 [http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html]. Cunningham v. California, 127 S.Ct. 856, 166 L.Ed.2d 856, 75 USLW 4078, 07 Cal. Daily Op. Serv. 753, 2007. Emmett v. Johnson, 511 F.Supp.2d 634 E.D.Va. 2007. Federal Procedure 1638 (2007). Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Harbison v. Little, 511 F.Supp.2d 872 M.D.Tenn. Nashville.Div., 2007. 120 Harvard Law Review 1301. Jones v. U.S., 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). Latzer, Barry. Death Penalty Cases: Leading U. S. Supreme Court Cases on Capital Punishment, Second Edition. New York: Butterworth-Heinemann, 2002. Koniaris, Leonidas, et al. Inadequate Anaesthesia in Lethal Injection for Execution. 365 Lancet 1412 (2005). Maxwell v. O.E. Bishop, 1989 WL 1184278 (U.S.). McNair v. Allen, 515 F.3d 1168 C.A.11.Ala. (2008). Morales v. Tilton, Nos. C 06 219 JF RS, C 06 926 JF RS, 2006 WL 3699493, at *6-7 (N.D. Cal. Dec. 15, 2006). Tushnet, Mark. The Death Penalty. New York: Factson File, Inc., 1994. Radelet, Michael. 3 May 2006. Some Examples of Post-Furman Botched Executions (2006) [http://www.deathpenaltyinfo.org/article.php?did=478]. 4 April 2008. Thomson/West (2007). Federal Procedure, Lawyers Edition. 9A Fed. Proc., L. Ed. § 22:1638 U.S. Constitution Amendments V, VI, VIII and XIV. Wilkerson v. Utah, 99 U.S. 130,25 L.Ed.345 (1879). Workman v. Bredesen, 486 F.3d 896 C.A.6.Tenn., 2007. Read More