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These: Concept marked in the court’s ruling as to how one might go about deciding whether or not a punishment is considered to be cruel and unusual, and would therefore be unconstitutional. Experts often debate not only whether the death sentence is cruel and unusual in and of itself, but also whether or not the specific methods used to carry out the sentence qualifies as cruel and unusual. One cannot form an informed opinion on the matter without hearing the arguments that experts from both sides have to present. Whether electrocution is cruel and unusual punishment in one such debated subtopic. The same can be said of whether lethal injections is a cruel and unusual punishment in capital crimes. There are those experts that will claim one to be perfectly ethical and the other to cross far beyond the line of cruel and unusual.
In the early days of European society, execution methods such as burning at the stake, drowning, and being drawn and quartered, among others, were not only seen as acceptable, but were also common. For centuries, it seemed that any method of killing a human being was valid for punishing those guilty of capital crimes, regardless of how painful or drawn out the process was. As the centuries passed, the idea of cruel and unusual punishment began to emerge. As this idea became more and more prominent, it slowly became a concern when creating and reforming the laws surrounding capital punishment. Due to this thinking, most methods of execution were banned in the major countries in the world and hanging became the most common form of capital punishment until the electric chair replaced it. In more recent times, lethal injections have have become the method of choice and replaced the electric chair. This change was brought about under the idea of avoiding cruel and unusual punishment, as the 8th amendment requires. (Reggio.)
Today, cruel and unusual punishment is defined as “Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the Common Law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community.” (Cruel and Unusual Punishment.) While the concept initially became a concern in America when the 8th amendment was created, it took the courts years to properly define what constituted cruel and unusual punishment. When a solid definition was created, it was noted that the qualifications of a cruel and unusual punishment were fully expected to grow and change as society did. The expectations for how capital punishments were carried out were expected to evolve over time as well. (Cruel and Unusual Punishment.)
Experts often debate on whether or not certain methods of execution constitute a cruel and unusual punishment. It is a hot topic that could arguably have no true answer, but one cannot form a truly educated opinion on the matter without hearing the arguments that experts from both sides of the coin have to present. There are some who believe that electrocution is cruel and unusual, and some who don’t. The same can be said of lethal injections, and there are even some experts that will claim one to be perfectly ethical and the other to cross far beyond the line of cruel and unusual. Different people will view the merits of these arguments differently, however everyone can gain from learning both sides, as we will set out to do in the following pages.
There will always be people who fight against the use of the death penalty in general, but some methods result in more uproar than others. In modern times, it seems that the use of the electric chair is the execution method that causes the most backlash from the public when used. The use of the electric chair has been ruled as cruel and unusual punishment by the Supreme Court of Nebraska, the last state to rely solely on the electric chair for executions. In it’s official statement regarding the case, the court wrote that “condemned prisoners must not be tortured to death, regardless of their crimes.” (US: Electric Chair Banned as Cruel and Unusual Punishment.)
While Nebraska may have been the last state to rely solely on the electric chair, it was not the last state to have it in use at all. In Tennessee, along with a handful of other states, the electric chair is available for use either upon the inmate’s request or when the drugs used for a lethal injection are not available. In a personal account detailing what he hoped would be the final electrocution in Tennessee, Lawyer David Raybin stated:
“I believe that our constitution does not prohibit the death penalty and that each state should decide if the ultimate sanction should be meted out in extraordinary cases. That said, what I had just seen was barbaric in the extreme. No medieval torture could be more bizarre. The state officials had acted with all the courtesy and care possible. I felt for those who had to participate in this electronic ritual of death. … But now, … the Tennessee legislature has voted to bring back the electric chair. We are the only nation in the world that employs the electric chair. On that standard alone it should be deemed both cruel and unusual. … The death penalty is not for revenge or punishment. It is for public condemnation of those whose outrageous murderous acts warrant the ultimate sanction. And so the means of execution is just as important as the execution itself. … It demeans us as a society to have this electric chair execution on the books much less to actually use it. The electric chair is a carnival of death which brings no dignity to the victim or our judicial system.” (Raybin.)
As a lawyer and as someone who viewed the full process of the execution, including the preparation process that led up to it, Raybin has a rather unique perspective on the matter of using the electric chair in executions. His testimony makes it clear that there is legitimacy in the claim that the use of the electric chair constitutes cruel and unusual punishment.
Despite these arguments against it, there are also some significant arguments in favor of using the electric chair for executions. Austin Sarat, during his research and extensive data analysis for his book “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” found that executions carried out through the use of the electric chair actually had the lowest botch rate out of all common execution methods seen throughout history. While there is no certainty that the process will be quick and painless, there is a much higher chance that the execution will go smoothly and avoid unnecessary pain and suffering. Sarat also noted “At the end of the 19th century, New York was the first state to come along and say we need a different method. And the method that New York chose was the method of death by electrocution. The electric chair in New York was developed out of a competition between Thomas Edison and George Westinghouse. And that competition had to do with the properties of electricity and the ways in which electricity could be used to kill humanely.” (Inskeep, Sarat.)
In 2014, Tennessee lawmakers voted to bring back the electric chair when the drugs necessary for the lethal injection are unavailable. As Senator Ken Yager said, it “closes a loophole in current law.” He introduced the bill due to “a real concern that we could find ourselves in a position that if the chemicals were unavailable to us that we would not be able to carry out the sentence.” While some people will argue that this violates the 8th amendment, it also ensures the protection of a prisoner’s right to due process. Even though it is likely that most death row inmates would be happy to have time added to their lives, there is still the fact that they all retain the right to due process, and that includes being executed on schedule. “There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution. No other state has gone so far.” (Tennessee Clears Way to Bring Back The Electric Chair.) The fact that no other state has gone so far can be seen as an argument on either side. No other state has enacted this kind of law that mandates the use of the electric chair when necessary, however when this law was enacted, it was to protect the right to due process and for this purpose, the electric chair is the way to go as it can be used at any time, even when other execution methods are unavailable.
Craig Brandon, author of The Electric Chair: An Unnatural American History, explained that “the electric chair is a unique case, because the machinery is growing decrepit, and few people know how to use it anymore.” (Chang.) While the chair itself may not be cruel and unusual, the fact that few people know how to use could cause it to seem that way as untrained staff will cause more mistakes in any process. Therefore, perhaps the issue is not with the punishment itself, but with the people in charge of operating the equipment and carrying out the sentence. The use of the electric chair will likely be up for debate up until the day that society forgets it and lets it fall into the past.
The issue of using lethal injections in the execution of convicts is a much newer issue than the electric chair, but it faces very similar scrutiny from people against their usage, along with similar rallying cries from those who strongly believe that the injections should be used for the worst criminals in the system. Lethal injection cases have made it to the Supreme Court countless times, and the Court has remained consistent with its ruling.
“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.” Baze v. Rees (2008) U.S. Supreme Court (Stevens, J., concurring). (Lethal Injection.)
Experts constantly argue over the use of lethal injections and whether or not they should be considered cruel and usual. Arguments for the use of lethal injections include the notion that sometimes it is necessary to execute criminals, and at this point, utilizing lethal injections is the most humane way known to do so. ( Levs, Josh, Ed Payne, and Greg Botello.) Time and time again, the issue of lethal injection has been brought to the courts, often following a botched execution. Each time, the Supreme Court has backed the use of lethal injections in carrying out capital punishments using the argument that it is currently the “most humane and practical method known to modern science.” (Grinberg.) Despite the claim that lethal injections are the most humane and practical, there is still the fact that those who have conducted extensive data analysis, such as Austin Sarat, have found that out of all common execution methods used throughout history, lethal injection is actually the one that has the highest botch rate and leads to the most instances of failure and/or the infliction of unnecessary pain and suffering to the condemned inmate.
“I’ve looked at every execution between 1890 and 2010. There are more botched lethal injections than any other technology used during the course of the 20th century. It’s not easy to use the lethal injection method, especially when the personnel who are administering it are not medically trained. And as you know, the American Medical Association has forbidden physicians to play an active role in carrying out the death penalty. You’ve got to get the dosage of the drugs right. You’ve got to find the vein, and you’ve got to do so in an efficient way. And those things have turned out not to be easy to do.” (Inskeep, Sarat.)
Some experts fight against the use of lethal injections for capital punishment on the grounds that there is no way to guarantee that the process will prove to be quick and/or painless. Medical ethicist Dr. Daniel P. Sulmasy confirms that “From a technical point of view, yes, it’s possible to make an execution quick and as painless as possible, if that’s what you’re trained to do. However, it is always immoral and inhumane to participate in an execution, even if it’s done painlessly.” (Grinberg.) A related argument from Dr. Joel Zivot bounces off the slightly disturbing idea that all executions carried out by lethal injection are a kind of experiment at least to some degree. “This is just the state — with the decision that it’s going to execute someone — taking compounds and giving them to people and then seeing what happens. And then that’s all.” (Watkins.)
When executions go according to plan, there is little evidence one way or the other whether or not the process truly was as painless and humane as it is made out to be, however there are several accounts from botched executions that can make anyone wonder just how painless the method really is. (Grinberg,) After witnessing a botched lethal injection execution, Zivot stated that the prisoner’s final moments “sounded like suffering to me. All you have is how it looks and this one didn’t look very good, by all accounts. … None of these compounds are intended for the purpose of executing people. They are medicine. [The state is] playing doctor, and playing it poorly. … It’s hard to imagine that that’s ethically justifiable.” (Watkins.) With the drug shortages occurring due to companies refusing to have their drugs connected to executions, there is an almost scary amount of experimentation going on as states struggle to find new drugs to use. These experiments have lead to botched executions where the mixture did not act as it was intended and the condemned convict went through unnecessary pain and suffering – two key parts of a cruel and unusual punishment.
Legal expert Deborah Denno has compared the process of selecting an execution method to trying to figure out what to make for dinner. “It’s like going to your kitchen cupboard trying to look for something to prepare for your next meal and just looking for anything” (Watkins.) “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the court should call for full briefing on the basic question,” Justice Stephen G. Breyer stated. Justice Ruth Bader Ginsbur has also agreed with this. (Barnes.)
Even though there are countless people with countless arguments against the use of lethal injections in carrying out execution sentences, there are also some experts who believe this really is the best way to go about it. Even though Sarat has his opinions against the use of lethal injections, he also says that upon introduction of the lethal injection, “the promise was that lethal injection, of course, would be not only humane but would appear to be humane. It’s a hospital-like procedure. And indeed the execution chamber has come to resemble almost a hospital operating room.” (Inskeep, Sarat.) A part of deciding that a punishment is not cruel or unusual is in ensuring that it is humane. The Supreme Court has often come to the consensus that the lethal injection satisfies the 8th amendment, and is perfectly acceptable from a purely legal stand point. (Barnes.) (Fuller.)
Over four decades after its initial invention, the creator of the protocol, Dr. Jay Chapman, has still been quoted to say “I don’t see anything that is more humane.” (Sanburn.) If anyone knows the ins and outs of lethal injections, it would almost certainly be the person who invented it.
“[Oklahoma State] Rep. Bill Wiseman called me one day and asked if I had suggestions about a more humane way that inmates could be executed. This came on the heels of the Gary Gilmore execution [the first death row inmate to be executed after the Supreme Court lifted a four-year moratorium], which was a real media circus. Our feeling about it was that we put animals to death more humanely than we do people. … There was a doctor, Stanley Deutsch, who was an anesthesiologist, and he looked at this protocol. We also had a toxicologist in the medical examiner’s office with whom we consulted concerning the amounts of drugs that should be given. If the drugs were administered appropriately, there was not a single chance that any of these inmates could be aware of what was happening. People have the criticism of, Well, no testing has been done on these drugs. Well, now just what kind of testing do they want? Do they want someone to go out and take a bunch of prisoners and see how much it takes to execute or what? The idea of testing these drugs, it’s just a ridiculous notion as far as I’m concerned. … People who obviously were not prepared or trained sufficiently to administer the protocol, it would’ve been a much simpler thing to just administer a single drug. Laws are often enacted but get applied in ways that one would never imagine, and they have unintended effects. So never imagining that the drugs would not be administered appropriately, that’s the reason the protocol was set up as it was. One drug would certainly have been sufficient, and the thiopental would’ve been the drug. … With the things that have happened, it seems to me that in virtually every [botched] case that I have ever read about, it was a problem with the carrying out, the people who had administered the drugs and so forth. … If it’s administered correctly. I don’t see anything that is more humane. … The only reason I got involved was at the request of the legislator who was interested in a more humane method of execution, and this is what I suggested. And at the time when I suggested it, I had no idea, not in my wildest flight of fancy would I have ever thought that it would’ve mushroomed into what it did.” (Sanburn.)
Even after having his name attached to nearly every botched execution in modern times, Chapman still retains the belief that there is not a more humane way to carry out a death sentence – at least not when the protocol is followed and the procedure is done correctly. By this argument, the utilization of lethal injections to carry out a death penalty is certainly more humane than methods used in the past, and would most likely fall far outside the realm of cruel and unusual punishment.
Each opinion presented by the experts in both the legal field and the ethical one has proven their points rather solidly. The electric chair has the lowest rate of botched executions, while lethal injections have the highest. However, the electric chair is also generally perceived as being more painful, and therefore fits the bill of cruel and unusual punishment much more fully than lethal injections. Sarat had the most compelling argument, seeing as he had actual numbers to back up his claims and numbers don’t lie. Even though there is some evidence that the electric chair is the more painful way to go, when things go according to plan, it doesn’t quite meet the qualifications for cruel and unusual punishment, particularly considering that these days, the electric chair is only used at the prisoner’s request or when the drugs for lethal injection are unavailable. If a prisoner is given the right to choose and they decide they would rather be electrocuted than given a lethal injection, then can it really be argued that the use of the chair constituted cruel and unusual punishment? Given that the courts and the majority of the public have ruled that the death sentence in and of itself is not cruel and unusual, there is no reason to believe that the method by which the convict chooses to die can be determined to be cruel and unusual. When taking the difference in botch rates into account, it isn’t hard to imagine an inmate opting for the electric chair in place of the injection. Some people would rather endure a little more pain in exchange for more confidence that the procedure will not end in undue pain and suffering.
On the other side is the matter of lethal injections and whether or not they fall under the category of cruel and unusual punishments. When it came to this issue, Dr. Chapman, as the creator of the original lethal injection cocktail, provided the most compelling argument for the case and he would the person most familiar with the procedure and the injection itself. The original cocktail he created, when administered correctly, proved to be a humane and painless way execute condemned criminals. Keeping this in mind, under ideal circumstances, there is nothing about this method that could be considered cruel and unusual. However, drug shortages are making the drugs for an ideal execution harder and harder to find, dropping the number of executions under ideal conditions down. This experimental phase where new combinations are being tested without being able to fully anticipate the results, could certainly constitute cruel and unusual punishment on it’s own. There is also the added issue that medical professionals are not the ones administering the injection, making mistakes more common. With all of these factors in mind, it is clear how the argument against the use of lethal injections started to gain momentum.
To be honest, I hadn’t really looked into the different methods of execution before starting in on this project, so in a way it is hard to tell whether my views on the issue have been changed or not. Before this, I had only come to the personal conclusion that capital punishments in general were not cruel and unusual. I do, however, have to agree with the notion that the electric chair is not an example of cruel and unusual punishment, at least not in the way that it has been put into practice in recent years. Were it a constant requirement as opposed to an option, then I would likely see the electric chair as a cruel and unusual punishment, however with the new found knowledge of the botch rates for both methods of execution and how the electric chair is used today, I do not see it as cruel and unusual. With an era of experimentation being forced onto lethal injections, it is hard to say if, at this point in time, the use of lethal injection drugs is an acceptable method of execution. The use of experimental combinations of drugs has lead to an increase in the number of botched executions. These mistakes and failed experiments end in undue pain and suffering, which makes it hard to believe that, in it’s current state, lethal injections are fully outside the realm of cruel and unusual punishments.
The debates on both of these methods and their status as cruel and unusual punishments will likely rage on for years to come, with more and more discoveries, statistics, and alternatives undoubtedly coming to light as society progresses and works to create a perfect system of justice and punishments. There are perfectly valid points to each side of the argument- injections are meant to be painless, but have a higher botch rate, while electrocutions have the lowest botch rate, but are known to cause more pain. These arguments will likely change and mature, as will the definition of cruel and unusual punishment. Arguments such as these are ultimately what push society forward, however, and move us to a more just and humane justice and punishment system.
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“Cruel and Unusual Punishment.” N.p., n.d. Web. <http://legal-dictionary.thefreedictionary.com/Cruel+and+Unusual+Punishment>.
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Watkins, Tom. “Family, Experts: Ohio Execution Snafu Points to Flaws in Lethal Injection.” CNN. Cable News Network, 19 Jan. 2014. Web. 0 May 2016. <http://www.cnn.com/2014/01/17/justice/ohio-execution/index.html>.