Term Paper on "Lethal Injection Is Constitutional as it Applies to the 8th Amendment Cruel and Unusual Punishment"

Term Paper 6 pages (2105 words) Sources: 6

[EXCERPT] . . . .

Lethal Injection Is Legal Under the Eighth Amendment to the Constitution

Death by lethal injection is what some people perceive as a response to the Eighth Amendment to the Constitution that forbids cruel and unusual punishment in America's justice system. Lethal injection replaced the flawed electric chair, which replaced hanging, both of which were fallible because they sometimes left the individual living and having to be re-executed. The electric was known to have malfunctioned, and it burned its victims to death in a drawn out and agonizing way. Then, in 1977, the State of Oklahoma introduced death by lethal injection, and in 1982 the State of Texas was the first state in the union to execute an inmate by lethal injection (Bedeau and Cassell, 2004, p. 20). Since that time, of course, the State of Texas has put numerous individuals to death by lethal injection, and a number of other states have executed inmates by lethal injection. Proponents of the death penalty claim that it meets the language of the Eighth Amendment because it does not involve bodily mutilation, disfigurement, or that it causes a delay in the administering of the penalty, and that it is odorless, and that the subject is rendered incapable of feeling pain prior to the lethal injection that brings on cardiac arrest (p. 20). There is opposition to this line of thinking and opponents of the penalty claim that it is indeed cruel and unusual punishment. To better understand the terminology, "cruel and unusual," as it is stated in the Eighth Amendment, we will examine the exact language and analyze death by lethal injection to determine if in fact it complies with or defies the language, the intent behind the language, of the Eighth Amendment.

The Eighth Amendment

Justice Learning, found online at: http://www.justicelearning.org/justice_timeline/Amendments.aspx?id=8,explains this about the language of the Eighth Amendment:

The better-known component of the Eighth Amendment is the prohibition against cruel and unusual punishment. Although this phrase originally was intended to outlaw certain gruesome methods of punishment -- such as torture, burning at the stake, or crucifixion -- it has been broadened over the years to protect against punishments that are grossly disproportionate to (meaning much too harsh for) the particular crime.

Except for a brief period in the 1970s, the death penalty has not been considered by the U.S. Supreme Court to be cruel and unusual punishment. As a result, Eighth Amendment challenges to the death penalty have focused on the methods used to carry out executions, whether certain offenders (for example, juveniles or the mentally retarded) should be subject to the sentence and whether death sentences are decided in a fair manner and by an impartial jury.

It is not just criminal sentences themselves that are subject to the cruel and unusual test; the Eighth Amendment's cruel and unusual provision has been used to challenge prison conditions such as extremely unsanitary cells, overcrowding, insufficient medical care and deliberate failure by officials to protect inmates from one another (2008, NPG)."

One of the most remarkable things about our Constitution is that it has survived its makers by these many hundreds of years were it not for the fact that it was fluid, a living document, subject to the interpretation of the intent of the forefathers in modernity. The language of the Eighth Amendment is simple, and it reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (Cornell University Law School, 2008, the U.S. Constitution, Eighth Amendment, found online at (http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentviii).

It leaves to the interpretation of the cou€rts, the Supreme Court, the intent and meaning of the language. The Justice Learning site suggests that it was with that which was deemed by the forefather as cruel and unusual punishment in the form of crucifixion, burning at the stake and torture. What we see in the intent behind the law is the forefather's determination that common practices of execution that they had in their own lifetime probably witnessed were deemed by them as cruel and unusual. It suggests that the forefathers found any death that was other than natural to be unusual in nature, and therefore, cruel.

James J. Brennan (2004), writing for the Journal of Criminal Law and Criminology, says this about the forefathers' language of the Eighth Amendment:

The language of the Eighth Amendment can be traced back to the English Declaration of Rights of 1689. (12) However, commentators dispute what punishments were barred under the English Declaration of Rights. (13) in addition, commentators dispute how Americans interpreted the text of the Eighth Amendment when they adopted it in 1791 (p. 551)."

In other words, the forefathers have left it up to their descendants, the American people and legal system to interpret, perhaps forever debate the language of the Eighth Amendment.

There is the argument, too, that there is nothing usual about injecting a person with dose of substance that renders that person in a state of paralysis, unable to feel anything, no pain, no touch, no sensation; and then to inject the person with a second dose of substance that brings on cardiac arrest. All the while the person's mental capacity and ability to comprehend what is happening to them is in tact, and he or she is in a mentally alert or lucid state. Rendering the body incapable of feeling pain does not alleviate the torture of the mind.

The intent of the forefathers was to outlaw that which they deemed cruel and unusual as a punishment; and in today's world we deem spanking a cruel and unusual punishment, but we do not come together in consensus on the issue of death by lethal injection.

For those people who hold that death by legal lethal injection is not, according to the Eighth Amendment to the Constitution illegal, cruel and unusual punishment, the definition of cruel and unusual punishment takes on a meaning for them that is not consistent with the experience of the person sentenced to die. It is a mentally tortuous state, and the language of the Amendment does specifically address torture.

Proponents of the death penalty might argue that the language of the Eighth Amendment does not address the death penalty at all; and for that reason, it would fall to the states to enact on a state by state basis the penalty for extremely heinous crimes and for the murder of police officers (which in most states is automatically a death penalty). The language specifically states "punishment," an act based on wrongful action. While the term "penalty" infers a loss of something; points, money or the "punishment" by law. It is the language of the Constitution that has allowed it to survive, and the analysis and interpretation of each and every word with the consideration of what was the intent of the forefathers.

The language of the Eighth Amendment represents the forefathers' interpretation of cruel and unusual at that point and place in history and time. At this point and place in history in time most people hold that to harm another individual is wrong. Modern society holds that an individual's body belongs to the individual, and trespass by another individual of a person's body is forbidden.

Brennan says:

Historians only note two references to the Eighth Amendment during the proposal and adoption of the Federal Bill of Rights. (29) in both cases, the references refer to kinds of punishments, not proportionality. (30) Thus, most commentators believe the American Framers only meant to forbid cruel types of punishment under the Eighth Amendment. (31) However, some commentators note that Americans believed they retained the same rights as English citizens, including the English common law prohibition against excessive prison sentences. (32) They argue that these debates merely indicate that Americans wanted to extend the "Cruel and Unusual Punishments" Clause to include the harsh punishments they experienced under English rule (p. 551)."

The Supreme Court

As the highest court of the land, the Supreme Court has ruled time and again on the issue of the death penalty that it lies within the domain of the individual states to impose the penalty of death, and that they are free by way of the Constitution to elect that form of finality or punishment. However, the Supreme Court does see the execution of anyone who is under the age of 18 years of age at the time that they commit a heinous crime, to be cruel and unusual punishment (Adelman, 2005, p. 58).

Since the 1972 landmark case of Furman v. Georgia, (1) numerous Supreme Court cases have considered whether the imposition of the death penalty, either absolutely or under certain circumstances, may violate this Eighth Amendment prohibition. Roper v. Simmons, (2) decided March 1 of this year, prohibits the execution of offenders who were under the age of 18 when their crimes were committed. This decision overrules the Supreme Court's own prior decision 16 years earlier in the case of Stanford v. Kentucky, (3) and continues the court's recent trend to narrow… READ MORE

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