Dear Readers, In Baze v. Rees, the United States Supreme Court recently approved Kentucky’s method of execution pursuant to its death penalty scheme. This is just the latest chapter in our struggle to have a just method of exacting capital punishment for those deserving this ultimate sanction. The early history of the death penalty in America is ugly. Until the Court broadened an accused’s rights, in a series of ground-breaking opinions starting in the 1960s, an accused had very few rights.
Consequently, with judicial imprimatur, the roster of those executed are tainted by the stink of racially or immigrant-phobic juries. These black marks on our justice system caused courts and legislatures to adopt reforms; in some cases, the death penalty was abandoned altogether.
In the modern era, the Court first considered the legitimacy of the death penalty in 1972. Judicial intervention or review was balanced against the 8th Amendment’s prohibition against “cruel and unusual punishment.”
In the case of Furman vs. Georgia, the Court struck down Georgia’s death penalty scheme, in part, because the statute granting absolute discretion to a judge or jury may have resulted in it appearing that the death penalty was more likely to be handed down to blacks over whites. No decision was reached on the constitutionality of the death penalty in all cases.
Four years later, in 1976, the Court considered Georgia’s new, revised death penalty scheme in Gregg v. Georgia.
The Court specifically held, for the first time in the modern era, that the death penalty was permitted under the Constitution.
In prior cases, the Court had ruled both electrocution and public shooting as legitimate forms of punishment under the 8th Amendment but that disembowelment, quartering, burning, and torture, were not.
In Gregg, the Court rejected the notion that “modern standards of decency” made the death penalty a “cruel and unusual” form of punishment. It found a long history, even back to our English law roots, permitting the use of the death penalty.
Interestingly, the Court did not find any statistical support for the theory that the death penalty has any deterrent effect. Ultimately, the Court ruled that Georgia’s “bifurcated” system (where a jury first decides guilt or innocence and then deliberates separately on whether or not to apply the death penalty, with a post-trial judicial override procedure) is constitutional. This opinion suggested a model for all statutory schemes.
Since then, the method of execution and the death penalty itself has come under attack, particularly in an attempt to limit the class of defendants eligible for execution, such as minors, mentally challenged, or insane defendants.
The most recent controversy was Kentucky’s lethal injection-method of execution, which is the method of execution used in every jurisdiction in the U.S. permitting some form of the death penalty (a minority of states also permit electrocution as an alternative, California permits lethal gas and Iowa permits a firing squad).
Because of this case, all executions nationwide were halted while it was being decided.
Concerns about the validity of lethal injection, however, proved unnecessary. The Court noted the potential for problems with execution, where the delivery of drugs was not in sufficient quantities to avoid possible painful suffocation, in the administration of the second and third drugs in the cocktail, but that mere possibility does not make the method unconstitutional.
Thus, death penalty sentences are once again being carried out. As I have discussed over the past few weeks, further debate on the wisdom of the death penalty as a sentencing option, particularly given its financial costs, will now also move forward . . . and that is a national discussion that will not be resolved easily.
Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County Chief Assistant District Attorney, and a former Miami Prosecutor. E-mail confidential legal questions to ajr@rockefellerlawcenter.com. Visit www.rockefellerlawcenter.com for Frequently Asked Questions and Jim’s blog, The Rockefeller Report.
