“Are you saying that there are circumstances under which burning someone alive would be constitutional?”

Justice Samuel Alito asked that question to Robin Konrad, the Assistant Federal Defender arguing against the current protocol, which Oklahoma and a number of other states use to carry out the death penalty.

For most of the history of the United States, the death penalty has been legal at least in the case in the case of certain crimes. We find ourselves at a potential turning point when it comes to the death penalty in the United States.  The constitutionality of capital punishment is determined by the eighth amendment to the United States constitution.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” 

The Supreme Court addresses capital punishment by determining what, is cruel and unusual punishment.  Capital punishment jurisprudence breaks down into three categories, 1) What crimes are worthy of execution 2) Who can be executed 3) What are acceptable means of carrying out that execution.  Over the course of this article we will address the evolution of these three questions.  Then we will analyze the current, rapidly changing landscape of capital punishment, including states which have abolished capital punishment, states which have instituted moratoria, and those that have moved to re-authorize previously discarded methods of capital punishment.




What Crimes Are Worthy Of Execution?

Throughout the history of the United States the list of crimes which are worthy of capital punishment has changed significantly.  In colonial times, crimes such as “striking one’s parents”, and “denying the one true God” were punishable by death.  Famously rustling cattle was at one point punishable by hanging.  For much of our history rape, kidnapping, and treason in addition to murder were crimes that merited the imposition of capital punishment.  The list of crimes that are punishable by capital punishment has grown shorter and shorter over time.  Now capital punishment is limited primarily to crimes where a death has occurred, and generally even then only when the crime was especially gruesome, or where multiple deaths are involved.  That change in when the death penalty can be applied is commonly referred to as “evolving standards of decency.”  This standard came about in Trop v. Dulles in 1958.  While it was not a death penalty case, the language of evolving standards of decency was quickly adopted in capital punishment jurisprudence, and has been used in many cases by the Court.  We will discuss this theory’s effects on who can be sentenced to capital punishment in a later section.

At this time there are two very well known capital cases in the news, the capital sentence of Dzokhar Tsarnaev, and the trial of James Holmes (the Aurora Theater shooter.)  In both of these cases, the crimes are particularly barbaric and created a spectacle.  These are the poster cases for capital punishment, killings of multiple people where the killer survived (and pleaded guilty.)  The modern standard of decency has evolved to the point where crimes, which result in the death of one or more people, are eligible for capital punishment.[1]  Treason and the hijacking of an airplane are still considered death eligible in most if not all jurisdictions, there have not been any cases challenging the constitutionality of these provisions.  The last documented execution for treason was in 1862 John Conn was executed by the Confederacy for treason.  The Rosenbergs, were executed in 1953 for espionage.  I am not aware of any executions for hijacking an airplane, presumably because the hijackers did not survive, or they landed in a foreign country.  Just as the range of so called capital crimes has narrowed over time, so have the categories of defendants who are eligible for capital punishment.

Who Is Eligible For Execution?

This is where the Supreme Court has been most active since re-instating the death penalty in 1976, after a four year moratorium.  In determining eligibility for the death penalty, the Court has developed three main criteria.  The most significant criteria is the culpability of the individual.  Culpability goes beyond merely if they are guilty of the crime for which they were convicted.  That has already been determined by the trial court.  This is a more in depth question of how well did they truly understand what they did, and what it means to take the life of another person.  Here again, evolving standards of decency play a role in determining what category of person is eligible for the death penalty.  This evolution is most clearly visible when it comes the age of those sentenced to death.  Maryland was the last state to execute a prisoner who was under eighteen at the age of execution.  Leonard Shockley was seventeen on April 10, 1959 when he died in the Maryland gas chamber.[2]

In 1988 the Supreme Court heard the case, Thompson v. Oklahoma, where the imposition of the death penalty on a fifteen year old was challenged based on the failure of the trial court to properly instruct the jury as to the mitigation of Thompson’s age on his culpability.[3]  The Supreme Court found that the imposition of the death sentence on a juvenile under the age of 16 was in violation of the 8th Amendment prohibition on cruel and unusual punishment.  The Court looked to both science and the actions of states who do allow capital punishment.  The Justices found that there was diminished culpability on the part of a juvenile, because the juvenile brain is still developing, and that all other states confronted with the question of a minimum age for the imposition of the death penalty have decided that crimes committed by persons under sixteen were not eligible for the death penalty.

The Court again confronted the question of the minimum age at the time of commission of a crime should be eligible for execution in Roper v. Simmons (2005).[4]  Roper was challenging the constitutionality of imposing the death penalty on a juvenile.  Roper rested his challenge on the lack of moral culpability on the part of a juvenile, because they are still maturing, and their brains are not sufficiently formed to develop sufficient culpability and maturity to be eligible for the death penalty.  They also cited the fact that a consensus had developed among the states, that execution of juveniles was no longer allowed in the majority of states.  Roper also emphasized the fact that execution of juveniles was no longer common in western countries, or in the world as a whole.  Fifteen years prior the Supreme Court had found that there was not a sufficient consensus among states to find that the evolving standards of decency in our society had determined that capital punishment was cruel and unusual in violation of the 8th Amendment.[5]  Between 1989 and 2005 the national and international landscape had evolved sufficiently that the Court agreed with Roper, and found that the execution of a juvenile was cruel and unusual under the 8th Amendment, and therefore unconstitutional.  Roper was one of the first 8th Amendment cases where the Court looked explicitly to legal practices outside of the United States to determine if a punishment was cruel or unusual.

How May Capital Punishment be Carried Out?

The most common means of carrying out executions is to use lethal injection.  This is generally by using a three-drug cocktail, a painkiller, a paralytic, and potassium chloride.  The Supreme Court authorized execution by lethal injection in Harvey v. Chaney, 1985.  They stated that the use of a pain killer sufficient to induce a coma, and a paralytic to prevent the convict from thrashing about were required to ensure that lethal injection was neither cruel nor unusual. Recently this three drug protocol has been increasingly difficult to implement as the first drug in the protocol has become unavailable.  Initially states used Sodium Thiopental as the painkiller drug which would allow the remaining drugs to be used without causing undue pain.  After a public relations campaign by those opposed to capital punishment the companies who manufactured the drug stopped making it available for use in executions.  States then turned to Pentobarbital, another painkiller which has the ability to put a prisoner into a coma state where they would not feel the extreme pain which the next two drugs inflict.  However, when the company which manufactured pentobarbital was purchased by a european drug manufacturer, they stopped selling it for the use of executions, as required by european regulations.  Using drugs for executions is complicated as it goes against the hippocratic oath to do no harm.

The unavailability of these drugs has led states to try out different methods and drugs.  Oklahoma along with a number of other states has been using Midazolam as the pain killer in the protocol.  Midazolam is a controversial drug to use, as it may not be as effective as the earlier drugs.  There have been some notable issues with its use. Clayton Lockett was to be executed using Midazolam as the pain killing agent.  The execution team had a very difficult time finding a suitable vein for them to administer the drug, but finally found one.  Lockett appeared to be in a coma like state, but as the last two drugs were being administered he began to mumble, and shake in pain.  After 33 minutes the execution was stopped.  Ten minutes later Lockett was dead anyway.  From a heart attack rather than the drugs.

This high profile miscue, along with others led three inmates on the Oklahoma death row to challenge the constitutionality of the use of Midazolam in executions.  Inmates were not the only parties to react to concerns about Midazolam.  A number of states began authorizing, or in some cases re-authorizing other methods of execution.[6]  Utah for instance re-authorized the use of the firing squad as a backup means of execution should lethal injection become unavailable.[7]  There Delaware, New Hampshire, and Washington state have hanging as their backup method.  Five states allow for the gas chamber as a backup method, including Oklahoma.  Eight states allow for electrocution.  The court has not banned means of execution as unconstitutional.  States have merely moved to what are perceived as more humane methods of execution.[8]  Electrocution was seen as gruesome since the inmate would convulse and there were times when it would take a long time to complete the execution.  Gas chambers were generally shunned as being too reminiscent of means of execution used by the Nazis.  Lethal injection is seen as a more “medical” method.

Recently the Court ruled on the claims in Glossip v. Gross, 576 U.S. (2015).  The Court upheld the use of Midazolam as an acceptable part of the protocol.  They did this only in part because they did not find that the evidence that Midazolam did not sufficiently guard against the pain of the following drugs.  The more interesting, and perhaps troubling foundation of the decision is what seems to be backwards reasoning based in Baze v. Rees, 553 U.S. 35 at 47.

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”      

This reasoning makes it impossible to find capital punishment unconstitutional, it is in direct conflict with the “evolving standards of decency” line of cases.  Glossip, has delivered a serious blow to attempts to get the Supreme Court to find capital punishment unconstitutional.


The Abolitionist Movement

While the Court has loudly proclaimed that it will not overturn capital punishment, the states have been less rigid on the issue.  We can divide the states into three categories, states which allow the death penalty, states which have abolished the death penalty, and states with a de facto moratorium on the death penalty.

The list of states which have abolished the death penalty has grown over the last few years.  There have been seven states which abolished the death penalty since 2007.  There are now 19 states which do not have an enforceable death penalty. The most recent additions to the list are Maryland, in  2013, and Nebraska in 2015.

Perhaps more cruel than maintaining capital punishment is having a moratorium on it, especially when that moratorium is simply on execution, and not on sentencing defendants to death.

[1] In 1988 Congress in response to contrary Supreme Court rulings passed the Drug Kingpin Act, which made high level drug dealing death eligible.  In 1994 Congress again passed legislation, in an effort to roll back Supreme Court rulings made 50 federal crimes death eligible.  There have not been any executions under these laws, so the constitutionality of these provisions have not been determined by the Supreme Court.

[2] Defendants were convicted of murder in the first degree and from a judgment of the Circuit Court for Dorchester County, W. Laird Henry, Jr., C. J., Rex A. Taylor, and E. McMaster Duer, JJ., the defendants appeal. The Court of Appeals, Henderson, J., held that the evidence sustained convictions as against both defendants.

Shockley v. State, 218 Md. 491, 148 A.2d 371 (1959)


[3] After noting that the Eighth Amendment’s prohibition against “cruel and unusual punishments” applied to the states through the Fourteenth Amendment, the Court held that the execution of a person under the age of 16 was unconstitutional. In noting the uniform ban among all relevant state statutes against the execution of one under the age of 16, the Court explained that such an act would violate the “evolving standards of decency that mark the progress of a maturing society.” The case was reversed and remanded Thompson v. Oklahoma, 487 U.S. 815 (1988)

[4] Roper v. Simmons, 543 U.S. 551 (2005) Roper challenged his death sentence after the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2001) (Determining that execution of persons with mental disabilities violated the 8th amendment.)

[5] Stanford v. Kentucky, 492 U.S. 361 (1989) J. Scalia writing for the court stated that there was insufficient consensus among the 37 states which allow the death penalty to find that juveniles under 18 should be ineligible for the death penalty.

[6] All states which allow capital punishment have lethal injection as the primary method, or allow the inmate to choose lethal injection or another method (either the gas chamber or electrocution, depending on the state.)

[7] Oklahoma also allows the firing squad if both lethal injection and electrocution are not available. (http://www.deathpenaltyinfo.org/methods-execution) accessed July 3rd 2015

[8] Glossip v. Gross, 576 U.S. at 3 (slip opinion)(2015), Citing Baze v. Rees, 553 U.S. 35 (2008)  The last person to be hanged was in 1996, William Bailey in Delaware. The firing squad was last used in 2010 for Ronnie Lee Gardner in Utah, and the gas chamber was last used in Arizona in 1999 for Walter LeGrand.