Revisiting the Eighth Amendment

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

An overview of the death penalty:

Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts both look for objective factors to show a change in community standards and also make independent evaluations about whether the statute in question is reasonable.

It is necessary to consider the method of execution:

A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. Courts apply an “objectively intolerable” test when determining if the method of execution violates the Eighth Amendment’s ban on cruel and unusual punishments.

There have been many botched executions. The latest:

Man dies of heart attack after botched execution

McALESTER, Okla. (AP) – An Oklahoma inmate whose execution was halted Tuesday because the delivery of a new drug combination was botched died of a heart attack, the head of the state Department of Corrections said.

Director Robert Patton said inmate Clayton Lockett died Tuesday after all three drugs were administered.

Patton halted Lockett’s execution about 20 minutes after the first drug was administered. He said there had been vein failure.

The execution began at 6:23 p.m. when officials began administering the first drug, and a doctor declared Lockett to be unconscious at 6:33 p.m.

About three minutes later, though, Lockett began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.

See also:

Oklahoma Botches Clayton Lockett’s Execution

McALESTER, Okla. (AP) — A botched execution that used a new drug combination left an Oklahoma inmate writhing and clenching his teeth on the gurney Tuesday, leading prison officials to halt the proceedings before the inmate’s eventual death from a heart attack.

Extracting portions from the Legal Information Institute above, if we combine this element:

Consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment.

With this one:

The manner may not inflict unnecessary or wanton pain upon the criminal.

Doesn’t it follow, arguably, that several botched executions involving multi-injection administrations has crossed the threshold ofevolving standards of decency to make a determination that the execution methodology that has – at least on various occasions – inflicted unnecessary or wanton pain, constitutes cruel or unusual punishment?

I suppose it is a matter of how many botched executions does it take to shock the conscience.

Would 3 percent cut it? Or, perhaps 7 percent? See:

What botched executions tell us about the death penalty

In American capital punishment, a grim history of technical failure

Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection. In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.

Sobering words by Austin Sarat, associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College:

After more than a century of trying, we have still not managed to find a way of killing that does not run the risk of violating our most important moral and constitutional commitments. It is possible to see this as simply a failure of ingenuity, one that might be solved by the next clever execution technique. But the story of America’s enforcement of the death penalty suggests another answer as well: that in practice, such a method simply does not exist.

The Huffington Post article dated April 29, 2014, above notes the following:

The apparent failure of the execution is likely to fuel more debate about the ability of states to administer lethal injections that meet the U.S. Constitution’s requirement they be a neither cruel nor unusual punishment.

And there was sufficient concern to prompt Governor Mary Fallin to order a stay of execution for another inmate:

Republican Gov. Mary Fallin ordered a 14-day stay of execution for an inmate who was scheduled to die two hours after Lockett, Charles Warner. She also ordered the state’s Department of Corrections to conduct a “full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution.”

Will it be “business as usual” after 14 days in “the only remaining Western nation with a death penalty?”

I wrote previously:

My prayer, notwithstanding, is that as long as capital punishment is sanctioned, executions be as humane as possible (if indeed, the word “execution” can be modified realistically by the word “humane”).

Capital Punishment Under Review Again



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