April 29, exactly one year after Oklahoma’s infamously botched execution of Clayton Lockett, the Supreme Court heard Glossip v. Gross, involving three Oklahomans on death row whose counsel argued the constitutionality of the drug cocktail used in lethal injections. Seven years ago, in Baze v. Rees, the Court held the three-drug combination did not constitute cruel or unusual punishment. However, as pharmaceuticals have become scarce, states’ experimentation with drug combinations and apparent failure of the initial sedative to induce coma while the second and tertiary drugs stop the heart, have led to botched executions in several states, including Ohio. While the Court decides whether this specific method is cruel or unusual by the Eighth Amendment, there is no discussion of the constitutionality of capital punishment itself. This quagmire highlights, once again, that there is no right way to do a wrong thing.
The Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” There is no more excessive fine than death. Even if unrepentantly evil, life is the absolute most a capital offender can give. Further, the death penalty is undeniably cruel. It is the only irreversible punishment handed down by our government. In 1958, the Supreme Court forbade punishment by revoking a natural-born citizen’s citizenship. So, even convicted capital offenders are U.S. citizens and, as such, should have a right to the possibility of exoneration until their natural death. Surely, the fundamental right to a fair trial implies the right to a possible retrial, whenever it may (or may not) come. Frequent death row exonerations validate the importance of this right.
Because this right is inalienable, a person, no matter how reprehensible, should not be executed for a capital crime because it arbitrarily occurred in a certain state (or, as is often the case, a specific county within that state). The 14th Amendment, guaranteeing equal protection under the law and the backbone of Brown v. Board of Education and Roe v. Wade, surely applies to such criminals. As it seems unlikely Washington D.C. and the other 18 states that have abolished the death penalty will anytime soon resume executing prisoners, equal protection demands capital punishment’s abolishment in the remaining 32 states. Public opposition is growing. Indeed, a month ago, The Boston Globe called on the federal government to spare Dzhokhar Tsarnaev the death penalty — the man who, with his brother, brought that city to its knees.
True, the framers of the U.S. Constitution did not intend the language of the Eighth Amendment to forbid capital punishment. In fact, the Fifth Amendment intimates the validity of capital punishment if by due process of the law. But, the framers also included no language forbidding slavery (enter, the Fourteenth Amendment). In 1958, former Justice Earl Warren said, “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Fourteen years later, responding to the Court’s ordering a national overhaul of the death penalty, then-Justice Thurgood Marshall opined, “In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve ‘a major milestone in the long road up from barbarism’ and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.”
Between 2007 and 2012, China, Iran, North Korea, the U.S. and Yemen executed the most prisoners. The United States is the only G7 country that uses the death penalty. Only 18 percent of all nations retain the death penalty in law and practice. Belarus is the only European nation that does so. April 29, Hungary called upon the European Union to debate reintroduction of the death penalty, the abolishment of which is necessary for EU membership. According to the BBC, “The Council of Europe said the return of the death penalty would be ‘contrary to the values that Europe stands for.’” Also on the 29th, Australia, which abolished the death penalty in 1967, expressed outrage and removed its ambassador from Jakarta after Indonesia executed two Australians convicted of drug smuggling. Excluding Saint Kitts and Nevis (population: 56,000), the U.S. is the only country in the Americas that carries out capital punishment
Society is maturing, but it is not being led by the U.S. So often, the arrogance of isolation and abundance makes U.S. citizens believe beyond the shadow of a doubt the U.S. leads the world in every conceivable dimension. This blind egoism allows our culture to “rot,” as diagnosed but not understood by Justice Antonin Scalia, who uses the rot-versus-mature argument to justify his originalist stance (specifically, to reject interpretation of the word “unusual” in the Eighth Amendment). However, if we consider the sinister company we keep as one of the few global executioners and the tide of death penalty abolishment sweeping the globe, we must realize society has matured and left us behind, our hands bloodied with botched executions and a system that, by design, makes mistakes.
And, conservative friends, sometimes wont to call for an eye for an eye, let us remember what Jesus Christ said immediately after sparing a capital criminal her death sentence: “Let whoever is without sin cast the first stone.”