The 1960s brought challenges to the presumed legality of capital punishment in the United States. Before then, the Constitution was interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a “cruel and unusual” punishment and, therefore, unconstitutional under the Eighth Amendment. Although it’s legal in more than half of U.S. states, death penalty challenges are common and the issue remains divisive.
In 1958, the Supreme Court decided in Trop v. Dulles, that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.” Although Trop wasn’t a death penalty case, abolitionists applied the Court’s logic to executions and maintained that the United States did indeed progress to a point that its “standard of decency” should no longer tolerate the death penalty.
Subsequently, in the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered. In 1968, the Court heard two cases which dealt with prosecutorial and jury discretion in capital cases. In U.S. v. Jackson, the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury.
The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they wouldn’t receive a death sentence.
In Witherspoon v. Illinois, the Supreme Court maintained that a potential juror’s reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that their attitudes toward capital punishment would prevent them from making an impartial decision about the punishment.
In 1971, the Supreme Court twice addressed the problems associated with the role of jurors and their discretion in capital cases, in Crampton v. Ohio and McGautha v. California (consolidated cases).
The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence.
The Court rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was “beyond present human ability.”
Although lethal injection has commonly been associated with a more-humane approach to executions, many have challenged this assertion. This method typically employs three kinds of drugs in a specific order: a barbiturate that renders the prisoner unconscious, followed by a paralyzing agent, and finished with a drug that stops the heart. The manufacturers of some of these drugs have stopped supplying them in response to pressure from activists, resulting in shortages.
But there also have been court challenges to these substances, midazolam in particular. The drug is usually the first one administered and is supposed to block the pain caused by the second and third drugs — but attorneys for Tennessee death row inmate Billy Ray Irick argued to the Supreme Court in 2018 that the state’s three-drug cocktail “will cause him to experience sensations of drowning, suffocating, and being burned alive.”
The Court denied his request for a stay of execution, which was brought by 32 prisoners on Tennessee’s death row, but this issue may come up again in the future.
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