What is cruel and unusual punishment? Does the definition of cruel and unusual punishment change with time and changing social mores? Does the determination of whether or not a punishment is cruel and unusual depend on the crime committed, the criminal being punished, or both? These are all very important questions, which must all be examined before one can determine whether or not capital punishment is cruel and unusual punishment.
Cruel and unusual punishment is a difficult term to define, as it depends on the values and mores of the defining society. The prohibition against cruel punishment basically means that the punishment should fit the crime. For example, determining when death is an appropriate issue has been one of the complicating factors in the death penalty debate. Historically, the death penalty was previously available for a variety of crimes, ranging from theft of property to murder. In contrast, today the death penalty is applied only to murders, and usually only those murders that are considered especially heinous, because of premeditation, level of violence, or choice of victim. The prohibition against unusual punishment is more difficult to define. A punishment is considered unusual when it is outside of the normal range of punishments or when it inflicts an inappropriate measure of pain. Therefore, certain methods of inflicting death, such as electrocution and hanging, have been found to violate the prohibition against unusual punishment.
However, even when one looks at the current Supreme Court limitations on the death penalty, there is considerable opposition against the death penalty in other Western societies. Not only is the United States in the minority among Western societies for having the death penalty, but this position has also created international conflict, especially when the United States has sought extradition of a criminal from a country that opposes the death penalty. Given that the United States differs from other countries in this view, combined with the fact that not all states have a death penalty, the question arises whether or not it is permissible for a state to punish a defendant with death. Part of the power of being sovereignty is the power of death. This power is not limited to the death penalty, but is also encompassed within the power to wage war and conscript soldiers. However, a state must consider when it is appropriate and inappropriate to end a person's life and whether the state has the power to make that decision about individuals. The answer to this is based on individual morals and religious views, and whatever decision a state makes, there are going to be people in that state whose views are not represented by that decision. Does a state have the political power to put a defendant to death? Absolutely. Does a state have the moral power to put a defendant to death? Each individual has to answer that question for himself.
Of course, one cannot discuss whether or not the death penalty constitutes cruel and unusual punishment without first discussing the view of the United States Supreme Court on capital punishment. The Supreme Court has found that, under certain conditions, the death penalty does not violate the Constitutional prohibition against cruel and unusual punishment. However, the Court also states that "death is different," in that death is an irrevocable sentence (Woodson v. North Carolina, 305). Furthermore, the Supreme Court has previously decided that, as applied, the death penalty was unconstitutional, and placed restrictive bans on the imposition of the death penalty until states could fix the errors in their capital punishment statutes. Therefore, a determination of whether or not capital punishment is Constitutional depends on an analysis of whether or not those errors have been fixed.
In order for any punishment to escape the prohibition against cruel and unusual punishment, it must be applied fairly and consistently ("Scattered Justice"). All applicable research indicates that the death penalty is applied in an inconsistent manner. The most troubling inconsistencies are presented by the fact that minorities are disproportionately likely to receive the death sentence. Male defendants are more likely to receive the death sentence than female defendants. In addition, there are geographic disparities in the application of the death sentences, even among those jurisdictions that impose the death sentence. Finally, like minorities, the poor disproportionately receive capital punishment.
A superficial look at the issue of race and capital punishment gives one an inaccurate view of the death penalty. There are more whites than minorities currently serving on death row. However, this view is quickly dispelled; there are simply more whites than minorities living in the United States, and more whites than non-whites committing murders. When one looks at the percentages of minorities who are tried for murder and receive the death penalty vs. The number of whites who are tried for murder and receive the death penalty, it is revealed that "both the historical and the current imposition of the death penalty in this country are racially discriminatory" (Blume, Eisenberg, & Johnson, 1774). Furthermore, racial discrimination exists at two levels in the imposition of the death penalty; not only are minority defendants more likely to receive the death penalty, but so are those who have murdered white victims. Therefore, not only are criminal defendants treated differently by the law based on their racial background, but so are murder victims.
While race is an important predictor of whether or not a defendant will be sentenced to death, it is not nearly as predictive as a defendant's class status. Poor defendants cannot afford private counsel, and therefore must rely on court-appointed counsel for representation. The fact is that many court-appointed attorneys are not trained for and cannot handle the complexities of a capital trial. In other criminal trials, the issue is guilt or innocence, but capital trials require considerations of mitigating circumstances, future dangerousness, and remorse. This means that poorly represented defendants, who are likely to be financially poor, are disproportionately sentenced to death. In addition, once sentenced, it is extremely difficult for a poor defendant to successfully appeal a death penalty. There are limitations on what type of appellate counsel a state is required to supply under the Constitution. Furthermore, appellate standards favor the status quo, so defendants face substantial hurdles in the appellate process, even if they have access to appellate counsel.
In addition, there is a tremendous gender disparity in the application of the death penalty. Men are much more likely to receive a sentence of death. Even more troubling is the fact that women, even when they receive a death sentence, are not likely to be executed, while men are. For example, when Karla Tucker was executed in Texas in 1998, it was the first execution of a female in Texas in over 100 years, and the first woman executed in the United States since 1984. Furthermore, her execution was vigorously protested, even by those who typically support the death penalty, despite the fact that she committed an extremely heinous and violent crime and made statements that doing so gave her tremendous sexual satisfaction.
Finally, the death penalty is sought and applied at different rates in the jurisdictions that have the death penalty. Some of these differences can be accounted for by looking at the racial and class makeup of those jurisdictions, but the results are actually counterintuitive because "suburban counties with lower murder rates than urban counties send more murderers to death row" ("Scattered Justice"). This may be explained by the fact that those who murder white victims are more likely to receive a death sentence and that the suburbs are disproportionately composed of whites. Whatever the explanation, the fact remains that disparities in the frequency that the death sentence is sought and obtained exist in both state jurisdictions with the death penalty and in the federal system. The fact that two identical crimes, committed in the same jurisdiction, with the same mitigating and aggravating circumstances, can result in two different punishments means that the imposition of those punishments is arbitrary. When the punishment discussed is death, the fact that the choice of punishment is arbitrary is not only constitutionally troubling under the Fourteenth Amendment, but absolutely prohibited by the Eighth Amendment.
Given that the imposition of the death penalty depends upon the race of the perpetrator, the race of the victim, the defendant's social class, and the geographical location of the murder, it is clear that the death penalty is imposed in an arbitrary and capricious manner. In order to escape the Constitutional prohibition against cruel and unusual punishment, the death penalty must be applied in a non-arbitrary and consistent manner. Furthermore, the Fourteenth Amendment guarantees equal protection under the law. In this manner, even though the Supreme Court continues to uphold the rights of the states and the federal government to impose the death penalty, the death penalty, as applied in the United States today, violates the letter and the spirit of the United States Constitution.