Is Capital Punishment Cruel and Unusual? A Legal Analysis

Defining Cruel and Unusual Punishment

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 a punishment is cruel and unusual depend on the crime committed, the criminal being punished, or both? These are all very important questions that must be examined before one can determine whether capital punishment constitutes 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 essentially means that the punishment should fit the crime. Determining when death is an appropriate penalty, for instance, has been one of the complicating factors in the death penalty debate. Historically, the death penalty was available for a wide variety of crimes, ranging from theft of property to murder. Today, by contrast, the death penalty is applied only to murders — and usually only those considered especially heinous due to 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 falls outside the normal range of punishments or inflicts an inappropriate measure of pain. Certain methods of execution, such as electrocution and hanging, have therefore been found to violate the prohibition against unusual punishment.

Even when one looks at the current Supreme Court limitations on the death penalty, there is considerable opposition to capital punishment in other Western societies. Not only is the United States in the minority among Western nations for retaining the death penalty, but this position has also created international conflict — particularly when the United States has sought extradition of a criminal from a country that opposes capital punishment. Given that the United States differs from most other nations on this question, and that not all U.S. states have a death penalty, the question arises whether it is permissible for a state to punish a defendant with death.

Part of the power of 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 or inappropriate to end a person's life, and whether it has the authority to make that decision about individuals. The answer depends on individual morals and religious views, and whatever decision a state makes, there will be people in that state whose views are not represented by it. Does a state have the political power to put a defendant to death? Absolutely. Does a state have the moral power to do so? Each individual must answer that question for himself.

The Supreme Court and Capital Punishment

One cannot discuss whether the death penalty constitutes cruel and unusual punishment without first examining the view of the United States Supreme Court on capital punishment. The 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 holds that "death is different," in that death is an irrevocable sentence (Woodson v. North Carolina, 305). The Supreme Court has previously ruled that, as applied, the death penalty was unconstitutional, and placed restrictive bans on its imposition until states could remedy the errors in their capital punishment statutes. A determination of whether capital punishment is Constitutional therefore depends on an analysis of whether those errors have been corrected.

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 stem from the fact that minorities are disproportionately likely to receive the death sentence. Male defendants are more likely than female defendants to receive a death sentence. There are also geographic disparities in the application of the death penalty, even among jurisdictions that impose it. Finally, like minorities, the poor are disproportionately subject to capital punishment.

Racial, Class, and Gender Disparities in Sentencing

A superficial look at the relationship between race and capital punishment gives an inaccurate picture. There are more white inmates than minority inmates currently on death row. This impression is quickly dispelled, however: there are simply more white people than minorities living in the United States, and more whites than non-whites commit murders overall. When one examines the percentages of minorities tried for murder who receive the death penalty versus the percentages of whites tried for murder who receive it, it becomes clear that "both the historical and the current imposition of the death penalty in this country are racially discriminatory" (Blume, Eisenberg, & Johnson, 1774). Moreover, racial discrimination operates at two levels: not only are minority defendants more likely to receive the death penalty, but defendants who have murdered white victims are also more likely to be sentenced to death. As a result, criminal defendants are treated differently based on their racial background, and so, in effect, are murder victims.

While race is an important predictor of whether 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 must rely on court-appointed attorneys for representation. Many court-appointed attorneys are not trained for — and cannot adequately handle — the complexities of a capital trial. In ordinary criminal trials the central issue is guilt or innocence, but capital trials additionally require careful consideration of mitigating circumstances, future dangerousness, and remorse. Poorly represented defendants, who are disproportionately poor, are therefore more likely to be sentenced to death. Once sentenced, it is extremely difficult for a poor defendant to successfully appeal a death penalty. The Constitution limits what type of appellate counsel a state is required to provide, and appellate standards favor the status quo, meaning defendants face substantial procedural hurdles even when they have access to appellate counsel.

There is also a significant gender disparity in the application of the death penalty. Men are far more likely to receive a death sentence, and even women who are sentenced to death are unlikely to be executed. When Karla Faye Tucker was executed in Texas in 1998, it was the first execution of a woman in Texas in over 100 years and the first execution of a woman in the United States since 1984. Her execution was vigorously protested, even by those who typically support the death penalty, despite the fact that she had committed an extremely heinous and violent crime and had made statements suggesting that doing so gave her sexual satisfaction. This episode illustrates the deeply uneven manner in which death sentences are carried out across gender lines.

Conclusion

Given that the death penalty has historically been, and continues to be, applied in a discriminatory manner, it violates the Constitutional prohibition against cruel and unusual punishment and the Equal Protection guarantee of the Fourteenth Amendment. Furthermore, even if one concludes that a state has the moral authority to impose the death penalty, doing so is not cost-effective. Finally, some of the goals cited by death penalty proponents are either inappropriate for the state to pursue or are actually undermined by use of the death penalty. For these reasons, it does not appear that the United States should impose the death penalty at this time.

Works Cited

Blume, John H., Theodore Eisenberg, and Sheri Lynne Johnson. "Symposium: Post-McCleskey Racial Discrimination Claims in Capital Cases." Cornell Law Review. Sept. 1998: 1771–1772.

"In Opposition to the Death Penalty: Deterrence." The Death Penalty. 2004. Michigan State University Comm Tech Lab and Death Penalty Information Center. 8 Nov. 2005 <

"The Economics of Capital Punishment." National Coalition to Abolish the Death Penalty. 2005. National Coalition to Abolish the Death Penalty. 8 Nov. 2005 <

"Scattered Justice: Geographic Disparities of the Death Penalty." American Civil Liberties Union. 2004. American Civil Liberties Union. 8 Dec. 2004 <

Woodson v. North Carolina. 428 U.S. 280 (1976).