Is the death penalty a problem for the courts or the legislature?

Question

This is a simple question targeted toward those who understand my point and question. I am not looking for someone's two cents about whether people should or shouldn't be killed, how, or for what reason. Regardless of your stance, I am trying to get a broader perspective on how and why the Supreme Court should or should not analyze the so-called "standards" of lethal injections (on a site with a much broader audience than say, Above the Law). Personally, I see it as a legislative question as opposed to a judicial one, but I'm curious as to what other lawyers or law students or legal scholars who happen to visit this site think and are willing to share.

With regard to the "cruel and unusual" analysis, I agree that it's through the 8th amendment that this gets in. But given that at the time of the signing of the Bill of Rights, the "usual" method of execution was with a noose, can the court really find that the current "usual" method of lethal injection invalid?

I'm more curious about (a) how they will frame the issue beyond a mere separation of powers analysis and a punt over to Congress to work on the problem; and (b) if they don't do this, how can they, with a straight face, frame this issue along the Roper/Atkins line?

I am hoping this question creates some meaningful debate, but I'm not holding my breath either. Thank you for your answers in advance.

The first answer is correct in some respects, but incorrect in its assertion that the Supreme Court has never dealt with this issue. My question is more with how the Court can say lethal injection is or is not "cruel and unusual" without overstepping its Article III authority. The third answer presents an interesting point, but that's not the issue before the court. Another case perhaps.

As far as Answer #2's point about separation of powers, it is irrelevant and completely misses the point of my question. This case (or any case for that matter) will not overturn Marbury. Justice Thomas could not figure out a way to make your point a reality, and you are just wrong. Please review your first year con law notes to better understand Congress's power to limit the Court's jurisdiction.

So far, the best answer explaining this issue is on this site: http://writ.news.findlaw.com/lazarus/20070927.html. Thoughts?

Answer 1

I believe it is an issue for the courts. Given what we know about the procedure itself, the issue may be decided on the basis of the 8th amendment and again, "evolving standards of decency". I think this is entirely appropriate although given the present Court I think this is not likely. We do indeed have a death penalty, but not a death "by torture" penalty.

Second issue-- many states have been unable to get doctors to participate in exections by lethal injection. They have wanted doctors to participate because inserting an intravenous line is, after all, a medical procedure and it can be complicated, particularly where a suitable vein is hard to find (as with drug users.) Doctors have a conflict. The oath that all doctors take, the Hippocratic Oath, states that doctors must do no harm (to patients.) Some state medical societies have said they will sanction doctors who participate in executions. There is a conflict between what states claim they need and what doctors, in good conscience, honoring of their oaths, may not do. This is not a legislative problem.

I will be interested to read other people's views.

Answer 2

It is, primarily, a legislative issue. The challenges brought before the courts have tended to push, through various theories and with varying degrees of success, the notion that this or that death penalty statute violates the 8th Amendment prohibition against cruel or unusual punishment.

For a broader perspective on how and why the Courts should or should not be involved in the issue, I think that the discussion will eventually wind up finding its way back to the concept of "judicial review" and the history (and politics I'm sorry to say) surrounding the Supreme Court's ruling in a very old and very fundamental case called: Marbury :vs: Madison.

There's an excellent discussion of this whole legislature :vs: The Courts issue in a book, written a few years ago, called: "Men In Black - How The Supreme Court Is Destroying America", written by a fellow named: Mark Levin.

The background and history, and evolution, of the struggle (between the legislatures and the courts) is about the best I've seen in a long time and it's quite frank. In the end, he places the blame on a mamby-pamby U.S. Congress who, as a matter of constitutional fact, has the power to limit the jurisdiction of the federal courts, (The kinds of cases that they're allowed to hear.) but they don't do it. Instead, they bow their heads and meekly submit to a body of 9 unelected people.

Answer 3

I'm not sure about the "cruel and unusual" part - in some cases, I think it's the easy way out. I supported capital punishment for a long time, but I have changed my stance over the years, for several reasons: 1. By far the most compelling is this: Sometimes the legal system gets it wrong. In the last 30 years in the U.S., over 100 people have been released from death row after years of imprisonment because they were exonerated by DNA evidence. Unfortunately, DNA evidence is not available in most cases. No matter how rare it is, the government should not risk executing one single innocent person. Really, that should be reason enough for most people. If you need more, read on: 2. Because of higher pre-trial expenses, longer trials, extra expenses associated with prosecuting a DP case, and the appeals process (which is necessary - see reason #1), it costs taxpayers MUCH more to execute prisoners than to imprison them for life. 3. The deterrent effect is questionable at best. Violent crime rates are actually higher in death penalty jurisdictions. This may seem counterintuitive, and there are many theories about why this is (Ted Bundy saw it as a challenge, so he chose Florida – the most active execution state at the time – to carry out his final murder spree). Personally, I think it has to do with the hypocrisy of taking a stand against murder…by killing people. The government becomes the bad parent who says, ‘do as I say, not as I do.’ 4. As I mentioned above, there’s also an argument to be made that death is too good for the worst of our criminals. Let them wake up and go to bed every day of their lives in a prison cell, and think about the freedom they DON’T have, until they rot of old age. When Ted Bundy was finally arrested in 1978, he told the police officer, “I wish you had killed me.” Khalid Shaikh Mohammed (the architect of the 9/11 attacks) would love nothing better than to be put to death. In his words, "I have been looking to be a martyr [for a] long time." 5. Most governments are supposed to be secular, but for those who invoke Christian law in this debate, you can find arguments both for AND against the death penalty in the Bible. For example, Matthew 5:38-39 insists that violence shall not beget violence. James 4:12 says that God is the only one who can take a life in the name of justice. Leviticus 19:18 warns against vengeance (which, really, is what the death penalty amounts to). In John 8:7, Jesus himself says, "let he who is without sin cast the first stone."

Answer 4

I agree this is a legislative issue, not a judicial issue. The ONLY grounds for the courts to rule is on the issue is if it constitutes "cruel and unusual" punishment. The courts have ruled some METHODS of execution are cruel and unusual but never that the death penalty itself is.

Answer 5

I'm with steven's answer.