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In the past nine months, the State of Oklahoma has tried twice to execute Robert Glossip. Sentenced to death in 1998 for the murder of his boss, Glossip was one of four death-row inmates suing the state over its use of an unreliable drug cocktail that contributed to botched executions. In January, the Supreme Court issued a stay and agreed to hear his case; in a bitterly split 5–4 decision, the Court ruled that Oklahoma could continue to use the procedure. But when the state sought to execute Glossip on September 16, new evidence suggesting that he’d been framed by his codefendant prompted a state court to stay his execution again, a mere three hours before it was carried out. That court is working fast to review Glossip’s new claims, with a third attempt at execution set for September 30.Ad Policy
The Supreme Court’s ruling in Glossip v. Gross arrived at a moment when the country’s enthusiasm for executing its citizens reached a historic low. Prosecutors are seeking capital sentences far less often, and jurors, even in highly aggravated cases, are imposing long sentences instead of death. Seven states have repealed capital punishment since 2000 (most recently Nebraska, a red state), and its demise is soon likely in several more. Three governors in capital states have announced that there will be no executions while they’re in office; a fourth has put a halt to executions pending further review. Even longtime supporters of the death penalty, including former prosecutors and state attorneys general, are announcing their opposition with increasing frequency, in part due to the recognition that our system of justice is far more fallible than they once believed.
But several states continue to execute in earnest, and a small number, including Oklahoma, continue to use a three-drug cocktail for lethal injections. The first drug is supposed to be an anesthetic that knocks the prisoner out; the second is a paralytic that prevents all movement; the third causes searing pain and stops the heart. In recent years, states have had increasing difficulty obtaining an anesthetic, primarily because these drugs are largely manufactured in European countries that long ago abandoned capital punishment, and these companies are increasingly wary of supplying drugs to kill rather than heal.
There is no dispute that prisoners will suffer horrifically if the first drug wears off prematurely or does not adequately induce and sustain unconsciousness. In the past two years, though, some states have selected the controversial sedative midazolam as the first drug. In three executions, it failed to keep the condemned unconscious despite the administration of high dosages. In an Ohio case, the inmate could be heard gasping and snorting more than 20 minutes after receiving it. In an Arizona case, the inmate gasped for nearly two hours before being pronounced dead. And in Oklahoma, condemned inmate Clayton Lockett awoke during the execution process after receiving a large dose of midazolam and suffered greatly before his death.
In many ways, Glossip’s case confirmed advocates’ claims about the cruelty and arbitrary nature of capital punishment. Despite midazolam’s troubled track record, an Oklahoma federal judge ruled that the inmates’ evidence failed to show that it was unreliable. That court also denied relief because Glossip had failed to demonstrate that the state had a viable alternative—essentially faulting his legal team for representing his interests. And the Supreme Court granted Glossip’s petition for review only after it allowed Oklahoma, on a 5–4 vote, to execute Charles Warner, another inmate who had joined the suit.
As the opposing votes on Glossip and Warner make clear, the Court was already sharply divided when the justices heard oral argument. The hour-long hearing was as raw and charged as they come. Justices Samuel Alito and Antonin Scalia sharply questioned Glossip’s counsel and charged that the pressure placed on the drug companies by death-penalty abolitionists was responsible for the lack of reliable anesthetic drugs. Justice Sonia Sotomayor pointed out inaccuracies in the state’s brief, and Justice Elena Kagan argued that if midazolam failed to sedate, the inmate would feel as if he were being burned alive.
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On June 29, the conservative majority upheld Oklahoma’s use of midazolam, concluding that there was not a “substantial risk of serious pain” necessary to establish an Eighth Amendment violation. The majority also held that it is the inmate’s burden to identify a workable alternative.
Justice Sotomayor’s stinging 31-page dissent, joined by Justices Kagan, Stephen Breyer, and Ruth Bader Ginsburg, vigorously asserted that Glossip’s evidence established a substantial risk of cruel and unusual punishment. It found the district court was wrong on the science concerning midazolam and sharply disagreed with the majority’s holding that inmates challenging execution protocols have the burden to establish an acceptable method of execution.
But it is Justice Breyer’s long dissent, joined by Justice Ginsburg, that will command the most attention in the coming years. Channeling a growing number of Americans, he wrote that it is time to consider whether the Eighth Amendment bars capital punishment in all cases.
Breyer is hardly the first Supreme Court justice to invite constitutional debate about the death penalty. Several members of the Court that brought back the death penalty in 1976 later came to reject it. Nixon appointee Lewis Powell told his biographer that the death penalty should be abolished. Another Nixon appointee, Harry Blackmun, wrote in 1994 that he would no longer “tinker with the machinery of death.” And in 2008, John Paul Stevens wrote that his review of hundreds of cases had persuaded him that the penalty is both profoundly unworkable and unconstitutional.
What has Breyer learned to put him in such company? Plenty. In his dissent, he argued that the death penalty is seriously unreliable and arbitrary in application; he believes the long delays undermine its penological purpose; and he is convinced that we have executed the innocent.
In the 1963 case of Rudolph v. Alabama, Justice Arthur Goldberg similarly suggested that capital punishment might violate the Eighth Amendment. That dissent prompted statewide moratoriums and encouraged cases to be brought to the Court challenging the constitutionality of capital statutes. A decade later, the Court struck them all down in Furman v. Georgia. Perhaps, in the wake of Glossip, we are about to travel down that path once again.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Ever since the Eighth Amendment was ratified by the states in 1791, it has been a key part of our Constitution. The Eighth Amendment has protected our people from many things, including an overly high bail or “unnatural” punishments. It has ensured that in civil matters, as well as criminal cases, the people of America are protected from an overly high bail and cruel and unusual punishments. Today, the Eighth Amendment has stirred up many controversies with its many paths of interpretation, but it still remains an important part of our government under the Constitution.
The Eighth Amendment has brought up many controversies with its rather general meaning. It says that ‘cruel and unusual’ punishments are not allowed, but what exactly is cruel and unusual? The dictionary definition of cruel is ‘so intense as to cause extreme suffering’.1 Does that mean no torture or branding? Or were they referring to something totally different? There is no way for us to explain this part of the Eighth Amendment because we simply do not know. Things that were totally normal in the 1800’s seem awful now, such as hanging and cutting off limbs. But now, we use the electric chair to kill people. How is that not cruel and unusual? It is up for interpretation.
The other half of the Eighth Amendment states that “Excessive bail shall not be required”. To first understand this, you must know what bail is. Bail is a sum of money that a criminal defendant gives to the court to gain release from jail until the trial. The defendant must show up at trial to get their money back; if they do not come, then they shall have to give up the money that they paid and face additional charges. So, really all the Eighth Amendment is saying is that millions of dollars should not be the bail set for someone accused of pick pocketing two dollars, nor of someone who stole a banana from a stand. All it is saying is that the punishment must fit the crime. This amendment simply protects the rights of the people.
The idea for the Eighth Amendment came from the English Magna Carta in the 1200’s and the English Bill of Rights. The history of bail goes back to approximately 686, when the English Anglo-Saxon Kings, Eadric and Hlorhaere, decided criminals should have to pay a “bohr” or blood price to the family of the victim. If the accused was found innocent, then the money was returned. The system of bail we use today was first used in around ninth century Britain. Then though there were no laws saying how bail could be used and the practice of it was badly abused. Then, in 1627, the English Parliament passed the Petition of Rights, which required the court to have some evidence of the person having committed a crime before jailing the person. This was the first step to improvement. The next step came in 1679, when the Habeas Corpus Act gave a right to bail under certain circumstances to criminal suspects. The final step came in 1688, when England’s Bill of Rights prohibited excessive bail.
Cruel and unusual punishments have a long background; in history, it is almost certain that there has never been a time that there were no cruel and unusual punishments. However, this does not mean that we should try and continue doing this, and that is what the members of Congress realized. It was important to include these two subjects in the Bill of Rights because even back then, they were causing stirs. The bail was causing the most trouble in 1789; outrageous bails were being charged for small crimes and the members of Congress knew that was a bad thing. They also knew that we would need more ‘normal’ punishments to help us survive as a country.
The members of Congress all agreed on this subject most heartily; in fact, the only record of debate that came up was between William Smith of South Carolina and Samuel Livermore of New Hampshire. Smith said that the wording of the amendment was too indefinite, and Livermore replied saying that he thought the amendment humane but not necessary. He also forsaw the arguments that would surround the amendment, and wondered who would be the judge of those arguments surrounding the amendment? What does the amendment mean? He decided that sometimes, ‘cruel and unusual’ punishments are needed. The rest of Congress ignored him and the Eighth Amendment passed by a large majority.
There have been many recent controversies about the Eighth Amendment. A very interesting recent one is the disagreement about the death penalty. Many people think the death penalty is very cruel and unusual, but others think it is not. Those who think the death penalty is not cruel and unusual think so for different reasons. “The death penalty has been employed throughout our history,”2 said one source. Another said “The death penalty is very revengeful, which may be part of the reason people like it.”3 Because of these reasons and many more, polls show that more and more people support the death penalty year by year. Of course, there are others who believe the death penalty is cruel and unusual.
“If we kill Them for killing Us, aren’t we just doing the same thing they did to us? If so, why aren’t We killed?”4 One source asks. “There are only 3 countries in the world that kill people under the age of 16. America is one of them. The death penalty is a completely unnecessary thing. What if they got it wrong? What if the person they killed was innocent?”5 There are no answers to these questions. Each side of this battle has reasons, and neither side is prepared to give up their views. Because of this, the death penalty may be a controversy for quite some time.
Of course, there have been many other debates questioning what fits under the category of “cruel and unusual punishments” and “excessive bail”. In the case Ingraham vs. Wright in 1977, the spanking of children in public schools was debated to see if that was considered a cruel and unusual punishment for school children. Some thought that it was awful their children where receiving beatings for mistakes, but others thought that it was a good way to make sure they didn’t do it again. The Supreme Court ruled that the Eighth Amendment does not prohibit “disciplinary corporal punishment”6 of children.
Another interesting thing the Eighth Amendment has brought up recently is the rights of prisoners. Until around a century after the Bill of Rights was written, prisoners were not even considered citizens. Then, around 1970, people started to realize that prisoners were people, and that the Constitution and Bill of Rights applied to them as well. The States started to study their prisons, and what goes on behind prison walls. The things they found were quite disturbing. They found overcrowding, poor environmental conditions, idleness, levels of violence, racism, medical and mental health care needs, and restrictions on visitation. People found that being placed in prison had, in fact, turned into a cruel and unusual punishment for criminals. They started to change this, and tried to make prisons safer. The Eighth Amendment helped to make our country a better, safer place for all people.
The Eighth Amendment may be the shortest amendment, but it still has proven itself to be a very important part of the Constitution ever since it was written. It has given citizens improving rights. The words of the Eighth Amendment were written for the 1700’s, but they still act as a key to insuring the fair treatment of all people, giving liberty and justice to all. The Eighth Amendment will always be up for interpretation, but it will always protect us from abuse by our own government.