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The death penalty

Does execution by lethal injection
violate the U.S. Constitution?

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Background:

The eighth amendment to the U.S. Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 1

There was some opposition to the adoption of this amendment in 1789. One member of Congress complained:

"... it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.'' 2

Various U.S. Supreme Court decisions have attempted to interpret what type of punishments are and are not "cruel and unusual:"

bullet Wilkerson v. Utah, 99 U.S. 130, 135: In 1878, the court ruled: "... it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.'' The court upheld the use of execution by firing squad in Utah, which was then a Mormon-dominated territory. The Mormon Church taught a unique interpretation of the concept of "blood atonement:" that very serious sins could be forgiven if the sinner is killed and his blood mixed with the earth. The state has since discontinued the firing squad option.
bullet Kemmler, 136 U.S. 436: In 1890, the court approved executions using the electric chair, but did it under the Fourteenth Amendment's "due process" clause, not the Eighth Amendment's "cruel and unusual punishment" clause.
bullet Louisiana ex rel. Francis v. Resweber, 329 U.S. 459: In 1947 the court ruled in an unusual case where an botched attempted electrocution only injured a convict on death row. This raised the question whether a second try at electrocution would be cruel and unusual. A divided court said that the second attempt could proceed.
bullet Trop v. Dulles 356 U.S. 86: In 1958, a divided court decided that cancelling the citizenship of a natural born American was cruel and unusual punishment "more primitive than torture" because it resulted in "the total destruction of the individual's status in organized society."

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References and footnotes:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Cruel and Unusual Punishments," Find Law, at: http://caselaw.lp.findlaw.com/
  2. 1 Annals of Congress 754 (1789).
  3. "Annotations: Cruel and Unusual Punishments," Find Law, at: http://caselaw.lp.findlaw.com/
  4. "Supreme Court hears challenge of lethal injection procedure," Knight Ridder Tribune Business News, 2008-JAN-07, at: http://www.romingerlegal.com/

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