Are the Days Numbered for the Death Penalty in the US?

On Jan. 24, the Supreme Court of the United States declared admissible a lawsuit challenging the constitutionality of lethal injection as a method for carrying out the death penalty. This country is the only Western democracy that still has capital punishment. It is true that currently, 17 U.S. states have abolished their death penalty laws, and death sentences and executions have declined significantly in states that still have them, while at the same time, the society’s support for this punishment is also declining. However, in 34 states, it is still legal, and the population found on death row has increased substantially in the last four decades.

A brief survey of the jurisprudence of the Supreme Court shows that in 1972, it flirted with the possibility of abolishing the death penalty, which would have invalidated all state laws providing for its existence in violation of the Eighth Amendment of the Constitution, according to which no cruel and unusual punishments will be inflicted. However, the reaction was not as anticipated, and driven by rising violent crime rates, lawmakers in different states passed new laws that circumvented the objections of the Supreme Court. The constitutionality of the death penalty was expressly declared by the Supreme Court four years later, ushering in what became known as the “modern era of capital punishment,” based on the premise that the death penalty per se would not be unconstitutional because it would comply with two legitimate objectives for all sentences: retribution and deterrence. It would also always guarantee that the punishment was proportional to the crime. When dealing with crimes against individuals, it would only be applicable in cases of homicide and, as far as the perpetrator of the crime was concerned, the death penalty would be prohibited for people suffering from a mental disorder at the time of committing the crime, for those suffering mental disabilities, and for offenders under 18.

Despite the attempts of the Supreme Court to legally rationalize the most abominable thing – that the punishing mechanism of the state can kill a human being – through criteria such as proportionality, retribution or deterrence, and state efforts to devise legal formulas and procedural rules to comply with the challenge of making something just, when in essence it is not, the death penalty continues to be plagued by arbitrariness, discrimination, impulse and errors in its application.

Special mention should be made about the methods used for carrying out executions. In the coming months, the Supreme Court will rule on the constitutionality of lethal injection as a result of errors made in its application. Until recently, it was considered a quick and painless method.

In recent times, there have been several cases that have demonstrated that the anesthetic substance responsible for sedating the inmates, before being provided with the other two substances that end their lives, does not always produce the desired effect, causing enormous physical suffering prior to death, which contradicts the Eighth Amendment.

Lethal injection, as conceived by its inventor, includes the application of three substances. The first is sodium thiopental, which serves to anesthetize the inmates so they do not feel the effect of the other two substances administered afterward. These substances are pancuronium bromide, which paralyzes the muscles, and potassium chloride, which causes cardiac arrest.

However, for several years, there has been a shortage of the first substance in this deadly cocktail – the aesthetic substance – in North American prisons. This is because the European companies that manufacture it are refusing – as a result of choice, social pressure, or ultimately because of established legislation – to supply it.

Because of the shortage of sodium thiopental, in 2013, Florida used a new substance called Midazolam for the first time in an execution. Other states, such as Virginia and Oklahoma, have also done this with disastrous results. Midazolam is defined as a short-acting benzodiazepine, used as a tranquilizer or in slightly painful procedures, although it has no analgesic or anesthetic effect.

The Supreme Court had an opportunity to rule on the constitutionality of lethal injection in 2008, in the case of Ralph Baze and Thomas Bowling v. Rees, before there were shortages of sodium thiopental (which began in 2010). It ruled that the death penalty was perfectly in compliance with the prohibition of cruel and unusual punishment as provided under the Eighth Amendment. It was unable to prove that there was a less harmful alternative, and it had also forced the judges to enter into scientific debates that are alien to them.

The Supreme Court thus washed its hands of the issue and relegated to the realm of science something that was “inhuman” and corresponded to abolishing justice. However, that which went out through the door is now creeping back in through the window: all because the time has come where we can no longer turn our backs on the facts and the recent events in U.S. prisons, which have been qualified as “inhumane” executions by President Barack Obama.

The time really has come to abolish the death penalty from the American constitutional system, something I have been longing for. The argument supporting this is not the right to life, which is so often dismissed, but the prohibition of cruel, inhuman and degrading punishment, which is incompatible with the Eighth Amendment. It seems that today, more than ever, science is on our side.