Capital punishment in the U.S reportedly has its origins in the 17th Century, when it was used for the first time in the British North American colonies to punish Captain George Kendall, for allegedly spying for the Spanish Government.

Since 1976, 1448 people have been executed in the U.S, according to statistics published by the Death Penalty Information Center. Alarmingly, 155 people have been released from Death Row since 1973, due to subsequent evidence of their wrongful convictions, according to a Staff Report published by the House Judiciary Subcommittee on Civil and Constitutional Rights. Indeed, Amnesty International U.S.A reports that 10 wrongfully convicted inmates were released from Death Row in 2003 alone. The potential for a fatal miscarriage of justice is therefore stark.


U.S Constitutional Safeguards

Capital punishment is mandated by the Fifth Amendment of the U.S Constitution, which provides that “no person shall be held to answer for a capital…crime, unless on a presentment or indictment of a Grand Jury…nor be deprived of life…without due process of law”. However, capital punishment is subject to two important constitutional limitations: (1) The Eighth Amendment prohibition on cruel and unusual punishment and (2) the Fourteenth Amendment right to due process of law, for deprivation of life by any State.

In recent years, the U.S Supreme Court has issued a number of opinions limiting the circumstances in which capital punishment may be administered in the United States. In Atkins v. Virginia [2002], the U.S Supreme Court ruled that the execution of individuals suffering from intellectual disabilities violates the Eighth Amendment prohibition on cruel and unusual punishment and is therefore unconstitutional. Similarly, in Roper v. Simmons [2005], the U.S Supreme Court ruled that it was unconstitutional to execute offenders aged under the age of 18 at the date of the crime, for similar reasons.


Recent Executions in Arkansas

The recent publicity surrounding the eight executions scheduled in Arkansas over a period of 11 days and the subsequent flurry of appeals has brought the issue of capital punishment into sharp focus.

In Arkansas, the eight men in question were to be killed by lethal injection. Death by lethal injection is a three stage process: first, a drug called Midazolam is administered, to render inmates unconscious. Second, Pancuronium Bromide is administered, to paralyze the inmate. Third, Potassium Chloride is administered, to trigger a cardiac arrest and stop the heart.

Arkansas wished to execute the eight men prior to April 30, 2017, when its stock of Midazolam was due to expire. In 2011, the European Commission imposed strict controls on the export of drugs to the U.S, which could be used to execute Death Row inmates. As a result, some States are now struggling to find sufficient quantities of the drugs required to carry out executions by lethal injection.

Attorneys for the men sought to challenge the scheduled executions, on the basis that if the prisoner is not rendered unconscious by the first drug, the second and third drugs will cause pain, contrary to the Eight Amendment prohibition on cruel and unusual punishment. The scheduled executions by lethal injection in Arkansas were the first of their kind since a “botched” execution was carried out in Oklahoma in 2014, in which Midazolam was not properly absorbed by the inmate’s system due to a collapsed blood vein, leading to eye-witness reports of a visibly painful execution.

It is noteworthy that, in the Arkansas case, the pharmaceutical companies themselves attempted to prevent their drugs from being used in the executions. McKesson Corporation sought the return of its supply of Vecuronium Bromide from the Arkansas Department of Correction, on the basis that the drug is to be used only for medical purposes. Similarly, Fresenius Kabi USA and West-Ward Pharmaceuticals filed a brief in the inmates’ lawsuit, contending that their contracts prohibit the use of their drugs in State executions.

At the time of writing, a number of legal challenges in Arkansas have been unsuccessful and, indeed, a number of executions have proceeded.

Criticisms of the Use of Capital Punishment in the USA in the 21st Century  

In our view, capital punishment is an inhumane and barbaric anachronism, which has no place in the US in the 21st Century. It is wholly undesirable for three reasons: first, the risk of a miscarriage of justice, second, the risk of racial bias in the administration of capital punishment and third, the economic cost.

Miscarriage of Justice

According to a study published by the Proceedings of the National Academy of Sciences, at least 4.1% of all inmates sentenced to death are innocent.

No criminal justice system is flawless. With advances in technology, DNA testing and forensics, new evidence exonerating an individual can become available at any time. However, the problem with capital punishment is that it is impossible to reverse a miscarriage of justice, once a person has been executed. A posthumous pardon is of little practical benefit to a person executed for a crime they did not commit or their grieving family.

Risk of Racial Bias

Unfortunately, the evidence available suggests that the death penalty is not being administered in a fair, equal, non-discriminatory manner. A study published by the University of Washington in 2014 found jurors in Washington State are three times more likely to recommend a death sentence for a black defendant than for a white defendant, in a similar case.

It is a fundamental tenet of the U.S legal system that everyone is equal before the law. Statistics such as these raise genuine questions as to whether capital punishment is being administered fairly or whether it is being subconsciously used by jurors as a vehicle for racial bias.


Economic Cost 

Furthermore, the cost of a single execution is disproportionately high, compared to the cost of imprisonment. According to the Dallas Morning News, a capital punishment case in Texas costs an average of $2.3 million – three times higher than the cost of imprisoning an individual in a high security jail for 40 years. At a time of austerity, it is difficult to justify spending in excess of $2 million of taxpayers’ cash on one execution, which could otherwise be spent on the imprisonment of multiple individuals.

Proponents of capital punishment contend that the death penalty is a deterrent and constitutes a greater form of punishment than imprisonment. However, we would suggest that long-term imprisonment has far greater punitive value than execution and would, therefore, be a far greater deterrent than a speedy execution. In any event, one has to find the concept of a State ordering the deliberate execution of its citizens uncomfortable, in the 21st Century. We hope that, in time, capital punishment will be abolished in the U.S and replaced with a fairer and more economically sound system of imprisonment.

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Published: 12th May 2017