The death penalty has long been a topic of contention in the United States. Some states, like Texas, make heavy use of the ability to enact capital punishment against its worst offenders. Others have banned the practice altogether. Read on to find out about the arguments for and against the death penalty in the United States.

What does the death penalty look like in the US?

The death penalty is legal in the United States–although it is up to the state’s discretion to determine whether or not to make it permissible within its borders. Currently 32 states have capital punishment laws on the books. The death penalty was, briefly, rendered essentially illegal in the United States by the 1972 Supreme Court case Furman v. Georgia but was reinstated in 1976 with the case Gregg v. Georgia. Between when the death penalty was reinstated in 1976, and the end of 2014, almost 1,400 prisoners have been executed.

The United States’ perspective on the death penalty is unique among many of its allies and peer nations. Japan is often described as the only other industrialized nation to use the death penalty. A full 140 other nations have abolished the practice. In 2013, the United States killed the fifth most people in the world, ranking only behind China, Iran, Saudi Arabia, and Iraq. Pakistan, Yemen, North Korea, Vietnam, and Libya round out the rest of the top ten.

What does the legal argument surrounding the death penalty look like?

The debate over the death penalty in America typically rests on the Fifth and Eighth Amendments.  The Fifth Amendment established due process in the American legal system, stating that a person shall not “be deprived of life, liberty, or property, without due process of law.”  On the other hand, the Eighth Amendment prevents the use of “cruel and unusual punishment.” Judges have interpreted these two amendments to mean that the death penalty is constitutional as long as it is carried out as humanely as possible and only after due process.

The juxtaposition of those arguments is actually what led to the de facto four-year stoppage of the death penalty between 1972 and 1976. In Furman v. Georgia, it was decided that particular death penalty statues were unconstitutional, not the act of capital punishment itself. The focus of Furman was on the arbitrariness of the statutes, rendering them unconstitutional. States rewrote the laws, a new suit called Gregg v. Georgia made it to the Supreme Court, and was ruled constitutional. Currently, the death penalty is viewed as constitutional, if states decide to use it.

What are the arguments against the death penalty?

Opponents of the death penalty claim that such punishment is immoral and violates the sanctity of life, while others argue that those claims are based on faith and religion, which should not be the basis of American law. Although there has been a trend in opposition to capital punishment, the majority of Americans are still in favor of such a penalty.  Deterrence statistics generally promote the effect of the death penalty, but a lot of doubt still remains. Certain organizations, like the European Union, have taken strong stances in opposition to the penalty citing issues of human rights.

Those who don’t believe in the death penalty also bring up concerns about the history of racism within American capital punishment. Forty-two percent of inmates on death row are black, despite the fact that black people are only around 14 percent of the American population. Particularly there’s concern that black defendants are sentenced to death at a disproportionate rate when their alleged victims were white. As Amnesty International points out:

A 2007 study of death sentences in Connecticut conducted by Yale University School of Law revealed that African-American defendants receive the death penalty at three times the rate of white defendants in cases where the victims are white. In addition, killers of white victims are treated more severely than people who kill minorities, when it comes to deciding what charges to bring.

In addition, arguments against the death penalty point out that sometimes those executed are exonerated after the fact, after new evidence, re-tested evidence, or changing testimony is made clear. While exact numbers are almost impossible to quantify, a study in 2014 estimated that more than 4 percent of prisoners on death row were probably innocent.

What are the arguments for the death penalty?

Those who believe in the death penalty argue that it’s a fair sentence, reserved for those who commit only the most heinous crimes. It prevents them from ever committing a horrible crime again with a finality that no other method of punishment could possibly guarantee. It can also act as a deterrent to others who would consider committing such crimes. In addition, it provides a level of closure for the family and loved ones of the victim. Many Americans do believe that some people deserve the death penalty. As Rick Perry put it in the lead-up to the 2012 elections:

No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which — when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

Conclusion

The arguments for and against the death penalty in the United States are far from over. Politicians will still be asked their opinions on the controversial practice, passionate appeals will continue to be made, and states will still be free to make their own laws regarding the punishment. While the legality may no longer be as strong a point of contention as it used to be, the arguments over the death penalty are sure to continue.

Resources

Primary

Constitution: Fifth Amendment of the United States Constitution

Constitution: Eighth Amendment of the United States Constitution

European Union: EU Policy on Death Penalty

Additional

Boston: Execution Saves Innocents 

Heritage Foundation: The Death Penalty Deters Crime and Saves Lives 

LA Times: The Death Penalty: Valid Yet Targeted 

Washington Post: Md. Judge Advocates for Death Penalty, Says Convict May be Greeted by Devil 

Washington Post: Do We Need the Death Penalty?

DeathPenalty.org: California’s Death Penalty: All Cost and No Benefit

ACLU: The Case Against the Death Penalty

The New York Times: More Evidence Against the Death Penalty

US News: Conservative Case Against the Death Penalty

Columbia Law: Capital Punishment: Deterrent Effects & Capital Costs

Penal Reform: Key Facts

PBS: Is the Death Penalty Unjust? 

Gallup: Death Penalty

ProCon: Should the Death Penalty be Allowed?

Economist: Democracy and the Death Penalty: an Evolving Debate

Santa Clara University: Capital Punishment: Our Duty or Our Doom?

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Death Penalty in the United States: Why We Still Have It appeared first on Law Street.

Many prisons use solitary confinement as a mechanism to control their prison populations and minimize the threat of danger to other inmates and prison staff. Yet extreme isolation is an unnatural punishment and can cause severe psychological, or sometimes even physical, damage. The effectiveness and methods of solitary confinement has been debated since its modern day inception as a form of punishment in the 1800s, yet it was not until recent years that states began to question the constitutionality of the matter. As convicts, prisoners have little sympathy from the general population; yet there are arguments for the release of prisoners who are placed in solitary confinement for indefinite amounts of time and for non-violent reasons. The argument in favor of regulating or eliminating the age old method is that these people are being placed under “cruel and unusual” circumstances, and are being released back into society in an even worse condition than before they were incarcerated. As of 2013, the United States holds roughly 2.3 million inmates in federal, state, and local jails, 80,000 of which are in solitary confinement.

What is Solitary Confinement?

There are two main types of solitary confinement that are primarily used in the United States. Disciplinary solitary confinement is used to punish an inmate for a violation of minor jail rules or protocol; administrative solitary confinement is used to isolate dangerous prisoners from the rest of the prison population and staff. Often prisoners who are placed in the latter group will remain in Supermax cells for months to years, sometimes for an undetermined length of time.

Typically solitary confinement is reserved for the most threatening and aggressive inmates, so the conditions are not cozy. Cells are typically “80 feet [10 by 8 feet], not much larger than a king-size bed,”  and sometimes even smaller; they do not have any windows and the floors are hard concrete. The door is typically heavy metal and locks with massive bolts.  Prisoners are isolated for 23 hours out of the day, and receive one hour of heavily monitored recreational activity in another slightly larger cell. Meals are slid through a small space in the door so prisoners remain completely isolated even during meal times.The cell is left bare, so prisoners often resort to habitual pacing and sometimes create routines to mimic life outside of prison. Prisoners may receive an early release from the designated amount of time if they practice “good behavior” and attend classes to improve themselves.

 History of Solitary Confinement

Solitary Confinement is thought to have started in a Philadelphia jail in the 1800s. The Quakers felt that by placing criminals in isolation they would have time to read the Bible and repent for their sins. The original idea behind solitary confinement was to reform inmates, as opposed to violently punishing them.

The Invention of Solitary Confinement — The Eastern State Penitentiary:

Another early prison that used a form of solitary confinement was the New York jail, Auburn. There, the “Auburn System,” a method of punishment in which prisoners were required to do manual labor all day in silence before being sent off to solitary confinement for the remainder of the night, was developed. This system gained popularity in prisons across the country. During this time, Auburn and other prisons also used forms of torture as a punishment. One popular method was the “shower bath.” This consisted of placing a prisoner under a constant flow of an excessive and painful amount of water. The flood would beat them over the head, getting into their eyes and mouths, nearly drowning them. Sometimes the shock would cause prisoners to fall dead moments later.

Psychological Effects and Ethics

It is hard to think of people who have committed heinous crimes as actual people, yet putting them under such harsh conditions can be embarrassing, alarming, and disgusting. Many times inmates display suicidal tendencies and harm themselves with makeshift weapons. Others resort to odd and erratic behaviors such as rubbing feces on themselves, pacing mindlessly, or cutting themselves. If solitary confinement is supposed to teach a lesson, it may be counterintuitive to its original purpose. Prisoners who are placed in solitary confinement will experience several psychological and physical effects of being in isolation for an extended period of time. According to Frontiers in Psychology, “One’s own existence is something that one experiences in the kinds of pragmatic projects that one shares with others.” When deprived of the basic human need of socialization for long enough, people begin to display mentally unstable and even insane behaviors.

Prisoners in solitary confinement may begin experiencing:

Visual and auditory hallucinations

Hypersensitivity to noise and touch

Insomnia and paranoia

Uncontrollable feelings of rage and fear

Distortions of time and perception

Increased risk of suicide

Post Traumatic Stress Disorder (PTSD)

The development of crippling obsessions

When prisoners do not experience any interactions with other people they begin to lose a sense of reality. Their internal thoughts become a blur with the external world, which they have ceased to experience. Not only is this inhumane, but it also defeats the purpose of punishing the guilty. Integrating the prisoner back into society becomes more challenging, and they become a product of isolation. This is not only detrimental to the individual, but also society.

According to International Journal of Offender Therapy and Comparative Criminology, in 1890 the United States Supreme Court  began to note the inhumane and damaging effects that solitary confinement has on the prisoners:

“A considerable number of prisoners […] became violently insane;  other still, committed suicide, while those who stood the ordeal better were not generally reformed and in most cases did not recover sufficient mental activity to be any subsequent service to the community.”

ABCNews personality Dan Harris voluntarily spends 48 hours in solitary confinement:

Prisoners’ Rights

The Eighth Amendment includes the cruel and unusual punishment clause and serves as the basis for civil rights advocates’ arguments against the use of solitary confinement in American prisons. The fact that prisoners have little to no human contact, let alone see daylight for months to years, could be considered cruel and unusual. The argument that solitary confinement violates a prisoner’s constitutional rights prevails as the center controversy for advocates and courts. While incarcerated, prisoners are provided with medical and mental services, although whether they are adequate or not is debatable, and many cases regarding health care and general prison conditions have been brought to the forefront within the last 20 years.

To view the document outlining prisoner’s medical, dental, and mental health rights click here.

Case Study: Pelican State Bay Prison  (Ashker v. Brown)

The case Ashker v. Brown was sparked by a  2011 hunger strike led by prisoners at Pelican State Bay Prison in Crescent City, California. The strike drew attention to the unpalatable conditions that prisoners in solitary confinement experience. In an extended effort in May 2012, the  Center for Constitutional Rights filed a lawsuit against Pelican State Bay Prison for allegedly violating the Eighth Amendment as well as the Due Process Clause in the Fourteenth Amendment.  Many prisons lack adequate medical care, and prisoners are denied an in-depth review of their cases before being placed in solitary confinement.

Case Study: Nicole Guerrero v. Wichita County

Pregnant inmate Nicole Guerrero was placed in solitary confinement in a Texas jail in 2012. While in ‘the hole’ she began to experience excruciating pain and intense cramps due to labor. The medical staff at the prison reportedly ignored her for hours. She was forced to give birth alone, and when the prison medical staff finally came to the scene the baby was dead due to the umbilical cord being wrapped around its neck. This case supports the argument noting the lack of medical attention prisoners in solitary confinement receive, and brings states closer to regulating the controversial practice.

Peoples v. Fischer

In June 2012, the New York City Civil Liberties Union filed a lawsuit on behalf of prisoner Leroy Peoples. Peoples spent three years in solitary confinement for filing false legal documents. Violating any of the codes that the prison regards as against protocol has the potential to send a prisoner into solitary. According to the Civil Liberty Union, “only 16 percent of isolation sentences from 2007 to 2011 were for assault or weapons.” Solitary confinement served the original purpose of protecting staff and other inmates from potentially dangerous prisoners; now prison systems are abusing the extreme form of punishment, and overusing solitary confinement for reasons other than violence. Another issue that the NYCLU addresses is the fact that solitary confinement is used as a source of punishment for juveniles, pregnant inmates, and the mentally ill. The Union argues that this is inhumane and more permanently damaging to these more vulnerable groups of inmates. Currently, the outcome of the case is in reconsideration, and “if the process fails, the NYCLU will resume litigation.”

Click here to see the Institutional Laws of Conduct.

Innovation in the Prison System

Recently Colorado signed into legislation a law that bans prisons from placing mentally ill inmates in long-term solitary confinement. According to the Wall Street Journal, “Maine and New Mexico have taken steps to reduce their use of solitary confinement, and Nevada and Texas are studying the issue.” Similarly in a document, New York has decided to “remove  youth, pregnant inmates and developmentally disabled and intellectually from extreme isolation.”

Click here to see New York’s agreement to reform solitary confinement in the prison system.

Some opponents of the practice suggest alternative methods; instead of placing inmates in solitary confinement,  they could be sent to a mental-health care unit within prison where the individual can be treated instead of punished. Of course, this idea receives strong opposition, yet New York has decided to enact a version of it.

Resources

Journal of Constitutional Law: Prolonged Solitary Confinement and the Constitution

NYCLU: Peoples v. Fischer

Correctional Association of New York: Shining Our Spotlight on Auburn Correctional Facility

CNN: Solitary Confinement: 29 Years in a Box

PBS: Solitary Confinement and the U.S. Prison System

Pennsylvania Prison Society: Violence in the Supermax: A Self-Fulfilling Prophecy

Washington Post: Va. Prisons’ Use of Solitary Confinement is Scrutinized

The New York Times: New York State in Deal to Limit Solitary Confinement

Center for Constitutional Rights: Ashker v. Brown

NYCLU: Lawsuit Secures Historic Reforms to Solitary Confinement

CNN: Texas Wom Claims She Gave Birth Alone in Jail, Baby Died

Wall Street Journal: Colorado Becomes Latest to Back Ban on Solitary Confinement of Mentally Ill

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Madeleine Stern

Madeleine Stern attended George Mason University majoring in Journalism and minoring in Theater. Her writing on solitary confinement inspired her to pursue a graduate degree in clinical counseling after graduation. Madeleine is an avid runner, dedicated animal lover, and a children’s ballet instructor. Contact Madeleine at staff@LawStreetMedia.com.

The post The Evolution of Solitary Confinement in the United States appeared first on Law Street.

It should first be stated that I personally don’t condone the practice of the death penalty at all; to me, the idea begs the notion of “an eye for an eye,” a facet of the ancient Hammurabi’s code. Nevertheless, regardless of one’s position on the issue, the fact remains that when the death penalty is used, efforts must be made to ensure that the method of capital punishment limits unreasonable pain and suffering.

The Constitution protects against unnecessarily harsh treatment in the Eighth Amendment, which prohibits cruel and unusual punishment. In United States history, many methods of capital punishment have been swept out of use for being considered inhumane methods of execution. Practices used in the American colonies such as burning at the stake, crushing, and beheading are now determined cruel and unusual. In most states, methods such as hanging, electrocution, death by firing squad and gassing are also considered cruel and unusual, and the most accepted form of execution in recent years has been lethal injection.

However, in the case of Dennis McGuire, the lethal injection that caused his death should also be considered cruel and unusual. McGuire was given a combination of two drugs: midazolam, a sedative, and hydromorphone, a painkiller. McGuire’s lawyer argued that the combination of the drugs could produce the effect of air hunger, an uncomfortable experience that causes a sufferer to gasp for air. Additionally, since McGuire has shown several symptoms of the condition, sleep apnea, the drugs were even more likely to lead to suffocation. David Wasiel, a Harvard Medical School professor, testified to the apparent terror McGuire would be subjected to under the effects of the two drugs. Nevertheless, District Judge Gregory Frost claimed that there was not enough compelling evidence to prove there would be a risk of extreme discomfort and pain.

What is further striking about the decision to allow the injection is the fact that the specific combination of drugs had never been used. Even if the amount of evidence pointing to the likelihood of air hunger was lacking, surely it would seem reasonable to allow for a period of experimenting and testing, since the injection’s exact effects remained unknown.

Despite all warnings and uncertainty about the drugs’ effects, on Thursday, January 16th, Dennis McGuire was administered injections of both midazolam and hydromorphone. After the first five minutes following the injections’ entrance into the blood stream, McGuire’s breath grew irregular and he began to gasp and utter strange noises for about ten minutes. His family members, who were permitted to witness the guilty man’s final moments, grew shocked and horrified as they watched McGuire’s clear discomfort and agony prior to his death. In total, the execution took over twenty minutes, one of the longest in Ohio’s history since it reinstated the death penalty.

Of course, McGuire’s actions that led to his execution certainly offer little cause for sympathy. In 1989, he raped and subsequently killed twenty-two year old Joy Stewart, a pregnant woman, by stabbing her to death. McGuire deserved to be brought to justice for his heinous crime. However, when a state pursues a method of capital punishment that also causes unnecessary suffering, how then is a state’s law above the actions of the perpetrator?

The use of an untested injection to put Dennis McGuire to death is despicable. Why, it must be asked, was the injection involving the combination of drugs allowed to be administered? Other than the judge’s poorly made decision that the lack of evidence to prove there was a great risk of pain and discomfort involved in the use of the injection. Another reason may exist; Ohio was all out of its usual lethal injection cocktail and simply, needed something to fill the void.

Previously, Ohio had been using a sedative called pentobarbital for capital punishment, which typically had caused a shorter and less painful death. However, pentobarbital’s manufacturer recently cut off Ohio’s  access to the drug, barring its use for the death penalty. Without supplies of its usual drug of choice, the state turned to its untried back up method, the combination of midazolam and hydromorphone.

Desiring to carry out the execution of McGuire on schedule, Ohio would not wait for possible testing of the drugs’ effects or research into potential alternatives. Lacking regard for the human dignity of prisoners, Ohio decided to administer the injection despite its uncertain consequences, giving the execution an air of experimentation. The state must now answer to the McGuire family’s cries for legal action and has earned a place in the nation’s spotlight for its blunder. In the situation’s aftermath, other states should learn from Ohio’s misjudgment to prevent similar occurrences from taking place in the future.

 [Cornell Law] [The Guardian] [DailyMail] [National Journal]

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Featured image courtesy of [Ken Piorskowski via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

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