Last month Oklahoma adopted a new method of execution as a backup for lethal injection when Gov. Mary Fallin (R) signed a bill to allow nitrogen-induced hypoxia. This is the third state to approve an alternative to lethal injection: Utah passed a bill allowing death by firing squad and Tennessee did the same with the electric chair.
Why are states reverting to these archaic methods? With a shortage in the chemicals needed to implement lethal injection, states are scrambling to find alternatives. Lethal injection, the primary method used in the U.S. to implement the death penalty, is legalised in 32 states and has been used for 1,232 executions since 1976. However, chemical manufacturers are now refusing sales to states practicing capital punishment. As a result, states are trying alternative chemicals for lethal injection, such as Midazolam, which was involved in three high-profile problematic executions. The Supreme Court in Glossip v. Gross is questioning whether the use of Midazolam is an infringement of the Constitution’s Eighth Amendment prohibiting cruel and unusual punishment. The outcome, in combination with the shortage of drugs, could be the end of lethal injection and may cause other states to approve substitutes as well. Alternatives must adhere to the Eighth Amendment and be ‘humane’. For example, in Glass v. Louisiana it was ruled that electrocution does not violate the Eighth Amendment. By examining past cases one can better understand the development of capital punishment and its practice.
In 1976, the ruling of Gregg v. Georgia ended the moratorium on capital punishment based on the rational that it serves the social principles of retribution and deterrence for severe crimes. More than 35 years later the reasoning for the death penalty remains the same, but the support has decreased from 80% in 1994 to 60% today. A recent study found respondents worried about the risk of executing innocent people, process fairness, and the inability of capital punishment to serve its basic objectives. All of these apprehensions are valid given current statistics regarding capital punishment practice.
Frequent inconsistencies in practice support the argument that the death penalty does not serve its original purpose. Not all eligible cases receive death sentences under the theory that only the “worst of the worst crimes” result in execution. However, an examination of the appeals process reveals that sentencing does not seem to rely on crime severity or defendant culpability. The appeals process provides an opportunity for proportionality review to compare a death sentence with other sentences for similar crimes in that state. Many states are not using proportionality review, and when it is used it is only to allow a death sentence for a crime where the death sentence was used previously, despite similar cases resulting in life sentences. Death penalty reversals also vary greatly by state. This wide disparity in reversal rates raises concerns about discrepancies in the law resulting in an unreliable system where some states overturn most death sentences and others rarely reverse them. For example, Wyoming has had 1 execution while Texas has had 524. Hence, questions are raised on whether the objective of retribution is met. Regarding deterrence, there has been conflicting data, but one study shows the majority of leading criminologists do not believe the death penalty deters crime more effectively than long-term prison sentences.
While some may argue that the death penalty does, in fact, meet its objectives, it is undeniable that racial disparities in sentencing exist. According to the Baldus Study, one of the most comprehensive studies on race and capital punishment, defendants charged with killing white victims are 4.3 times more likely to receive the death penalty than defendants charged with killing black victims. Furthermore, cases with black defendants and white victims are more likely to result in a death sentence than cases with any other racial combination of defendant and victim. The Supreme Court reviewed this study in McCleskey v. Kemp but ruled not to reverse McCleskey’s death sentence on the basis of the study because doing so would have ‘threatened the entire criminal justice system.’
This case and others before it have strengthened the legislation allowing capital punishment despite implementation issues. With countless cases ruling it constitutional, the decision to keep the death penalty will be up to each state. The lack of drugs and Glossip v. Gross may cause some states to reconsider sustaining their capital punishment laws, but for those with strong support for capital punishment the only change will be in the method used.