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St. Thomas Law Review

First Page

248

Document Type

Article

Abstract

This article reviews in detail the history of capital punishment, and the United States' constitutional proscription of "cruel and unusual" punishment. Examined are the Magna Carta of 1215, English Bill of Rights of 1689, and various bills of rights of the early American colonies, as they were critical to the Drafters' enlightened understanding of corporal punishment, which eschewed the barbaric and inhumane and culminated in the Eighth Amendment's prohibition of "cruel and unusual" punishment. Included, also, is an examination of the early cases alleging Eighth Amendment violations, for they developed the judiciary's determination of whether certain methods of capital punishment, such as the firing squad and the electric chair, were too "cruel" or "unusual" to pass constitutional muster. This article further exposes the great societal costs engendered by the United States' enlightened approach to capital punishment. Specifically discussed are the enormous expenses beget by the death penalty process, and how these expenses deplete local state economies, distort economic decisions, and render capital punishment anti-productive. This article then particularly examines the litigation concerning lethal injections, and the recent inclusion of pentobarbital into the death-producing cocktail. The ultimate question posed is thus: considering the recent turn of economic events, can the United States continue to maintain the death penalty when life imprisonment without parole may prove to be more cost-efficient?

Litigation on behalf of death row inmates has exposed problems at every step of the process, including the mixing of the drugs; the setting of the IV lines; the administration of the drugs; and the monitoring of their effectiveness. At each step, discovery has revealed untrained and unreliable personnel working with inadequate equipment under poorly designed conditions. Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate's consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of "a slightly or marginally safer alternative" is, as the plurality notes, insufficient. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a [s]tate fails to adhere to contemporary standards of decency if it declines to employ those measures.

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