Eighth Amendment Right To Be Free From Cruel and Unusual

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					 Eighth Amendment Right To Be Free From
   Cruel and Unusual Punishment and The
               Death Penalty

 Eighth Amendment—Excessive bail shall not be required, nor excessive fines
 imposed, nor cruel and unusual punishment inflicted.

States Hesitate to Lead Change on

When a state panel recommended last April that Tennessee abandon the three
chemicals used in executions across the nation in favor of the single drug usually used
in animal euthanasia, the state’s corrections commissioner said no.

Though the move would have simplified executions and eliminated the possibility of
excruciating pain, the commissioner, George Little, said Tennessee should not be “out
at the forefront” of a decision with “political ramifications,” according to recently
disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most
eagerly anticipated death penalty case: Why have states so doggedly and uniformly
clung to an execution method with the potential to inflict intense pain when a simpler
one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky
case that has led to a de facto national moratorium on executions, it will mostly be
concerned with the question of what standard courts must use to assess the
constitutionality of execution methods under the Eighth Amendment, which bars cruel
and unusual punishment.

But beyond that is the more practical question of why all 36 states that use lethal
injections to execute condemned inmates are wedded to a cumbersome combination of
three chemicals.

The answer, experts say, seems to be that no state wants to make the first move.
Having proceeded in lock step to adopt the current method, which was chosen in part
because it differed from the one used on animals and masked the involuntary
movements associated with death, state governments would prefer that someone else,
possibly the courts, change the formula first.

“The departments of correction are dug in,” said Deborah W. Denno, an authority on
methods of execution at the Fordham University Law School. “There’s safety in
numbers. But if one state breaks from that, the safety in numbers starts to crumble.”

“If you change,” Professor Denno continued, “you’re admitting there was something
wrong with the prior method. All those people you were executing, you could have been
doing it in a better, more humane way.”

In the Baze case, lawyers for John D. Rees, the Kentucky corrections commissioner,
said the three-chemical combination was safe and painless and produced a dignified
death. Using only a single barbiturate, they said, was untested, could result in
distressing and disruptive muscle contractions, and might take a long time. The method
is the one most commonly used for pets, sometimes in combination with a sedative.

Lawyers for the Kentucky inmates, Ralph Baze and Thomas C. Bowling, said a
barbiturate would bring on fatal cardiac arrest “within a matter of minutes.” They
conceded that muscle contractions were possible, but said that inmates were strapped
down and that witnesses could be told that the movements did not indicate pain. And
they said the three-chemical combination, which is not used in veterinary euthanasia,
was itself once untested.

Mr. Baze is on death row for killing a sheriff and a deputy sheriff who were trying to
serve him with a warrant. Mr. Bowling is there for killing a couple whose car he had
damaged in a parking lot.

Lethal injection protocols nationwide were copied from one developed in Oklahoma in
1977 — the year after the Supreme Court reinstituted the death penalty — based on
advice from a medical school professor to a state senator. They call for a short-acting
barbiturate to render the inmate unconscious, followed by a paralytic and then a
chemical to stop the heart.

If the first chemical works, there is no dispute that the process is quick and painless. If
it does not, there is no dispute that the inmate will suffer intense and terrifying pain.

But because the inmate is paralyzed, it may not be possible to tell whether the first drug

When Texas was considering whether to adopt the Oklahoma protocol in the late 1970s,
the medical director of Texas’ corrections department, Dr. Ralph Gray, consulted a
veterinarian in Huntsville, Tex., Dr. Gerry Etheredge.

“I told him,” Dr. Etheredge recalled Wednesday, “that in veterinary medicine when we
euthanized an animal most of us used pentobarbital, a general anesthetic, which is very
potent and long-lasting, and we overdosed it and everything went smoothly. It was very
safe, very effective and very cheap.”

Dr. Gray, who has since died, had only one objection, Dr. Etheredge recalled. “He said it
was a great idea except that people would think we are treating people the same way
that we’re treating animals. He was afraid of a hue and cry.”

Texas adopted Oklahoma’s three-chemical combination and started using it to execute
inmates in 1982.

These days, opponents of that protocol make the opposite argument of the one Dr. Gray
feared. They say that death row inmates deserve to be treated at least as well as

Two other states have considered revising the three-chemical combination.

In March, a Florida commission appointed to study lethal injections endorsed the three-
chemical combination. But it indicated uneasiness about the second drug in the
combination, pancuronium bromide, a paralytic that, used alone, would leave the inmate
conscious but suffocating and unable to cry out.

The Florida commission urged the state to explore “more recently developed
chemicals” to substitute for the paralytic drug that might “make the lethal injection
execution procedure less problematic.”

In May, a California commission issued a report saying it had considered recommending
a single drug, which has “the advantages of being simpler to administer and virtually
eliminates the potential for pain.” But the commission rejected it because a single-
chemical protocol s untested, may result in involuntary muscle movements and might
take a long time.

The Tennessee committee saw it differently.

“The primary advantage of the one-drug protocol,” according to its draft report in
April, “is that it is much simpler to administer.” It also “has the advantage of eliminating
both of the drugs which, if injected into a conscious person, would cause pain,” the
report added. “All of the medical experts consulted by the state were very supportive
of the one-drug protocol,” it said.

Indeed, Judge Aleta A. Trauger of Federal District Court in Nashville said in a decision
in September, “No medical testimony supports the proposition that the one-drug
protocol causes any suffering or that it prolongs the pronouncement of death.”

In that decision, Judge Trauger barred the execution of Edward J. Harbison, who is on
death row for beating a woman to death in a burglary in 1983. Judge Trauger found that
the corrections commissioner was “deliberately indifferent to the plaintiff’s excessive
risk of pain” because he rejected the use of a single drug.

That decision is on appeal.

Judge Trauger appeared unimpressed with the testimony of Mr. Little, the corrections
commissioner. She said Mr. Little had “at first denied that the protocol committee
recommended to him the one-drug protocol” but ultimately admitted that it had.

At a hearing in September, Judge Trauger questioned Mr. Little directly about his
statement that political considerations had played a role in his decision to retain the
three-chemical combination.

“Did you mean that the governor might look soft on execution or soft on convicted
murderers if he went to a one-drug-protocol?” Judge Trauger asked. “He might be
pandering to the anti-death-penalty people?”

Mr. Little said no, but he did not elaborate. He did say, according to the notes of Steve
Elkins, the governor’s lawyer, that the one-chemical protocol could be a fallback if the
courts struck down the three-chemical combination. “Vice versa, no fallback,” the notes

A spokeswoman for Mr. Little said he had no comment beyond what he had said in
court. A spokeswoman for the attorney general declined to comment, citing the pending

Some experts on executions say the debate over which chemicals to use is the wrong
one. States have adopted a process that appears humane because it looks like medical
treatment, Professor Denno said. But looks can be deceiving, she added.

“To me,” Professor Denno said, “the firing squad is the most humane and perceived to
be the most brutal.”

 Legal Standards Applicable to Eighth Amendment Jurisprudence in Context of
                                Death Penalty

                         Gregg v. Georgia, 428 U.S. 153 (1976).

      The Eighth Amendment is not regarded as a static concept. The amendment must draw
       its meaning from the evolving standards of decency that mark the progress of a maturing
       society. Thus, an assessment of contemporary values concerning the infliction of a
       challenged sanction is relevant to the application of the Eighth Amendment. This
       assessment does not call for a subjective judgment. It requires, rather, that the courts
       look to objective indicia that reflect the public attitude toward a given sanction.

      The Eighth Amendment demands more than that a challenged punishment be acceptable
       to contemporary society. The court also must ask whether it comports with the basic
       concept of human dignity at the core of the amendment. Although the court cannot
       invalidate a category of penalties because the court deems less severe penalties
       adequate to serve the ends of penology, the sanction imposed cannot be so totally
       without penological justification that it results in the gratuitous infliction of suffering.

      Public perceptions of standards of decency with respect to criminal sanctions are not
       conclusive. A penalty also must accord with "the dignity of man," which is the basic
       concept underlying the Eighth Amendment. This means, at least, that the punishment not
       be "excessive." When a form of punishment in the abstract rather than in the particular is
       under consideration, the inquiry into "excessiveness" has two aspects. First, the
       punishment must not involve the unnecessary and wanton infliction of pain. Second, the
       punishment must not be grossly out of proportion to the severity of the crime.

      In assessing a punishment selected by a democratically elected legislature against the
       constitutional measure, the courts presume its validity. The courts may not require the
       legislature to select the least severe penalty possible so long as the penalty selected is
       not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests
       on those who would attack the judgment of the representatives of the people.

      It is apparent from the text of the Constitution itself that the existence of capital
       punishment was accepted by the Framers.

      The death penalty is said to serve two principal social purposes: retribution and
       deterrence of capital crimes by prospective offenders.

     Static: Not subject to change in amount or time; unchanging in expression; arranged or agreed

     Penology: The theory, scientific study, and practice of how crime is punished, how prisoners
     are managed, and how rehabilitation is handled.

     Gratuitous: unnecessary and unjustifiable.

     Retribution: Something done or given to somebody as punishment or vengeance for something
     he or she has done.

     Deterrence: To discourage somebody from taking action or prevent something from
     happening, especially by making somebody feel afraid or anxious.

 Lethal Injection
 When this method is used, the condemned person is usually bound to a gurney and a member of
 the execution team positions several heart monitors on this skin. Two needles (one is a back-
 up) are then inserted into usable veins, usually in the inmates arms. Long tubes connect the
 needle through a hole in a cement block wall to several intravenous drips. The first is a
 harmless saline solution that is started immediately. Then, at the warden's signal, a curtain is
 raised exposing the inmate to the witnesses in an adjoining room. Then, the inmate is injected
 with sodium thiopental - an anesthetic, which puts the inmate to sleep. Next flows pavulon or
 pancuronium bromide, which paralyzes the entire muscle system and stops the inmate's
 breathing. Finally, the flow of potassium chloride stops the heart. Death results from anesthetic
 overdose and respiratory and cardiac arrest while the condemned person is unconscious.
 Medical ethics preclude doctors from participating in executions. However, a doctor will certify
 the inmate is dead. This lack of medical participation can be problematic because often
 injections are performed by inexperienced technicians or orderlies. If a member of the
 execution team injects the drugs into a muscle instead of a vein, or if the needle becomes
 clogged, extreme pain can result. Many prisoners have damaged veins resulting from
 intravenous drug use and it is sometimes difficult to find a usable vein, resulting in long delays
 while the inmate remains strapped to the gurney.

Lethal Injection - Execution by lethal injection is the most common method used to put
condemned inmates to death today. It is achieved by the intravenous delivery of a deadly
quantity of three different drugs. The inmate is placed on a gurney and his ankles and wrists are
restrained. A regular saline IV line is started in both arms. Upon the signal of the warden, a
large dose of sodium thiopental (a common hospital anesthetic) is delivered, causing
unconsciousness. This is followed by pancuronium bromide, which is a muscle-relaxer which
paralyzes the lungs and diaphragm. This causes the inmate's respiration to slow significantly.
Finally, potassium chloride is introduced into the IV, which causes a fatal cardiac arrest. Death
usually occurs approximately 7 minutes after the lethal injection begins. According to the Texas
Department of Criminal Justice, the cost for the drugs used in lethal injection is $86.08.

For execution by the electric chair, the person is usually shaved and strapped to a chair with
belts that cross his chest, groin, legs, and arms. A metal skullcap-shaped electrode is attached
to the scalp and forehead over a sponge moistened with saline. The sponge must not be too wet
or the saline short-circuits the electric current, and not too dry, as it would then have a very
high resistance. An additional electrode is moistened with conductive jelly (Electro-Creme) and
attached to a portion of the prisoner's leg that has been shaved to reduce resistance to
electricity. The prisoner is then blindfolded. After the execution team has withdrawn to the
observation room, the warden signals the executioner, who pulls a handle to connect the power
supply. A jolt of between 500 and 2000 volts, which lasts for about 30 seconds, is given. The
current surges and is then turned off, at which time the body is seen to relax. The doctors wait
a few seconds for the body to cool down and then check to see if the inmate's heart is still
beating. If it is, another jolt is applied. This process continues until the prisoner is dead. The
prisoner's hands often grip the chair and there may be violent movement of the limbs which can
result in dislocation or fractures. The tissues swell. Defecation occurs. Steam or smoke rises
and there is a smell of burning.
At postmortem, the body is hot enough to blister if touched, and the autopsy is delayed while
the internal organs cool. There are third degree burns with blackening where the electrodes
met the skin of the scalp and legs.

Electrocution - This method of execution involves using a direct application of electric current to the
inmate to cause brain death. The inmate's head is shaved so that an electrode will make direct
contact against their skull, while a leg is shaved for the placement of an electrode there as well. The
inmate is strapped to the electric chair, which is not actually electrified, but serves to restrain the
inmate as the current from the electrodes are applied. The electric current comes from the head
electrode at an intensity between 1,500 and 2,250 volts for a period lasting 30 seconds to a full
minute. This is then followed by alternating voltages of varying intensity for another minute. The
current exits the body via the leg electrode, much in a manner that lightning would seek to hit the
ground. The neurons of the inmate's brain are overwhelmed by the current immediately, rendering
the inmate brain dead within milliseconds. The body is likely to change color and the flesh may catch
fire. There is usually a smell of burning skin after a person is electrocuted, which led many states to
shift to lethal injections.

Gas Chamber
For execution by this method, the condemned person is strapped to a chair in an airtight
chamber. Below the chair rests a pail of sulfuric acid. A long stethoscope is typically affixed to
the inmate so that a doctor outside the chamber can pronounce death. Once everyone has left the
chamber, the room is sealed. The warden then gives a signal to the executioner who flicks a
lever that releases crystals of sodium cyanide into the pail. This causes a chemical reaction that
releases hydrogen cyanide gas. (Weisberg, 1991) The prisoner is instructed to breathe deeply to
speed up the process. Most prisoners, however, try to hold their breath, and some struggle. The
inmate does not lose consciousness immediately. According to former San Quenton, California,
Penitentiary warden, Clifton Duffy, "At first there is evidence of extreme horror, pain, and
strangling. The eyes pop. The skin turns purple and the victim begins to drool." The inmate dies
from hypoxia, the cutting-off of oxygen to the brain. At postmortem, an exhaust fan sucks the
poison air out of the chamber, and the corpse is sprayed with ammonia to neutralize any
remaining traces of cyanide. About a half an hour later, oderlies enter the chamber, wearing gas
masks and rubber gloves. Their training manual advises them to ruffle the victim's hair to release
any trapped cyanide gas before removing the deceased.

Gas Chamber - When a condemned inmate is executed by lethal gas, the prisoner is restrained in
a chair inside an air-tight chamber. The executioner opens a valve which allows hydrochloric
acid to flow into a pan behind the chair. He then adds a quantity of potassium cyanide or sodium
cyanide crystals into the acid by pulling a lever. The resulting chemical interaction produces white
puffy clouds of lethal hydrocyanic gas. This gas affects the ability of the body to process blood
hemoglobin and unconsciousness generally occurs within a few seconds after the prisoner takes a
breath. If the prisoner tries to hold their breath, the process can take much longer and can cause
convulsions. It is comparable to having a severe heart attack. After the prisoner is pronounced
dead, usually within five to fifteen minutes, air filters are turned on and corrections officers
wearing gas masks enter the chamber to confirm death. The body is decontaminated with bleach
solutions and the body must be decontaminated before being handled by an undertaker. The gas
chamber is now only available as an option to inmates in California and Arizona. Most states which
once used lethal gas abandoned the method in favor of lethal injection due to the difficulty of
safely maintaining these facilities, some of which were shown to be at risk for leaks.

   Firing Squad
   For execution by this method, the inmate is typically bound to a chair with leather straps across
   his waist and head, in front of an oval-shaped canvas wall. The chair is surrounded by sandbags
   to absorb the inmate's blood. A black hood is pulled over the inmate's head. A doctor locates the
   inmate's heart with a stethoscope and pins a circular white cloth target over it. Standing in an
   enclosure 20 feet away, five shooters are armed with .30 caliber rifles loaded with single rounds.
   One of the shooters is given blank rounds. Each of the shooters aims his rifle through a slot in
   the canvas and fires at the inmate. The prisoner dies as a result of blood loss caused by rupture
   of the heart or a large blood vessel, or tearing of the lungs. The person shot loses consciousness
   when shock causes a fall in the supply of blood to the brain. If the shooters miss the heart, by
   accident or intention, the prisoner bleeds to death slowly.

   Firing Squad - Execution by a firing squad usually involves a team of five shooters, only some of
   whom use real bullets with others using blanks. The team aims for the trunk of the body, as a
   target is placed on the heart of the condemned inmate. Currently this method is only used in
   Utah, but may be dropped from availability in that state in the near future.


   For execution by this method, the inmate may be weighed the day before the execution, and a
   rehearsal is done using a sandbag of the same weight as the prisoner. This is to determine the
   length of 'drop' necessary to ensure a quick death. If the rope is too long, the inmate could be
   decapitated, and if it is too short, the strangulation could take as long as 45 minutes. The rope,
   which should be 3/4-inch to 1 1/4-inch in diameter, must be boiled and stretched to eliminate
   spring or coiling. The knot should be lubricated with wax or soap "to ensure a smooth sliding
   action," according to the 1969 U.S. Army manual.
   Immediately before the execution, the prisoner's hands and legs are secured, he or she is
   blindfolded, and the noose is placed around the neck, with the knot behind the left ear. The
   execution takes place when a trap-door is opened and the prisoner falls through. The prisoner's
   weight should cause a rapid fracture-dislocation of the neck. However, instantaneous death rarely
   If the inmate has strong neck muscles, is very light, if the 'drop' is too short, or the noose has
   been wrongly positioned, the fracture-dislocation is not rapid and death results from slow
   asphyxiation. If this occurs the face becomes engorged, the tongue protrudes, the eyes pop, the
   body defecates, and violent movements of the limbs occur.

Hanging - The condemned prisoner is weighed prior to the execution. A specific amount of force must
be applied to the neck in relation to the weight of the inmate. If this is properly done, death is by
dislocation of the third or fourth cervical vertebrae. The noose is placed behind the prisoners left ear so
as to snap the neck upon dropping when the trap door opens. If not precisely done, the inmate will
strangle to death on the rope, die from lack of blood to the brain, or if dropped too far, decapitation can
occur. This is rare though and most inmates died from instantaneous broken necks. Today, hanging is
only available as an option to condemned inmates in Washington State.