“Cruel and Unusual Punishment”: The Death Penalty and the United States


“To take a life when a life has been lost is revenge, not justice”

– Archbishop Desmond Tutu

On the 15th of March this year, governor of Maryland Martin O’Malley officially signed into a law a statute which repealed the death penalty, making its abolition certain. Maryland became the eighteenth US state to do so, following on from Connecticut, who repealed it in 2011. The move was welcomed by human rights organizations such as Amnesty International, as well as the British government, which hopes that the decision of the Maryland state legislature will inspire other states to do so as well.

However, this decision is not the only landmark concerning the evolution of the US’s relationship with capital punishment this year. Last month in Georgia, US, mentally disabled death row inmate Warren Hill was pulled back from the brink of death when he was granted a second stay of execution. His execution had been planned in precise details; he had exchanged an emotional final goodbye with friends and family, and had been presented with his last meal. Under the impression that he had just an hour left to live, he was given a dosage of Ativan, a drug designed to alleviate anxiety. But just an hour later, the execution was called off owing to pressure by Georgia lawyers. The agonising process, which took a significant toll on Warren’s emotional health, was likened to “mental torture” by human rights lawyers in the state.

The case of Hill’s execution was a particularly controversial one which had sparked international criticism because he was found by medical professionals to be mentally retarded. In the 2002 Supreme Court decision of Atkins v Virginia, it was decided that sentencing mentally retarded criminals to death was illegal, as it constituted “cruel and unusual punishment”- outlawed by the eighth amendment.

The constitutional question of what exactly falls under the category of “cruel and unusual punishment” has long been a contentious one. Capital punishment is ratified on a state, not federal level, meaning that it is legal in some states, such as Alabama, and outlawed in others. Numerous Supreme Court decisions have ruled on details of the practice, such as whom it can be carried out on and the best method to do so, but due to the legislative rights of individual states, the Court cannot easily enforce an outright ban.

Aside from the doctrine of states’ rights, capital punishment has so far been legally and morally justified where “the punishment fits the crime”. That is to say, it is proportionate, and therefore neither cruel nor unusual, to sentence murderers to death. But this has been brought into question increasingly in recent years. Liberal Supreme Court justices, such as Ruth Bader Ginsburg, have come out in opposition of it, and with more and more states looking likely to repeal the practice themselves, it seems that attitudes towards capital punishment in the US are shifting.

In spite of capital punishment being considered by many as atrocious in liberal democracies, there lacks a sizeable political movement against the death penalty in America. Its legality failed to become an important topic during the 2012 Presidential Election Campaigns, and President Obama has kept suspiciously quiet on his views. He has offered a modest judgement on its use, stating that “There are extraordinarily heinous crimes… in which it may be appropriate”, but without any mounting pressure from the Democratic Party or the American public at large, the issue of capital punishment remained swept under the political rug. It remains to be seen whether the wishes of the UK government will amount to tangible change in US legislation; what we define as “cruel and usual punishment” changes on a day by day basis, but the Constitution, however, does not.


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