Cruel and Unusual Punishment: The Debate Over the Death Penalty in Arkansas

Dina Rosin (CMC ’20)

An ongoing debate over the death penalty has been taking place in Arkansas over the last several weeks. The state is racing to execute convicts before the end of April. This urgency is present because one of the drugs necessary for executions will expire after that date. If Arkansas fails to execute the convicts on death row before the drugs expire, it is unclear if the state will have a legal method to perform executions. The deadline has created an opportunity for opponents of the death penalty, as they are attempting to engage in various appeals with the goal of pushing these cases past the time limit and thus buying time while they consider new ways to block the executions. These legal challenges to the death penalty shift the dialogue towards how specific means of administering executions can constitute cruel and unusual punishment. As such, the future legal decisions regarding Arkansas’ cases may create a precedent for the constitutionality of the death penalty.

Arkansas has identified eight death row individuals that it plans to execute. If successfully carried out, these executions will put to death the most people in such a short time since the Supreme Court decided in Gregg v. Georgia (1976) that the death penalty does not violate the “cruel and unusual” clause of the Eighth Amendment. Capital punishment, typically, is only prescribed for crimes such as murder, treason, war crimes, genocide, or crimes against humanity. However, even in these cases, capital punishment must be careful not violate the “cruel and unusual” clause of the Eighth Amendment.

The inmates slated for execution may be saved by an Eighth Amendment challenge to the lethal injection procedure that Arkansas wants to use. One of the drugs, midazolam, has been the subject of an ongoing debate concerning its use in botched and failed executions in Oklahoma and other states. Meanwhile, Arkansas claims that its procedures are different from these other incidences and will not cause the agonies suffered by these previous inmates. If these drugs are, in fact, inflicting an unreasonably painful death, it would likely be seen as a violation of the “cruel and unusual” punishment clause. Additionally, the drug companies are trying to keep their drugs from being used in the executions, arguing that they were obtained under false pretenses. Though this objection does not have legal weight, it is indicative of the decreasing options for states to carry out capital punishment.

Currently, the strategy of “flooding the zone” with multiple and overlapping appeals and requests for stays seems to be working. Arkansas and the courts are in agreement that these legal questions must be resolved before the convicts are executed. If these appeals take too long, the drugs used for the execution will expire, and the execution will be halted. This is significant because Arkansas will face even greater difficulty in acquiring necessary drugs for the lethal injections after the expiration, whether or not the courts decide if they constitute “cruel and unusual” punishment.

While a large number of Americans are in favor of the death penalty, support for capital punishment is dropping according to polls from both Gallup and Pew. There are now 17 states that have abolished this ultimate penalty.  A number of people who have been executed were proved to be innocent after their death, and other prisoners who had been ticketed for the death penalty have been later exonerated. These stories have likely added to the reduction in support. It will be interesting to follow this saga in Arkansas through the end of April and, likely, beyond. These legal challenges make clear that using drugs as a means of execution is becoming impractical, as drug companies are becoming increasingly resistant to supplying necessary drugs. Arkansas may come to the conclusion that other states have – that even if there is support for the death penalty in their state, and the courts find it constitutional, capital punishment may be too difficult to successfully administer.

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