John Paul Stevens is right: The death penalty is unconstitutional
On Tuesday night, the state of Oklahoma executed Clayton Lockett — sort of. After a horribly botched execution that saw Lockett writhe and gasp in clear agony for 40 minutes, he finally died of a heart attack.
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The torture of Lockett was the predictable result of a failed experiment. Oklahoma attempted to execute the condemned prisoner with a new lethal injection "cocktail" that had not been tried before, composed of drugs that came from a secret source. After an ugly conflict between Oklahoma's courts and Fallin and her allies — an episode that threatened the judiciary's independence, as detailed by Andrew Cohen — the state went ahead with an untried method. It shouldn't be terribly surprising that the outcome was disastrous.
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Combined with the fact that it's impossible to know whether even non-botched lethal injections inflict pain, there's no reason whatsoever to believe that lethal injection is any better than the deeply flawed methods it replaced — indeed, it may well be worse.
And that's really only scratching the surface of the problem. A recent study shows that as many as 300 innocent people were sentenced to death in the 30 years since the death penalty was reinstated in 1973, and innocent people have almost certainly been put to death.
The two defendants in this case notwithstanding, the death penalty does not reliably identify the "worst" offenders. A more accurate description would be that it is arbitrarily applied to some people, while other people in the same states who commit similar or more heinous crimes are spared. Furthermore, the death penalty is disproportionately applied to cases of African-Americans accused of killing white victims.
When the Supreme Court upheld the constitutionality of lethal injection in the 2007 case Baze v. Rees, Justice John Paul Stevens quoted his predecessor Byron White to express the view that the death penalty as currently applied in the United States represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
In his new book Six Amendments, Stevens proposes amending the Constitution to explicitly make the death penalty unconstitutional. I agree with his proposed amendment, but it is becoming increasingly hard to deny that the death penalty as practiced already violates the Eight Amendment's prohibition on cruel and unusual punishment.
http://theweek.com/article/index/260834/john-paul-stevens-is-right-the-death-penalty-is-unconstitutional