The Death Penalty: Cruel But Usual Punishment?

Ryan Heshmati

May 26, 2023

Capital punishment, the execution of an individual, has been contentious in American legal and political society. Over 100 nations no longer practice the death penalty; however, the United States is not one of them. Of the 27 states that legally permit the death sentence, only 20 actually have the ability to carry it out because many states, like California, have Governor-imposed suspensions on executions. A 2021 Pew Research Center poll found that 59% of Americans either somewhat favor or strongly favor the death penalty for those convicted of murder.

Following the five-to-four Supreme Court ruling in Furman v. Georgia, the United States underwent a period without the death penalty. Justice Potters found that “…death sentences are cruel and unusual [in violation of the eight amendment] in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted …, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” The Court ruled that the inconsistent application of the death penalty rendered it cruel and unusual and, ergo, unconstitutional. State governments were swift to act, however, and passed new capital punishment laws that would stand the Supreme Court’s test of inconsistency. Ultimately, opponents of the death penalty faced a major blow with Gregg v. Georgia, where the Court ruled that the death penalty was not inherently unconstitutional; once the issue of arbitrary application was resolved, the Court found the death penalty was no longer cruel and unusual.

Many Americans like to think of execution as painless; however, a great deal of scientific research suggests otherwise. In an NPR article on lethal injection, UC Davis’ Dr. David Lubarasky describes one of the effects of one drug commonly used in executions, “‘Once it reaches the heart, it stops the heart, and you do die. But in the process there is a period of just intense and searing pain.’” The article goes on to explain growing medical concern about the failure of executioners to prevent extreme pain in the process.

The death penalty’s legal status in the United States is complicated by a history involving a major Supreme Court ruling (Furman v. Georgia) whose impact was significantly reined in with the later precedent Gregg v. Georgia. Despite the medical concerns of doctors who point out the potential cruelty of current methods, in many states, execution persists today. Until public opinion changes, that likely will continue to be the case.