Home In the News The Constitutionality of the Death Penalty After Botched Executions

The Constitutionality of the Death Penalty After Botched Executions


By Gary Minor, criminal justice faculty at American Military University

The botched executions that occurred in Ohio and Oklahoma have many people questioning the legality of the death penalty. In this article, I hope to explain why the death penalty is constitutional in the United States and exactly how it is controlled.

Overview of Amendments Relevant to the Death Penalty
The death penalty in the United States has three basic controls: the Fifth Amendment, the Fourteenth Amendment, and the Eighth Amendment. To make it simple, the Fifth and the Fourteenth determine the legality and the constitutionality of the death penalty in the United States. The Eighth Amendment controls the manner in which the death penalty can be executed in the United States. The Fifth Amendment states in part: “…nor be deprived of life, liberty, or property, without due process of law” (U.S. Const. amend. V). These three parts each have a meaning at law.

  1. Life: the death penalty
  2. Liberty: prison or jail
  3. Property: RICO, eminent domain

prison doors openSo long as due process of law is granted, the Constitution allows the state to take life, liberty, and property. The Fifth Amendment along with the Fourteenth Amendment confirms the unconstitutionality of bills of attainder. A bill of attainder is defined in the Constitution under article I, sections 9 and 10. A bill of attainder is “a legislative act that inflicts punishment without first the person (defendant) already having had a trial in a court before a judge” (Gardner & Anderson, 2006, 2009, 2012, p. 17, 18).

The Fourteenth Amendment confirms the ideals of the Fifth Amendment with one addition. The Fourteenth states in part: “…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV). Besides denying the state the right to seize property, life, or liberty without due process of law, it further prohibits states from denying equal protection of the law.

Equal protection in this context means the states must apply the laws equally to all of their citizens. We cannot pick and choose which laws apply to which citizens nor create laws specifically designed to harm a group of citizens. Equal protection requires the state to treat all its citizens alike. However, there are times in which the state may pass laws that only affect one group of people. For example, in California in the early 1980s the state established statutory rape laws. The way the statute was written only men could be charged with statutory rape, women could not. This was taken up on appeal to the U.S. Supreme Court in Michael M. v. Superior Court of Sonoma County, March 23, 1981. The Supreme Court held that it was in fact proper to create such a law that only applies to men.

Legality of How Executions Are Carried Out
Now that we have discussed legality and the constitutionality of the death penalty let us take a look at the Eighth Amendment. When examining the death penalty as it relates to the Eighth Amendment, we see that it controls the manner in which executions are carried out. The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S. Const. amend. VIII).

As Justice William J. Brennan stated in 1972: “the cruel and unusual punishments clause, like the other great clauses of the Constitution, is not susceptible of precise definition” (Furman v. Georgia, 408 U.S. 238 at 258). The linchpin of determining whether a punishment is cruel and unusual has historically been the application of proportionality. This is where the court determines the appropriateness of a punishment based on the particular crime. In the cases of Coker v. Georgia (1977) where the defendant was sentenced to death for the rape of an adult woman and again in 2008 in Kennedy v. Louisiana where the defendant was sentenced to death of the rape of a child, the U.S. Supreme Court held that the death penalty in these cases were not proportional to the crime committed.

The court held in Coker that the Eighth Amendment normally bars punishments that are barbaric, but also those that are excessive in relation to the crime committed. Similar beliefs were echoed in the Kennedy case. The Supreme Court has only one time declared the death penalty unconstitutional and that was in Furman v. Georgia. However, this unconstitutional decision was not based on the punishment, it was based on the application of the law.

The question today is: Can the Supreme Court (or will the Supreme Court) ever declare the death penalty unconstitutional because there is no viable method of executing someone without causing pain and the lingering death?

Although the Supreme Court has never said what constitutes cruel and unusual punishment they have defined it in some cases. In the case of Wilkerson v. Utah (1878), they provided some examples of what constitutes cruel and unusual. They found torture or unnecessary cruelty to violate the Eighth Amendment such as emboweling someone alive, beheading, and quartering. In the case of In re Kemmler (1890) the court found that punishments that involve torture or lingering death, something more than the mere extension of life violate the Eighth Amendment.

Which brings up the question in this case: Are the executions that occurred in Ohio and Oklahoma in violation of the Eighth Amendment?

Both cases clearly involved a lingering death.

Clayton Lockett’s botched execution just a few days ago in Oklahoma appears to fit the qualification of lingering death. “Lockett, a convicted murderer, received such an injection Tuesday night, writhed and grimaced on a gurney in a scene described by witnesses as horrific and died 43 minutes later of a heart attack” (Markon & Berman, 2014, para. 2).

Similarly, in January, Ohio inmate Dennis McGuire took more than 26 minutes to die, gasping repeatedly as he lay on a gurney with his mouth opening and closing. Later that month, Oklahoma inmate Michael Lee Wilson’s final words were, “I feel my whole body burning.” (Salter, 2014, para. 9).

In the matter of In re Kemmler, the Supreme Court reasoned, “the punishment of death is not cruel, within the meaning of that word as used in the Constitution”; instead, the word “cruel” “implies…something inhumane and barbarous, something more than the mere extinguishment of life” (In re Kemmler, 136 U.S. 436 at 447).

It seems that in the case of executions in Oklahoma and Ohio, we have more than a mere extinguishment of life.

Do you agree or disagree? What other factors contribute to the constitutionality of executions?

Editor’s Note: Check out this infographic about the death penalty in the U.S.

Gary MinorAbout the Author: Gary Minor completed his bachelor’s degree in Police Science and Administration with a minor in Pre-Law from Washington State University in Pullman, WA. He received his MBA in Information Systems at City University in Washington while attending night school. After completing his MBA, he attended Seattle University School of Law and obtained his Juris Doctorate of law. He also obtained his police executive certification, a requirement to be a police chief executive of a law enforcement agency in Washington, and is a certified police officer. He is also certified to practice law in the state and federal courts in and for the State of Washington. His academic interests include police executive management, law and justice, juvenile justice and ethics in law enforcement. Professor Minor has significant executive experience, having served as a Chief of Police, President of the Snohomish County Police and Sheriff’s association and the South Snohomish County Police Advisory committee. He also served two terms as the Chairman of the Board for Emergency Services Coordinating Agency (ESCA), a FEMA affiliate.



Furman v. Georgia, 408 U.S. 238 (1972).

Gardner, T. J., & Anderson, T. M. (2006, 2009, 2012). Criminal Law (11th ed.). Belmont, CA: Wadsworth.

Markon, J., & Berman, M. (2014, April 30). Experts say botched execution in Oklahoma is unlikely to bring big death-penalty changes. The Washington Post. Retrieved from http://www.washingtonpost.com/politics/experts-say-botched-execution-in-oklahoma-is-unlikely-to-bring-big-death-penalty-changes/2014/04/30/98abee4e-d0a5-11e3-a6b1-45c4dffb85a6_story.html

Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (March 23, 1981).

Salter, J. (2014, April 30). Botched execution offers new evidence to attorneys. Akron Beacon Journal. Retrieved from http://www.ohio.com/news/nation/botched-execution-offers-new-evidence-to-attorneys-1.484812

U.S. Const. amend. V.

U.S. Const. amend. VIII.

U.S. Const. amend. XIV.


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