Does the Death Penalty Violate the Constitution?

Throughout the history of the United States, the death penalty has served as the ultimate form of punishment for serious crimes. Since its institution, capital punishment has been a subject of debate among lawmakers, leaders, and citizens alike. Murder, treason, and arson are examples of crimes that would result in capital punishment. The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishment, while the Sixth Amendment of the Constitution ensures that an accused individual receives a speedy and public trial in front of an impartial jury. Does the death penalty violate the 8th amendment? The Federal Government has a responsibility to weigh the moral consequences of taking human life and ensuring a fair trial for the accused. Accordingly, the death penalty violates Eighth and Sixth Amendment rights and therefore should be deemed unconstitutional and morally in-just.

Many Americans oppose the death penalty because they doubt the constitutionality of the practice, including this poster on and myself who say, “The 8th amendment prevents the government from punishing a criminal in some strange or unusual way. If someone is found guilty of stealing or breaks a law, then the court can’t cut off their hand or make them sing some annoying songs on television. So death penalty violates the 8th amendment because the government is not allowed at all to give you a cruel or unusual punishment.” In a paper written by Mark B. Samburg, the execution in the case of Baze v. Rees is analyzed. In the Franklin Circuit Court, the presiding judge over Baze v. Rees determined that a particular lethal injection procedure in the Kentucky Protocol directly opposed Eight Amendment rights. According to Judge Roger L. Crittenden, “The portion of the execution protocol calling for the insertion of an intravenous catheter in [Baze’s] neck created a substantial risk of wanton and unnecessary infliction of pain,” and was therefore determined to be unconstitutional. The court ordered the Kentucky Protocol to be modified upon the court’s recommendations before carrying out the execution of the inmate. Although the court did not outlaw the death penalty in its entirety, it instead raised questions about the different lethal injection protocols and electric chair protocols employed throughout the country. The decision introduced concern that the methods of capital punishment actually induce extreme amounts of physical and psychological pain. Baze v. Rees demonstrates that certain execution procedures in the United States constitute a violation of the Eighth Amendment and that it is the duty of the judicial system to rectify the violations.

A more recent and controversial case that was highly popularized was the case of Dennis McGuire. McGuire was given an untested combination of drugs and died a visibly agonizing and elongated death. Witnesses saw that he was squirming and gasping for air. This recent event proves that at least some lethal injections are not painless and quick. As far as other concoctions are concerned, there is no proof as to what the recipient is feeling while they are paralyzed from the drug cocktail. They may also very well be experiencing excruciating pain but unable to express it due paralysis.


On the other hand, people in favor of capital punishment believe that it is the most appropriate response to crimes against humanity, such as murder. For example this poster from the debate website says, “Well, take it into your own terms. Someone killed, kidnapped, or raped you, or your family. You would probably want them to be put to death, because killing in vain is wrong. But, as a punishment is completely necessary because it will send a message into the community stating that it is wrong, and if you do this, it will come with severe punishment, and lead to a result of lower crime rate.” Supporters believe that the penalty provides a sense of closure and satisfaction to the family of the victim. These families can take comfort in the fact that the criminal will not repeat the felony. Author Melissa Green discusses specific issues pertaining to the death penalty and states, “Death penalty advocates argue that the execution of convicted murderers deter others from committing murder for fear that they will also be executed, and also that murderers will be incapacitated: once dead, they will have no opportunity to commit additional murders. Others claim that the death penalty offers a type of supreme justice that is similar to the Biblical concept of ‘eye for an eye’. In the book The Death Penalty by author Lauri Freidman, “The punishment of murderers has been earned by the pain and suffering they have imposed on their victims,” explains Dudley Sharp, Vice President of Justice for All, a criminal justice reform organization that is in favor of the death penalty. Yet, proponents often neglect to mention the constitutionality of such an extreme punishment. According to the reasons stated previously, proponents insist upon retribution and deterrence. Both reasons rely on a subjective understanding of morality rather than the impartial justice offered by the Constitution of the United States. Consequently, citizens and lawmakers should make sure that personal convictions do not overshadow the sanctity of a human life. Taking the life of a human being is cruel under any circumstance because it prohibits the victim from enjoying “life, liberty, and the pursuit of happiness” as emphasized by our nation’s forefathers.

death penalty

The United States Constitution ensures that all accused individuals receive a fair and speedy trial in accordance to the Sixth Amendment. However, the process involved in death penalty cases ensures exactly the opposite. Although the court system takes capital punishment cases very seriously, decisions and reviews require extra time in order to process all evidence thoroughly. Due to this extra attention to detail, statistics show that capital punishment trials take longer than any other type of trial in the judicial system. “Duke University estimated that death penalty trials take 3 to 5 times longer than typical murder cases” reports author Harry Henderson. Harry Henderson, the author of Capital Punishment, explains that the death penalty basically subjects the accused to two different trials. “Two trials instead of one will be conducted: one for guilt and one for punishment.”  Additionally, many cases involve the process of appeals, which lengthens the time that inmates are on death row and must wait for another decision. Although the judicial system intends to avoid errors in judgment through scrutiny and caution, errors can still occur and the inmate suffers by losing their right to a speedy trial.

Impartiality in a jury of peers is difficult to guarantee in a death penalty case. Since the death penalty is a topic of controversy, each person reserves their own opinion on the matter. In his book, Legal Lynching, Reverend Jesse Jackson indicates, “There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury recommended it and when a judge should give it.” Several types of biases exist in the court room and the process of jury selection cannot guarantee that a juror is free of all biases, especially in relation to the death penalty.

Death Penalty 3

Biases involving gender, race, and religion can influence an entire jury’s judgment. For example, African Americans and other racial minorities are often targets of racism. In death penalty cases, African Americans represent a larger portion of the minorities that are condemned to death row. In a recent study of all officially recorded executions, 86% of minority executions were of black inmates. Even though the execution of African Americans was 38% when considering all races, the number of African Americans on death row has been increasing steadily. Bias in the case of gender is difficult to track statistically because the prejudice is dependent upon personal values, convictions, and upbringings that are not discussed openly without proper context. Additionally, prejudice against Islam has risen in recent years due to the terrorist attacks of September 11, in which an Islamic extremist group claimed responsibility for mass murder. Though statistical information is limited for religious bias in capital punishment cases, the issue about how to handle Muslim terrorists formerly imprisoned in Guantanamo Bay demonstrates the on going debate in current events.

According to an article by author Joe Messerli on the website balanced politics, bias can work in two ways to violate the prisoner’s rights. First, jury members who have prejudices against certain races, genders, or religions may readily opt for the death sentence against an inmate that belongs to a certain category. On the other hand, “the thought of agreeing to kill someone influences some jury members to acquit rather than risk the death. Some prosecutors may go for a lesser charge rather than force juries into a death-or-acquit choice.” In either situation, it is difficult to determine whether justice would be served, because impartiality is compromised and the Sixth Amendment is violated.

dealth 4

In conclusion, the death penalty is unconstitutional because it violates the Sixth and Eighth Amendments of the United States Constitution. Taking the life of another human being (even as punishment) is inherently cruel. Methods of execution involve an incalculable amount of suffering and pain on the part of the accused. A judge or jury cannot feel the inmate’s pain in his or her final moments. Major court decisions have even determined that certain methods of execution impose cruel and unusual punishment. Additionally, proponents of this punishment often cite vengeance, retribution, and deterrence in support of the practice rather than realizing the constitutional violations. Finally, the process by which capital punishment cases are resolved in the United States offers little guarantee for a speedy trial and impartiality on the part of a jury. Since there are so many types of biases, it is difficult to eliminate all of them in a group of individuals who come from different walks of life.

Works Cited:

Banner, Stuart. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.

Friedman, Lauri. The Death Penalty. Farmington Hills, MI: Greenhaven Press, 2006.

Green, Melissa S. “The Death Penalty: Specific Issues.” Focus on the Death Penalty. Justice Center, University of Alaska Anchorage. 2005. 6 Dec 2009. <;.

Henderson, Harry. Capital Punishment. New York, NY: Facts on File, 2006.

Jackson, Jesse, and Jr. Jesse. Legal Lynching. Emeryville, CA: Marlowe & Co, 1998.

Messerli, Joseph. “Should the death penalty be banned as a form of punishment?” Death Penalty. 21 Nov 2009. 6 Dec 2009. <;

Sager, Josh. “The Death Penalty Must Be Discarded to the Dustbin of History.” Word Press Blog. 15 April 2014. <;

Samburg, Mark. “Cruel and Unusual? The Bifurcation of Eighth Amendment Inquiries After Baze v. Rees.” Harvard School of Law. 2009. Harvard University Press, Web. 6 Dec 2009. <;.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s