Capital punishment (lethal physical punishment) is a popular topic, and much has been written about the death penalty. One excellent resource for learning about the death penalty is the death penalty information center (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and application.

• Link to Death Penalty Information Center: https://deathpenaltyinfo.org/
• Link to Death Penalty Information Center Fact Sheet https://deathpenaltyinfo.org/documents/FactSheet.pdf
• See Death Penalty Fast Facts at https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html

The use of the death penalty as a response to crime in industrialized nations raises many questions:

• Is the death penalty a deterrent?
• Is the death penalty justified by principles of retribution?
• Is the death penalty morally or ethically justified?
• Does it cost more to impose a death sentence or to impose a true-life sentence?
• Are factually innocent individuals erroneously executed (and if so, how often)?
• Is any particular manner of execution cruel and unusual?
• Is the death penalty, in itself, cruel and unusual punishment?

Courts answer only the last two questions, and, to date, the Court has upheld every manner of execution that is currently approved in the United States: firing squad, electrocution, gas chamber, hanging, and lethal injection. The Court appears willing to uphold capital punishment and has found it is not disproportionately cruel and unusual when the crime resulted in the death of another. It has reached an opposite result when the crime did not involve the victim’s death, i.e., when the defendant was convicted of rape of an adult and a child rape. See Coker v. Georgia, 433 U.S. 584 (1977).

The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that the death penalty is an inappropriate punishment for any crime that does not involve the taking of human life. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed for the death penalty for the rape of a child less than twelve years of age. Justice Kennedy (not the defendant, Kennedy) wrote, “the Eighth Amendment bars imposing the death penalty for the rape of a child where the crime did not result and was not intended to result, in the death of the victim.”

4.10.1 Mental Illness, Mental Deterioration, and the Death Penalty (Example)

According to Court interpretations, the Eighth Amendment forbids the execution of someone who is legally insane. Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to determine his mental condition upon making a preliminary showing that his current mental state would bar his execution. Panetti. v. Quarterman, 551 US 930 (2007). On February 27th, 2019 the Court affirmed that the states may not execute a death row inmate who was unable to understand his punishments due to dementia. In Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old defendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer in 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and the inability to remember his crime.

Justice Kagan’s majority opinion held that an inmate’s failure to remember his crime does not by itself render him immune from execution, but “such memory loss still may factor into the ‘rational understanding’ analysis that Panetti demands.” If memory loss “combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend” his death sentence, “then the Panetti standard will be satisfied.” ____ U.S. ____, at ____ (2019).

According to the Court, it doesn’t matter if these “mental shortfalls” stem from delusions, dementia, or some other disorder. Courts must “look beyond any given diagnosis to a downstream consequence”—whether a disorder can “so impair the prisoner’s concept of reality” that he cannot “come to grips with” the meaning of his punishment” (Atkins v. Virginia, 536 U.S. 304, 2002).