Punishment: When is it Cruel and Unusual?

The death penalty is the ultimate punishment imposed in the American criminal justice system. 

 

One hundred eight countries have completely abolished the death penalty, while another 55 have effectively abolished it by not executing anyone over the last ten years, according to Aljazeera. The news agency reports that 55 countries, including the United States, retain the death penalty. These countries carry out the punishment in various ways and for a wide array of crimes.

 

Punishment in the United States is administered for four widely accepted penological reasons: retribution, deterrence, incapacitation, and rehabilitation. 

 

Why Do We Execute Prisoners

 

The first two reasons are the only ones applicable to the death penalty: retribution and deterrence. 

 

The Pew Research Center reported in June 2021 that 60% of Americans favored the death penalty, although 78% of them believed there is “some risk” of innocent people being executed.

 

According to the Death Penalty Information Center, there have been 186 people since 1973 who have been exonerated after being wrongly convicted and sentenced to death. Roughly eight out of the ten people who favor the death penalty believe executing innocent people is just the cost of doing death penalty business.

 

History of Executions Runs Deep

 

That belief is deeply rooted in the retribution DNA of American justice. There have been roughly 15,500 executions carried out in this country since 1608. There have been nearly 5,000 documented lynchings and probably at least another 5,000 not documented.  Race play a role in prosecution and application of the death penalty.  In the state of Texas, 45.5% of inmates on death row are Black, 25.8% are Latino.

 

That social and racial need for power, control, and retribution is the birthplace of the American death penalty. 

 

Executions are not carried out as frequently today as they were in the past. Eleven executions were carried out in 2021, the lowest number since 1988. Death penalty opponents celebrate fewer executions as a good thing, but the declining use of the death penalty has created human collateral damage.

 

Death Row Inmates Held Longer, Growing Older

 

Death row inmates are growing older and spending longer periods on death row. Next month, Texas plans to execute Carl Wayne Buntion, who was convicted and sentenced to death more than 31 years ago. According to the Texas Department of Criminal Justice, if Buntion is executed, it will be the third time Texas has executed someone who has spent 31 years on death row. 

 

If executed, Carl Buntion, 78, will become the oldest inmate executed by Texas. The oldest person executed in the United States since the resumption of the death penalty in 1977 was 83-year-old Walter Moody, put to death in Alabama in 2018 by the State of Alabama. That same year Nebraska executed 60-year-old Casey Dean Moore, who had spent the longest period on death row prior to execution—38 years.

 

66-year-old Gary Alvord was spared an execution fate when he died of natural causes after spending more than 40 years on Florida’s death row, while the longest-serving death row inmate—71-year-old Raymond Riles—was resentenced to life imprisonment last year after spending more than 45 years on Texas’ death row.

 

The question, then, is: when is a punishment so delayed to be cruel and unusual.

 

Retiring Associate Supreme Court Justice Stephen Breyer has raised this very question in dissenting opinions in recent years. The Justice said that “where a delay, measured in years, reflects the State’s own failure to comply with the Constitution’s demands, the claim that time has rendered the execution inhumane is a particularly strong one.”

 

Given the systemic problems with the criminal justice system and inequities in applying the death penalty, many would rightly argue the punishment itself is cruel and unusual. But when is incarcerating a person on death row for decades, under conditions not fit for an animal, much less a human being, cruel and unusual? It appears proponents of the death penalty would argue “that’s what they get.” Until, of course, the “they” is one of “theirs.”

 

 

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