Debate Forum: 08/19

Forum Center: Waiting for death might be cruel and unusual punishment

By Alex Culpepper

The Eighth Amendment is part of the Bill of Rights, the first 10 amendments to the U.S. Constitution. Part of this liberty insurance was protection from cruel and unusual punishment, and the country had good reason to include this portion of the amendment in the books. It was not uncommon up through the 18th century for people convicted of crimes to be locked in the stocks, flogged, branded or, in England, to be packed to a faraway island (hello, Australia). 

Death was also a common sentence, and the gallows and other means had seen frequent use for nearly any crime through the 18th century. But people gradually wondered whether a better way to levy punishment was possible, meaning a person who stole crumbs from a baker didn’t need to swing for it. So, the framers included a few words about limiting the creative ways civil offenders could be punished. 

Eventually, with the death penalty, the electric chair replaced the gallows, and lethal injection replaced the electric chair – all in the name of humanity. But a new twist on cruel and unusual punishment has surfaced from a challenge by a federal judge in California, and he has ruled it is cruel and unusual for those sentenced to die in California to wait on death row for decades and not get executed. So, on those grounds, he has vacated the death sentence of a man convicted of murder in 1995, and the decision has sparked a new debate on an old issue.

Supporters of the judge’s ruling say it is cruel and unusual to let someone languish for decades in prison not knowing whether they will be executed or not. They add this situation really exposes what they see as political posturing, because a state such as California has a death penalty, yet it rarely provides the resources to carry out the law as it was intended. In fact, since the death penalty was reinstated in California in 1978, more than 900 people have been sentenced to death – only 13 have been executed.

Supporters also say the deterrent effect sought from the death penalty loses its punch after a convict sits in prison until old age. They say all of this fails the citizens, who are the ones supporting the justice system and expecting it to function as promised.

Opponents of the ruling say the state’s inaction should not be benefiting prisoners on death row, and they say in the past, the Supreme Court has ruled delays in executions are not unconstitutional. They further say these are usually the worst criminals, and even with continual postponement of execution, they deserve what they have coming. 

Legal experts call the federal judge’s ruling “unprecedented,” and it stands a good chance of being upheld in an appeals court. If that happens, the Supreme Court will eventually hear the case. Experts are divided, however, when it comes to predicting what the Supreme Court will do. It has sided against similar arguments in the past, but an unprecedented lower court ruling could be the one to change everything.

Reach DCP forum moderator Alex Culpepper at

Debate Forum Question of the Week:

Does the fact prisoners convicted to death row often wait decades to be executed constitute cruel and unusual punishment?

Debate Left: Kalifornia

By Benjamin Tomkins

A discussion of the morality of capital punishment does not benefit much from research. Because putting another human being to death is so personal, so too is the reaction of the individual. Opinions quickly become volatile and, as an electron and a positron annihilate upon contact, so too does cynicism collide with the bleeding heart.

Therefore, for some unbelievably idiotic reason, I chose to open the conversation about the death penalty with my wife within the first two hours of an 11-hour car ride to California.

Fortunately the powder keg didn’t ignite, but it bloody well could have. She is her mother’s child, and I once had the following conversation with said mother-in-law:

Me: Yes, I’m glad Hitler is dead.

M-I-L:  But you don’t know what he went through in his life. You just can’t judge.

Me: What he went through was about 12 million Jews. I can judge the s*** out of that.

M-I-L: (Looking at me as if I’m Hitler) Still…

At any rate, we were able to come to some mutually-agreed conclusions about the application of the death penalty ruling without having it levied against my own person on the side of the road. 

We both agree holding a prisoner on death row for longer than a few years is cruel and unusual punishment, but not quite in the way the judge described it. Death itself, as articulated by the judge, is not a punishment at all. It is simply moving from a state of being to non-being, and there is no hell in which they will burn for eternity. Execution is a conscious choice by society that an individual poses so great a threat to the rest of humanity we cannot accept even the barest possibility they might ever escape.

The argument he posits is that condemning an individual to a horrible existence of waking up every day wondering if the hangman is coming for you for 17 years is cruel and unusual. There is one freedom though. In death, the torture will end. Life in prison without possibility of parole, however, puts you in almost the same situation except the torture is carried on as long as possible. Is this not a worse punishment?

My wife and I talked around this one for quite a while. The real difference between death and life in prison, we decided, is, although locked up forever, the lifer can still have a bare thread of human access. They can communicate with their families, read, write down their thoughts and still involve themselves with the universe in some way. Although their freedom is gone, they retain some possibility of meaningful existence. They might even end up being a positive force in the world. The dead man, as they say, tells no tales. 

As such, I feel the judge’s ruling stands incomplete. No, a prisoner should not be on death row for several years, but not because of the waiting. If society has decided a criminal should be executed, it should require a standard of evidence so high it should not take 17 years to exhaust all possible appeals and procedural hurdles in the first place. It would be cruel and unusual to levy such a dire punishment when any remote possibility still exists the prisoner may be innocent.

In fact, if an appeals court has to review anything in the original verdict concerning guilt or innocence other than checking for typos, I don’t think the death penalty should be invoked at all. It can’t be taken back if you’re wrong, so you have to be sure. The job of the appeals court should be to ensure the lower court made no errors, and then validate the crime does indeed merit death. 

Also, the death sentence should only be imposed for crimes that injure society as a whole – either in fact or by implication. Treason, for instance, is an attack upon the entirety of the American people. The Boston Marathon Bombings would be an example of a crime against individuals, but which reflects sadism that could just as easily have been perpetrated against any member of society. I would even go so far as to say a crime against someone explicitly because of their race could merit the death penalty, depending on circumstances, because the criminal is clearly willing to kill without any individual discrimination. It’s more than just first-degree murder – it’s a premeditated killing of someone who symbolizes a larger hatred.

Therefore, I believe all capital cases should be federal crimes. If it is truly a crime worthy of death, then it must be a crime that is committed against every citizen of this country in some way. Having different laws in different states makes the death penalty unusual by definition, and it provides unequal protection under the law.  

Furthermore, because society’s interest is not to effect reform but to preserve itself, death should only be imposed if the evidence is so clear, the sentence can be carried out with confidence in relatively short order – perhaps a year. 

That’s my disagreement with California judge’s ruling. If a convicted person’s guilt or innocence is so unsure as to warrant many years and multiple appeals, then death should have never been handed down in the first place.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at

Debate Right: The capital punishment circus

By Dave Westbrock

The question often arises regarding what constitutes cruel and unusual punishment. My comments should not be interpreted as either an argument in favor or opposed to capital punishment, but based on current practices affecting the validity of arguments pursuant to the execution of these laws in the several states. I am personally conflicted on the basis of both on moral and political grounds. Unfortunately, the history of this institution has shown confusion as well as political and moral conflict both in legislation and adjudication. 

On July 16, U.S. District Judge Cormac J. Carney ruled California’s application of the death penalty constituted an “unpredictable period of delay preceding [prisoners’] actual execution.” Further, he said the system is arbitrary and “serves no legitimate purpose.” 

The case was based on the 1992 rape and murder of Ernest Dewayne Jones’ girlfriend’s mother, the sentence having been rendered in 1995. In his opinion, it is therefore unconstitutional, as it violates the ban on cruel and unusual punishment, although not forthrightly stating a ban on all capital punishment. 

The crux of the decision is based on the dearth of death sentences being carried out in California. Of note is the fact no one in California has been executed in the last eight years. Additionally, 40 percent of 748 death row inmates have been on death row for more than 19 years, and only 13 of 900 since 1978 have been executed. The decision does not seem to render capital punishment unconstitutional, but who shall be executed and who shall remain on death row seemed – at least to the judge – to be arbitrary. 

Let us look at the reasons for long delays in execution of death row inmates across the country, since this decision is likely to have national repercussions. First, anyone convicted of a capital crime is automatically entitled to a direct appeal, one either mandatory in some states or optional in others. Such an appeal is based solely on evidence presented in trial and pleads before the state’s highest court. After such appeal, a writ of certiorari may be made to the U.S. Supreme Court. Further steps may be taken on two levels, including state post-conviction appeal and the federal habeas corpus. This final process may include appeals to U.S. District Court, followed by those to the court of appeals and, finally, the United States Supreme Court, which may grant or deny hearing. Finally, the defendant may appeal to executive clemency with the state’s governor or authorized body.

Complicating the issue is the method of delivering the lethal agent. The most humane way yet devised following firing squad, hanging and electric chair seems to be lethal injection, now being challenged by courts, further delaying the delivery of final justice and covered in a previous Dayton City Paper debate (“Lethal injection – a humane way of death?,” May 6, 2014)

Obviously, some cases may require longer periods to decide, taking into consideration successful appeals, retrial and additional appeals in the face of reconviction and further appeals thereafter. In that regard, since details and state provisions vary, and circumstances and players vary, no degree of uniformity may be expected. For example, a typical appeals and trial may average 6-10 years, while in Texas, some have been executed after 25 years on death row. 

Therefore, does an extended appeal process constitute cruel and unusual and arbitrary punishment, or is it extending compassionate stay for a defendant who may have been falsely accused? The greater use of DNA testing undoubtedly will result in fewer and fewer suffering this fate based on circumstantial evidence. The utter irony of this decision is the fact those opposed to capital punishment generally favor a long appeals process in order to grant a greater chance a defendant may win at least life sentence after multiple appeals. Does Judge Carney’s decision then result in more death row inmates going to final judgment quicker and possibly less justly? Or is it possible he is generally opposed to capital punishment and this is an easy way to make it seem so based on constitutional grounds? Such decisions reflect the hubris now exercised by federal judges to meet political opinions over what has, until the last half of the 20th century, been left to state discretion. 

Due process is defined as legal proceedings that are fair, the proceedings of which will be given to one before surrendering life, liberty or property. Such definition assumes a community taking pains to protect the lives, property and well-being of their local town, city or county regulated by state legislation, while protecting individual rights. The federal judiciary is a poor substitute except in unusual circumstances. For example, a murder committed by a hardened criminal is more likely to cause suffering and dislocation of local sensitivities on a local community in Ohio than it is in Washington, D.C., and recidivism more likely to affect locals. This is a major argument for keeping criminal justice, including capital crime, local (state-regulated) and not demanding federal oversight for every capital infraction. Furthermore, we are learning in the last five years, the federal government is a poor insurer of individual rights.

The people of the United States should make a judgment on the merits or demerits of capital punishment based on moral and political grounds and judicial behavior should reflect that decision, rather than the layers of equivocation that have ruled the court room for the last several decades. If it is unjust and immoral, eliminate the death penalty, but if judged fair and appropriate, the judiciary should stop playing legal games.

Dr. Westbrock has been in private medical practice for 35 years. He was the Republican candidate for the U.S House of Representatives in 1994 and 1996. He has written and lectured extensively on the subject of health care reform and health care policy. He can be reached at

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