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THE DEATH PENALTY by Michael Vassallo THE DEATH PENALTY By Michael Vassallo INTRODUCTION In early 1992, months after a fire burst out in his home in Corsicana, Texas, just 50 miles south of Dallas, Cameron Todd Willingham was arrested for murder and arson. What first appeared a mere tragedy, a family house burning in a fire and three infants perishing from smoke inhalation, soon appeared much more suspicious once investigators deemed arson as the source of the fire. Soon after, the press reported Willingham out drinking and laughing only days after his children’s funeral, while eyewitnesses from the night of the fire reported Willingham escaping from the house and not even attempting to rescue his children. At his trial, Cameron Todd jailhouse informant Johnny Webb testified that Willingham had Willingham and his confessed his guilt to him in prison. With Webb’s testimony and an three infant children, abundance of circumstantial evidence, Willingham was convicted who died in a fire in and sentenced to die by lethal injection. December 1991. After his 2004 execution, doubts began to emerge. Despite Willingham’s profile as an abusive father, the lack of physical The New Yorker evidence and Willingham’s continued pleas of innocence raised questions. These doubts were only exacerbated when Johnny Webb recanted his testimony and claimed he had lied on the stand to implicate Willingham. Though Willingham has not and likely will never be exonerated, the questions of his guilt raised newfound doubts not only about the American criminal justice system, but also about the death penalty as a whole. If he was still alive, was there a chance he could have been eventually exonerated? Should there be a higher barrier of proof for executions? Is it even ethical for the state to execute any criminal at all, whether or not they are guilty? HARVARD MODEL CONGRESS EXPLANATION OF THE ISSUE Historical Development Furman v. Georgia Capital punishment came to the Americas from Britain in the – A 1972 Supreme seventeenth century. The Eighth Amendment of the Constitution Court case that ruled prohibits “cruel and unusual punishment” and the Fourteenth the death penalty’s Amendment enshrined that the government could not deprive application by states anyone of their life without due process. Since its introduction, to be in violation of individual states have differed in how they have addressed the the Eighth death penalty. For example, since gaining statehood Michigan has Amendment never conducted an execution (“Michigan”). In the mid-twentieth century, capital punishment faced a series of legal challenges. In 1972, the Supreme Court struck down all uses of the death penalty in Furman v. Georgia, on the grounds that its application by states violated the Eighth Amendment (“Furman v. Georgia, 408 U.S. 238 (1972)).” This ruling created a de facto moratorium on Lethal Injection – federal and state executions that ended four years later after the The primary way that 1976 ruling in Gregg v. Georgia. This case set criteria for how executions are capital punishment should be implemented and deemed it not conducted today. inherently unconstitutional. Lethal injections Since then, nearly 8,000 Americans have been sentenced to be typically involve executed, 1500 have been executed, and 165 have been freed from injecting individuals death row (“Innocence”). During that same time, American doctors with three drugs. pioneered the use of lethal injection, in which individuals are injected with a cocktail of drugs meant to slow the heart and cause immediate death. This particular method of execution replaced hanging, firing squads, and the electric chair as the primary mechanisms in the nation. Lethal injection’s constitutionality was upheld in a 2008 Supreme Court decision. However, questions Sodium Thiopental about this method have been raised as drug companies have halted – A rapidly acting manufacturing the necessary drugs, and states have seen a rise in general anesthetic botched executions in part because doctors, who are the most that was often used to qualified to give these injections, are never involved in executions sedate prisoners because of the profession’s ethical code. Specifically, because the during lethal process involves the injection of three drugs, the first of which is an injections. As of now, anesthetic, if the inmate is not entirely knocked out for the it is virtually administration of the second two injections, then the death is far inaccessible in the US from a painless and peaceful process. and states have begun searching for Scope of the Problem alternative anesthetics. Lethal Injection Oklahoma’s state medical examiner Jay Chapman pioneered lethal injection in 1977 as an alternative to what many believed to be the unnecessarily brutal electric chair. The procedure consists of three injections: an anesthetic, a paralytic, and a drug that triggers © HARVARD MODEL CONGRESS 2021 – REDISTRIBUTION OR REPRODUCTION PROHIBITED 2 HARVARD MODEL CONGRESS cardiac arrest. Two of the drugs are especially tortuous, likening it to “being buried alive with fire in your veins” (Segura). As such, the anesthetic is perhaps the most important drug. However, in 2011, Europe banned the export of sodium thiopental, the drug most commonly used as an anesthetic in lethal injections, and American Midazolam – A less drug companies stopped producing it, making the drug virtually effective alternative to inaccessible (Ford). In searching for a replacement, some states sodium thiopental have adopted the depressant Midazolam, which depresses the that induces subject’s nervous system but does not entirely knock them out, sleepiness but does meaning that the pain from the injection procedure is not entirely not knock the subject numbed. out entirely. Lethal injection as a result has come under fire, and in 2014 Oklahoma inmate Clayton Lockett suffered a heart attack during a botched execution. Since then, the lack of access to proper 42% of those on anesthetics, the administration of executions by amateurs, the death row are history of botched executions, and the fact that many inmates on black, despite being death row request the ability to choose a different means of execution has prompted question of if lethal injection should be the only 13% of the way that states conduct capital punishment at all. population. Racial and Economic Disparities One of the most prominent arguments among anti-death penalty advocates is that the process discriminates along racial and socioeconomic lines. According to the ACLU, a criminal defendant is 4.3 times more likely to be executed if he is black than if he is white. Additionally, 90% of death row inmates cannot afford legal counsel and are instead represented by overworked and ineffective public defenders (“The Case Against the Death Penalty”). Especially It is estimated that considering most death sentences come after defendants refuse to approximately 3% accept plea deals for life in prison, it is easy to imagine the of executions from importance of effective legal counsel. Additionally, black criminals 1890 to 2010 were who kill white victims are statistically more likely to be sentenced to botched, with die than white defendants killing someone of any race. lethal injection Prosecutorial Misconduct and Wrongful Executions having the highest Obviously, the biggest concern with capital punishment in the rate of botched United States is the fear of executing an innocent person. While the executions. US has executed over 1500 people, 168 former death row prisoners have been exonerated and set free. Of prisoners who end up being executed, there has not been a proven instance of the US executing someone innocent, but courts are generally wary to reconsider cases of prisoners already dead (“Innocence”). However, there are many instances of death row cases, such as Willingham’s, where incriminating testimony was the primary evidence driving the conviction, and after the defendant’s execution the testimony was recanted with the witness citing compulsion by prosecutors as the reason for their initial lies. © HARVARD MODEL CONGRESS 2021 – REDISTRIBUTION OR REPRODUCTION PROHIBITED 3 HARVARD MODEL CONGRESS Tenth Amendment Constitutionality of Abolition – The Tenth Currently capital punishment is legal in 28 states as well as Amendment to the federally. 22 states and Washington, DC have either passed laws Constitution states: abolishing it or their state Supreme Courts have ruled it “The powers not unconstitutional. The federal government had not carried out a delegated to the federal execution since 2003, until an execution in the Summer of United States by the 2020. In 2019 Attorney General William Barr had announced that Constitution, nor the Justice Department would seek to carry out executions of five prohibited by it to the death row inmates convicted of federal crimes (Simpson). Even if states, are reserved to Congress passed a law ending federal executions, capital the states punishment would still be legal in 28 states, who would be able to respectively, or to the execute prisoners convicted of state crimes. The overall punishment people.” entirely is in question owing to the Tenth Amendment, which preserves a certain level of state autonomy. As long as capital punishment is technically constitutional in the eyes of the Supreme Antiterrorism and Court, it is unlikely that Congress could legally ban states from Effective Death conducting executions outright and would instead need to create a Penalty Act sort of incentive system. (AEDPA) – Passed in 1996, this bill Congressional Action streamlined the death penalty appeals In the years after Furman v. Georgia, Congress has passed very process and allowed few bills with regards to the death penalty. In fact, the policy for executions to be surrounding capital punishment has been litigated mostly within used against the states and in the courts. In 1996, however, Congress passed the terrorists who use Antiterrorism and Effective Death Penalty Act (AEDPA), weapons of mass which streamlined the appeals process for capital punishments and destruction to kill or allowed for the use of the death penalty on individuals who threaten threaten Americans.
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