Eighth Amendment of the Bill of Rights

This case dates back to 1998 when Patrick Kennedy was convicted of the aggrevated rape of his step-daughter and sentenced to death under a Louisiana law which allows the death penalty for aggrevated rape when the victim is a child (under 12 years old). “It was not disputed that the victim was brutally raped. On the morning of March 2, 1998, the victim was transported by ambulance to Children’s Hospital where she was examined in the emergency room. The victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina.

Dr. Scott Benton of Children’s Hospital testified as an expert in pediatric forensic medicine that the victim’s injuries were the most serious he had seen, within his four years of practice, that resulted from a sexual assault” (LASC. org, 2008). The brutality of the rape and victim’s impact statement were used at the sentencing where a jury sentenced Kennedy to death. The issues are whether the death penalty is cruel and unusual punishment for a rape and whether it matters if the rape was of an adult or a child.

Another case the Supreme Court will hear this year involved a Texas case attempting to define when a person has been accused of a crime and is eligible for guaranteed legal defense. In Rothgery v. Gillespie County, TX, the plaintiff argues that when he was taken before a magistrate judge in Texas and held because the judge declared their was probable cause, he should have had the right to an attorney. The county has argued that because no prosecutor was involved, the right to an attorney had not yet been invoked (supremecourt.

gov, 2008). This case may then impact several other legal issues garnering much public attention including the “detention” of terror suspects without representation as allowed for under the Patriot Act. In United States v. Ressam, the question before the court is: “Section 844(h)(2) of Title 18, United States Code, prescribes a mandatory ten-year term of imprisonment for any person who “carries an explosive during the commission of any felony which may be prosecuted in a court of the United States.

” (supremecourt. gov, 2008). And in Baze v. Rees, the Court is presented with yet another death penalty case. In this case, though the main case was brought to the court via writ, additional petitioners have been given leave to add to the case via “In forma pauperis”. This case focuses on whether death via lethal injection is cruel and unusual punishment (supremecourt. gov, 2008). The questions as defined by the court are:

“Although the Court has authorized civil actions challenging portions of a method of execution, it has not addressed the constitutionality of a method of execution or the legal standard for determining whether a method of execution violates the Eighth Amendment in over 100 years-- leaving lower courts with no guidance on the law to apply to the many lethal injection challenges filed since the Court’s rulings allowing the claim in a civil action. Lower courts have been left to look to cursory language in the Court’s opinions dealing with the the death penalty on its face and prison conditions.

As a result, the law applied by lower courts is a haphazard flux ranging from requiring “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial risk”, “unnecessary risk,” “substantial risk of wanton and unnecessary pain,” and numerous other ways of describing when a method of execution is cruel and unusual. Considering that at least half the death row inmates facing an imminent execution in the last two years have filed suit challenging the chemicals used in lethal injections, certiorari petitions and stay motions on the issue are arriving before the Court so often that this issue is one of the most common issues.

Thus, it is important for the Court to determine the appropriate legal standard, particularly because the difference between the standards being used is the difference between prevailing and not. This case presents the Court with the clearest opportunity to provide guidance to the lower courts on the applicable legal standard for method of execution cases. This case arrives at the Court without the constraints of an impending execution and with a fully developed record stemming from a 20-witness trial.

The record contains undisputed evidence that any and all of the current lethal injection chemicals could be replaced with other chemicals that would pose less risk of pain while causing death than the tri-chemical cocktail currently used. Although this automatically makes the risk of pain associated with the use of sodium thiopental, pancuronium bromide, and potassium chloride unnecessary, relief was denied on the basis that a “substantial risk of wanton and unnecessary pain” had not been established.

This squarely places the issue of whether “unnecessary risk” is part of the cruel and unusual punishment equation and whether an “unnecessary risk” exists upon a showing that readily available alternatives are known. The Kentucky Supreme Court’s decision gives rise to the following important questions: I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?

II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used? III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?

IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected? ” (Supremecourt. gov, 2008). Along with Kennedy v. Louisiana, this case has the potential to be the biggest case of the year for the Supreme Court, possibly deciding once and for all the issue of whether the death penalty violated the Eighth Amendment of the Bill of Rights.

Clearly, the court could stick to previous precedence and rule narrowly regarding the constitutionality of lethal injection as a form of implementing the death penalty, but it seems likely that given the growing national concern about the death penalty in general the Supreme Court could use this opportunity to clear up any ambiguity regarding the right to avoid cruel and unusual punishment. Before it has even reached an opinion, this case has already had a huge impact on the states which have a death penalty.

Virtually all states have issued a moratorium on executions pending the Supreme Court decision. The legal issue is of course whether the process of lethal injection violates the cruel and unusual punishment provision in that, in some cases, the cocktail of drugs used to induce death results in a temporary paralytic condition in which the criminal cannot express pain or call for help, but during which they are probably in pain. Some opponents of lethal injection argue that even if they are not in physical pain, there is an emotional abuse that accompanies forcing the victim to wait while they die.

The question facing many states which have a death penalty is whether the court will simply insist that the states develop a new method of lethal injection or whether it will rule that the entire practice is unconstitutional. Clearly, the Supreme Court has focused much of its docket on procedural arguments between states and several economic issues, but there are at least three cases which deal directly with the interpretation of the Bill of Rights. This then begs the question what impact the recently reconstituted court will have on these major issue and whether it will usher in a new form of judicial restraint.