Constitutional Killing

Guest Post by Colin Dayan, Robert Penn Warren Professor in the Humanities, Vanderbilt University

There is a real legal history to the death penalty. In some ways it is as barbaric as the fact of execution itself. It also helps to explain why the death penalty in the United States will not go away.

Since the 18th century, “cruel” and “unusual” have been coupled in our legal language and courts. Their rhetorical ambiguity has been alternately used to protect prisoners and to legitimize violence against them. Only at the start of the 20th century in Weems v. United States, and again in 1958 with the opinion of Chief Justice Earl Warren in Trop v. Dulles, did the Supreme Court turn away from the mere ban on “barbarous” punishments and begin to consider whether punishments were disproportionate to the offense. In Trop, Warren emphasized a flexible interpretation of the 8th Amendment that would adapt to enlightened public opinion. The “dignity of man,” he said, was the linchpin of the 8th Amendment.

The 8th Amendment attracted great attention during Furman vs. Georgia in 1972. This landmark case declared capital punishment to be cruel and unusual — and therefore unconstitutional. Not only was it “degrading to human dignity,” wrote Justice William J. Brennan Jr., but it also had proved to be “irrational and arbitrary.” Justice Potter Stewart said: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court voted 5 to 4 to strike down every capital punishment law in the United States.

Why Does Colin Dayan Support This Initiative?

Dr. Colin Dayan is Robert Penn Warren Professor in the Humanities and Professor of Law at Vanderbilt University.  She is the author of The Law is a White Dog: How Legal Rituals Make and Unmake Persons (2011) and The Story of Cruel and Unusual (2007), as well as many other books, articles, and op-eds.

Dr. Dayan writes:

How cruel and unusual is the practice of humane and sanitized death? In Baze v. Rees (2008), the Supreme Court upheld Kentucky’s method of lethal injection. It rejected the claim that the effects of the 3-drug protocol qualified as cruel and unusual punishment under the 8th Amendment. Even though the paralyzing drug pancuronium bromide leaves an improperly sedated inmate unable to move or cry out, but conscious and in excruciating pain, the Court ruled that the procedure is more humane, more dignified than others. In other words, it is less disturbing to witnesses. 

The Tennessee Department of Correction has announced that only pentobarbital will be used to execute death row inmates despite a shortage of the drug.  In other words, our state will use the single-drug lethal injection method instead of the three-drug method it has used in the past. But since the drug is in short supply individual pharmacies can concoct recipes to make it, increasing the risk of an agonizing, degrading death.

The “painlessness” of lethal injection depends on an excessive saturation of the body with chemicals.  This “ethics of care” always remains what Sister Helen Prejean once called “an elaborate ruse.”  The familiar surround of a clinic, as I once wrote in “The Blue Room in Florence,” “offers the guarantee that this body-altering penetration has the prestige of a healing process.” But the odor of death cannot be redeemed.

The process of “humane” killing has unlimited resources at its disposal: to benumb, paralyze, and exterminate.  We remain the only country in the so-called “civilized” world that practices execution, though nineteen states do not have an enforceable death penalty statute. When will Tennessee join them and stop “tinkering with the machinery of death,” in the words of Justice Harry Blackmun?

To view the full list of signatories to our open letter to stop executions in Tennessee, click here.

If you are a student or educator in Tennessee, and you would like to add your signature to this open letter, click here.

If you are not student or educator in Tennessee, but you would like to support the open letter, please sign this petition.

And join us for a Death Penalty Teach-In on Monday, January 27 at 5:30pm in Vanderbilt’s Alumni Hall 201!