Monthly Archives: April 2014

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest Citizens from Video Recording Under the Qualified Immunity Doctrine

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest

Citizens from Video Recording Under the Qualified Immunity Doctrine

By: Clay Comley

             As the 1st Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1] While the range of rights protected by the First Amendment is anything but a straightforward list governed by a bright-line rule, the 1st Amendment is generally understood as protecting two classes of rights: Freedom of religion rights under the Establishment and Free Exercise clauses and freedom of speech rights under the freedom of expression clause.[2] Furthermore, the Freedom of Expression clause encompasses numerous types of citizens’ rights including freedom to express oneself without government interference and freedom to peacefully assemble.[3] However, the component of the First Amendment at issue in this paper is the freedom of press. Despite this right’s title, the Supreme Court has recognized that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information . . .” available to the public.[4] In other words, the protections afforded to the freedom of press through the First Amendment do not give members of the press or media any special rights over ordinary citizens.[5] The First Amendment allows all citizens to record matters of public interest and express themselves through dissemination of this information.[6] Because case law clearly indicates that the Freedom of Press protects ordinary citizens from gathering information “from any source by means within the law,” courts have reasoned that the filming of public officials engaged in their duties in public spaces is a protected facet of freedom of press.[7] However, because public officials deal with varying situations in their official capacities, courts have also reasoned that such officials must be allowed some immunity against claims from members of the public.[8]

As a result of countless claims against public officials acting in their official capacity, courts created the legal doctrine of Qualified Immunity to protect these individuals from personal liability.[9] Instead of sending officials out into the public with no sense of what they could be held liable for, Qualified Immunity seeks to provide these officials with the ability to reasonably anticipate when actions will open them up to personal legal liability.[10] As a result, in theory, if a public official acts in a way reasonably believed to be lawful, they are shielded from liability for that action.[11]

Under the Qualified Immunity doctrine, governmental actors performing discretionary functions are entitled to Qualified Immunity from suits as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[12] Thus, Qualified Immunity acts as a rebuttable presumption for public officials if they allege that they acted reasonably when performing the allegedly violative behavior.[13]

As aforementioned, in order to overcome the rebuttable presumption of Qualified Immunity, a plaintiff must show that a constitutional right was both violated and “clearly established” at the time of the violation.[14] While some rights such as the right to speak in a public forum and publish and distribute literature are undoubtedly established and detailed in precedent case law, whether video recording police officers’ conduct is a “clearly established” right is still strongly debated among the federal courts throughout the United States.

Since video recording technology has been made readily available to the general public, people have been recording the conduct of law enforcement officers.[15] However, just like the federal courts involved in the circuit split at issue here, there are parties that argue for both sides. Advocates of citizens’ right to record police activities often point to flagrant instances of injustice and brutality, such as the infamous Rodney King beating in 1991.[16] For example, the independent investigative LAPD team stated “. . . without the . . . videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers’ version conflicted with the account by King and his two passengers.”[17] While this instance has become the flagship for civil rights activists speaking against police brutality, it also illustrates the dangers of individuals’ testimony without concrete recorded evidence. Without the availability of 1st-hand recordings, many crimes and torts would be dismissed from our legal system and some would never even come to light.[18]

Despite this evidential concern, opposing parties argue that recording police can negatively affect how they perform their official duties.[19] For example, if an officer is recorded and subsequently reprimanded by his department or the public despite no wrongdoing being found, that officer may be deterred from effectively using force against citizens in the future.[20] Furthermore, in some circumstances, the party responsible for the recording can inhibit a police officer’s duty to work effectively. In Ortiz, while recording the police officer, the plaintiff placed his camera “as close as one foot” from the officer’s face.[21] Such drastic actions not only decrease a law enforcement officer’s privacy as an American citizen, but may debatably teeter on the edge of assault in the right circumstances.[22] As a result, 11 states still enforce some form of an Eavesdropping law or wiretapping statute against citizens who record police activities.[23] Under these laws, without the officer’s permission, he or she may not be recorded in any way. Furthermore, if unauthorized recording occurs, the recording individual may then be subject to criminal discipline.[24] Regardless of which side one takes in this debate, the recent cases comprising the circuit split indicate that there are advocates for both sides

CURRENT CIRCUIT SPLIT

Jurisdictions Holding Police Officers have Qualified Immunity

The Third and Fourth Circuits have both held that video recording police officers is not a “clearly established” right, which affords Qualified Immunity to police officers who stop citizens from recording their behavior.[25] It is important to note that although these courts afford Qualified Immunity to police officers in these circumstances, they concede that video recording police activity may be a right protected by the First Amendment. Despite this concession, citizens who have this right violated by police officers are unable to successfully obtain civil judgments against them. It is also important to note that each case from these circuits have varying facts, which as a result, may have affected the court’s opinion.

According to the Third Circuit, video recording police activities during traffic stops is not a “clearly established” right because the U.S. Supreme Court has held that traffic stops are inherently dangerous situations for police officers.[26] In Kelly, the plaintiff was a passenger in a vehicle pulled over for minor traffic violations including speeding and a “bumper height restriction.”[27] Plaintiff, a passenger in the vehicle, secretly began recording the defendant without his knowledge. When the officer realized this, he confiscated the camera and arrested the plaintiff. The police officer claimed he had probable cause to arrest the plaintiff due to Pennsylvania’s wiretap statute and his lack of consent to his activities being recorded.[28] After the lower court granted defendant’s motion for summary judgment under the Qualified Immunity doctrine, the Third Circuit reviewed the case.[29] Ultimately affirming the district court’s grant of summary judgment, the court focused on two main points: 1) the fact that there was conflicting case law throughout the country at the time of the alleged violation and 2) the inherently dangerous nature of traffic stops that requires police officers’ command of the situation.[30] As a result of these circumstances, the Third Circuit held that police officers engaged in traffic stops are to be afforded Qualified Immunity for cessation of video recording.[31]

The Fourth Circuit also determined that recording police activity was not a “clearly established” right.[32] However, unlike the Third Circuit, the Fourth Circuit ruled against a plaintiff for recording in a public space as opposed to during a traffic stop.[33] Unfortunately, the Fourth Circuit Court failed to elaborate on its precise reasoning. In its opinion, the Court simply stated, “[T]he district court concluded that Szymecki’s asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. We have thoroughly reviewed the record and the relevant legal authorities and we agree.”[34] However, the Court also added Fourth Circuit precedent that states, “if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense.”[35] Therefore, the Fourth Circuit does not use another circuit’s recognition of a “clearly established” right as evidence of its status as such. Instead, this Circuit only recognizes rights as “clearly established” if it is shown in its own courts.

Jurisdictions Holding Video Recording Police is “Clearly Established” Right

As previously stated, the First and Eleventh Circuits have held that video recording police officers’ activity is a “clearly established” right.[36] Thus, in those circuits, law enforcement officers do not possess Qualified Immunity when they prevent or cease video recordings.[37]

For example, the Eleventh Circuit has held that citizens have a “clearly established” right to video record police activities in public places.[38] The Court also stated that this right is especially established when the subject being recorded is a “matter[] of public interest,” such as a public officer’s interactions with civilians.[39] Without discussing the particular facts of the plaintiff’s claim, the Eleventh Circuit recognized this conduct as a First Amendment right “subject to reasonable time, manner and place restrictions.”[40] Although the Court affirmed the grant of defendants’ motion for summary judgment, this was due to plaintiff’s failure to show the conduct actually violated plaintiff’s rights.[41] Despite the plaintiff’s lack of evidence, the Court held that such video recording is a “clearly established” right.[42] Unfortunately, this opinion did not detail the extent of the right or what restrictions would be considered “reasonable” in the Eleventh Circuit.

But after the Eleventh Circuit’s decision in 2000, more than a decade later, the First Circuit agreed with the Eleventh Circuit and further explained the nature of this First Amendment right.[43] In Glik, the First Circuit found that the right to record police officers “fits comfortably within” the principles protected by the First Amendment.[44] In Glik, the plaintiff was walking in a well-known park in Boston called the Boston Common, when he noticed three police officers arresting a suspect.[45] After hearing another bystander exclaim that the officers were hurting the man, the plaintiff began recording the event on his cell phone.[46] After the suspect was subdued, an officer approached the plaintiff and asked if the cell phone recorded audio.[47] Replying in the affirmative, the plaintiff continued recording and was then arrested for violation of the Massachusetts wiretap statute.[48] The phone was confiscated and kept as evidence.[49] All of the criminal charges against plaintiff were dropped and he initiated this lawsuit against the officers.[50] After defendants’ motion for summary judgment as denied by the lower court, they appealed to the First Circuit claiming that defendants were protected under Qualified Immunity.[51] While defendants argued that plaintiff did not have the right to record because he was a private individual rather than a reporter, the First Circuit stated that such First Amendment rights were not limited to members of the press.[52] The Court further explained that because recording police activity “. . . not only aids in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government . . .” private citizens should be allowed to exercise such a right without police interference.[53] According to the First Circuit, because plaintiff acted peacefully, legally, and was protected by the First Amendment, defendants “lacked the authority to stop [him].”[54] The Court also appropriately noted “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.”[55] Much like the Eleventh Circuit stated in Smith, the First Circuit also conceded that reasonable limitations must occasionally be placed on such activities.[56] Despite this concession, the Court stated that the plaintiff was still protected because he acted in an obviously public area and neither “spoke to nor molested the officers” throughout his recording.[57]

Obviously, one of the most alarming issues that surround this controversy is that video recording is becoming more widely available and simplified through the use of cell phones. According to ABC News, 91% of Americans currently own a mobile phone, which most likely have video recording capabilities.[58] Furthermore, 61% of Americans use a “smart phone” with Internet, capable of posting videos online.[59] Thus, this issue simply must be settled because the amount of litigation regarding such recording is likely to only increase.

[1] U.S. CONST. amend. I.

[2] FIRST AMENDMENT, http://www.law.cornell.edu/wex/first_amendment (last visited Oct. 3, 2013).

[3] Id.

[4] First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978).

[5] First Amendment, http://www.law.cornell.edu/wex/first_amendment.

[6] Blackston v. AL, 30 F.3d 117, 120 (11th Cir. 1994).

[7] Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).

[8] Abbott v. Sangamon Cty., 705 F.3d 706, 14 (7th Cir. 2012).

[9] Id.

[10] Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008).

[11] Chelios, 520 F.3d at 691.

[12] Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982) (emphasis added).

[13] E.g., id.

[14] Id.

[15] See Andrew R. Shaw, Our Duty in Light of the Law’s Irrelevance: Police Brutality and Civilian Recordings, 20 GEO. J. POVERTY LAW & POL’Y 161 (2012).

[16] Id. at 162.

[17] Id.

[18] Id.

[19] http://www.pqed.org/2011/01/should-people-be-allowed-to-record.html.

[20] Id.

[21] Ortiz v. City of New York, 2013 U.S. Dist. LEXIS 136897 (S.D.N.Y. 2013).

[22] Id.

[23] See generally Stephanie Claiborne, Comment: Is it Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and its Application, 45 J. MARSHALL L. REV. 485.

[24] Id.

[25] See generally Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009); King v. City of Indianapolis, 2013 U.S. Dist. LEXIS 123505 (So. Ind. 2013).

[26] Kelly, 622 F.3d at 262.

[27] Id. at 252.

[28] Id.

[29] Id. at 251.

[30] Id.

[31] Id.

[32] Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009).

[33] Id.

[34] Id. at 853.

[35] Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotations omitted).

[36] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

[37] Id.

[38] Smith, 212 F.3d 1332

[39] Id. at 1333

[40] Id.

[41] Id.

[42] Id.

[43] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[44] Id. at 82.

[45] Id. at 79.

[46] Id.

[47] Id. at 80.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id. at 82.

[53] Id. at 82-83.

[54] Id. at 83.

[55] Id. at 84

[56] Id.

[57] Id. at 84

[58] Joanna Stern, More Than Half of Americans Own Smartphones, ABC NEWS http://abcnews.go.com/blogs/technology/2013/06/more-than-half-of-americans-own-smartphones/.

[59] Id.

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

By Lacy Triplett

In relevant portion, the Fourth Amendment provides people “the right…to be secure in their persons…and effects, against unreasonable searches, and no warrants shall issue, but upon probable cause…”[1] Although the Fourth Amendment states that searches of persons and their effects must be conducted pursuant to a warrant, there are certain exceptions to that rule.[2] One common exception is a search incident to arrest, which as stated in Chimel v. California permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[3] The Chimel Court rooted the search incident to arrest exception in two justifications: (1) the need to protect an officer’s safety and (2) the need to prevent the arrestee from destroying evidence.[4]

In addition to searching the arrestee’s person, any items or containers on the arrestee’s person at the time of the arrest or within the arrestee’s reaching distance may be searched incident to the arrest.[5] The exception has been used for decades to uphold the warrantless searches of a variety of objects, such as pagers, wallets, and address books.[6] Yet the law is in flux in regard to warrantless searches of cell phones. Various circuits have decided the issue with the majority of those courts holding that cell phones are permitted to be searched incident to arrest under varying Fourth Amendment jurisprudence.[7] Despite the variance among the circuit courts, the Supreme Court will soon settle the split and provide police officers with an easy and practical rule to apply in the field.

On April 29, 2014, the United States Supreme Court will hear oral arguments regarding whether the Fourth Amendment requires police officers to obtain a search warrant prior to searching an individual’s cell phone incident to his lawful arrest.[8] The Court will hear United States v Wurie and its companion case, Riley v. California, both of which involve cell phone searches with the former being a flip-phone cell phone and the latter being a smartphone.[9]

United States v. Wurie

An officer was performing routine surveillance in Boston when he noticed Wurie and another individual engaged in what the officer believed to be a drug sale in a convenience store parking lot.[10] Wurie drove off in his car, while the officer and another member of the Boston Police Department stopped the other individual and found two plastic bags of crack cocaine in his pocket.[11] The individual stated he bought the crack cocaine from Wurie and noted that Wurie lived in South Boston.[12] Wurie was later arrested for distributing crack cocaine.[13] When Wurie subsequently arrived at the police station, two cell phones were taken from him as well as a set of keys and a large sum of cash.[14] Prior to being booked, one of Wurie’s cell phones received repeated calls from a number listed as “my house.”[15] The officers then opened Wurie’s cell phone to check his call log, and as soon as the officers opened the phone they saw Wurie’s wallpaper, which was a picture of a young black woman holding a baby.[16] The officers were able to determine the phone number associated with the caller ID for “my house,” which led them to an address where Wurie’s car was parked when he was arrested.[17] The officers then took the keys they confiscated from Wurie and went to the address associated with “my house” where the officers saw a woman who resembled the photograph on Wurie’s cell phone wallpaper.[18] Once at the apartment, the officers entered and “froze” it while they obtained a search warrant.[19] Upon receipt of the warrant, the officers seized cocaine and marijuana, guns, ammunition, and cash.[20]

The United States District Court for the District of Massachusetts denied Wurie’s motion to suppress the evidence officers obtained from searching his cell phone.[21] The First Circuit held that the officers’ search of Wurie’s cell phone was a violation of the Fourth Amendment, and specifically stated “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”[22] The First Circuit continued by stating that the Supreme Court, when it decided the cases which set forth the search incident to arrest exception, “could not have envisioned a world a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of tangible data—data that is not immediately destructible and poses no threat to the arresting officers.”[23] In reversing the district court, the First Circuit stated, “warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest…without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’”[24]

Riley v. California

Riley was suspected in a gang shooting and was stopped in his vehicle by officers.[25] A subsequent search of his car revealed two handguns, which were forensically tied to the earlier shooting.[26] Riley was arrested and his cell phone was seized; his cell phone records showed that his phone was used near the shooting location around the time the shooting occurred and contained pictures of Riley making gang signs.[27] The trial court denied Riley’s motion to suppress the evidence from his vehicle search and from his cell phone search.[28]

People v. Diaz, a California Supreme Court case, controlled the Court of Appeals for the Fourth District’s ruling.[29] Diaz held that warrantless searches of cell phones were permissible because attempting to define a container as “worthy” or “unworthy” exceeded the bounds of the Fourth Amendment.[30] The California Supreme Court further stated that the storage capacity of an item was irrelevant.[31] Riley followed the precedent set forth by Diaz, and resulted in the Fourth District affirming the denial of Riley’s motion to suppress.

Possible Outcomes

Hopefully, the Court will issue a concrete ruling after it hears oral arguments on the issue of whether a search warrant is needed before officers search an arrestee’s cell phone, which will provide guidance to police officers. The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurie and find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. The Court may take other approaches and rule that officers are only permitted to seize cell phones incident to arrest and are prohibited from searching them until there is a warrant. Another approach is that officers can only search cell phones when there is reason to believe that there is evidence of the crime on the cell phone, which falls in line with the Court’s recent decision in Arizona v. Gant.[32] Whatever ruling the Court chooses to adopt will have a substantial impact on police officers and citizens alike, either by significantly restricting the types of searches that can be performed or by significantly imposing on an individual’s privacy rights.

[1] U.S. Const. amend. IV.

[2] United States v. Robinson, 414 U.S. 218, 224 (1973).

[3] 395 U.S. 752, 762–63 (1969).

[4] Id.

[5] United States v. Curtis, 635 F.3d 704, 711–12 (5th Cir. 2011).

[6] See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

[7] See Silvan W. v. Briggs, 309 F. App’x 216 (10th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); United States v. Murphy, 553 F.3d 405 (4th Cir. 2009).

[8] United States v. Wurie, SCOTUSblog, http://www.scotusblog.com/case-files/cases/united-states-v-wurie.

[9] Greg Stohr, Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg, (Jan 17, 2014) http://www.bloomberg.com/news/2014-01-17/mobile-phone-searches-by-police-get-top-u-s-court-review.html.

[10] United States v. Wurie, 728 F.3d 1,1 (1st Cir. 2013).

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Id.

[16] Wurie, 728 F.3d at 2.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Wurie, 728 F.3d at 12.

[23] Id. at 12.

[24] Id. at 13.

[25] People v. Riley, D059840, 2013 WL 475242 (Cal. App. 4th Dist. Feb. 8, 2013).

[26] Id. at *1.

[27] Id. at *2.

[28] Id.

[29] Id. at 6.

[30] People v. Diaz, 244 P.3d 501, 507 (Cal. 2011).

[31] Id. at 95.

[32] 556 U.S. 332 (2009).

New Difficulties in Executions Prompt Constitutional Questions

New Difficulties in Executions Prompt Constitutional Questions

By Alex Darby

                The death penalty is currently facing renewed scrutiny in the United States as the drugs previously used for lethal injection become increasingly difficult to obtain. States that still employ the death penalty have scrambled to find alternative methods of killing those on death row, raising new questions about the constitutionality of the death penalty.

The death penalty has become increasingly rare in most Western countries. Many of the companies that produce the drugs used in lethal injections are based in European countries that have banned the death penalty.[1] The drugs most commonly used in lethal injections were previously pentobarbital and sodium thiopental; however, upon increased public outcry that the drugs were used in executions, the companies that produced these drugs have either stopped production or sell the drugs with the strict prohibition that they cannot be used in executions.[2] For example, on learning that the drug propofol would be used for executions in Missouri, the German manufacturer of the drug requested the return of the drugs and threatened European Union sanctions. The governor postponed the execution of a man on death row for fear that the use of propofol would threaten the supply of the drug needed for hospitals.[3] The German company threatened the use of European Union sanctions and requested that the drug be returned.[4] Alabama has been forced to postpone executions because it has run out of pentobarbital, the initial drug used in the state’s executions.[5] Further, even states that may currently have a stockpile of the drugs will face a shortage when the drugs expire and are no longer usable.

To deal with the shortage of previously used drugs, states are turning to untested drugs from compound pharmacies that are “produced in small amounts on special order without strict regulatory oversight and have been linked to contamination in the past.”[6] This creates a significant issue as the manner of death that these drugs produce is not always clear. Dennis McGuire was executed by the state of Ohio using an untested combination of drugs.[7] The execution was the longest recorded execution in Ohio history, taking nearly 24 minutes.[8] McGuire spent roughly 10 minutes gasping and snorting before he finally died.[9] A properly performed lethal injection takes between 4 and 5 minutes to be completed.[10] These seemingly painful side effects and increasing secrecy around the sources for the drugs raise new Due Process and Eighth Amendment issues.

Some states, such as Oklahoma have enacted laws that keep the source of the drugs and the types of drugs used secret, even from the court itself.[11] The Alabama legislature is currently considering a law similar to the Oklahoma statute.[12] Proponents of the law argue that it is important to keep this information secret to ensure suppliers are willing to continue to provide the drugs.[13] However, an Oklahoma judge recently ruled that such secrecy is unconstitutional.[14] Proponents of the laws argue that the secrecy is required to ensure drug companies will continue to supply the needed drugs while opponents argue that without knowing what the lethal cocktail is composed of, there is no way ensure that the execution does not violate the Eighth Amendment prohibition on cruel and unusual punishment.[15] An Oklahoma judge held that, because of the potential Eighth Amendment risks, the secrecy surrounding the composition of the drugs created a Due Process issue that rendered it unconstitutional.[16]

The Eighth Amendment sets out a prohibition on cruel and unusual punishment. The Supreme Court has held varying positions on the constitutionality of the death penalty since the 1970’s. In 1972, the Court struck down Georgia’s death penalty statutes and with it similar statutes in a majority of states.[17] The Court changed course just four years later, holding that the death penalty is not per se unreasonable.[18] Under this reasoning, the resulting death is not unconstitutional, but the manner in which the punishment is carried out may be.

When the Court has recently reviewed cases involving lethal injection, the Court held that the Eighth Amendment prohibits methods that create an objectively intolerable risk of harm.[19] The risk of some pain is not sufficient, as in Baze v. Rees the court upheld the method lethal injection because they were alleged to cause severe pain only if administered improperly.[20] The issue that arises in the case of drugs from compound pharmacies is that these drugs are often untested- including the injection used in the execution of Dennis McGuire in Ohio. There is no way to know whether the resulting death will be painful or not until the inmate is lying on the table gasping. The attempt by various states to shroud the drugs used in secrecy creates an even more significant risk. There is no way for an attorney to argue that the drugs pose an Eighth Amendment violation, as there is no way to even speculate the effects a drug may have if the type of drugs to be used is untested and its source unknown.

While the difficulty procuring these drugs is causing significant difficulties for some states, it provides a new opportunity to discuss the death penalty, and whether it is still aligned with the views of the majority of the country. The Court has long tied Eighth Amendment analysis to evolving standards of decency.[21] The United States is one of the few Western countries that still use capital punishment. Further, the majority of executions in the United States occur in only a handful of states. [22] The death penalty has a long history in this country; however, the methods formerly used- such as hangings or the electric chair- would make many uncomfortable today. The idea that lethal injection is a “humane” means to end human life is now being challenged as new drugs produce accounts of deaths that seem far from painless. It is time that the US again raise its standard of decency, and prohibit this punishment altogether.

 

[1] See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf; The Council of Europe, http://hub.coe.int/what-we-do/human-rights/death-penalty.

[2] Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013), http://www.nytimes.com/2013/11/09/us/executions-stall-as-states-seek-different-drugs.html?ref=capitalpunishment&_r=0.

[3] Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013),   http://www.bbc.com/news/world-us-canada-24935868.

[4] Id.

[5] Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.), http://blog.al.com/wire/2014/03/alabama_out_of_execution_drug.html

[6]Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014), http://www.nytimes.com/2014/03/27/us/oklahoma-told-it-cant-shield-suppliers-of-execution-drugs.html?ref=capitalpunishment

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Kyle Whitmore, While Alabama Legislature Considers Execution Secrecy Bill, Oklahoma Judge Rules Similar Laws Unconstitutional, AL.Com (Mar. 26, 2014, 3:25 p.m.), http://blog.al.com/wire/2014/03/while_alabama_legislature_cons.html.

[12]  Id.

[13] See Lewis, supra note 3.

[14] Whitmore, supra note 11.

[15] Eckholm, supra note 6.

[16] Id.

[17] Furman v. Georgia, 408 U.S. 236, 240 (1972).

[18] Gregg v. Georgia, 428 U.S. 153, 179 (1976).

[19] Baze v. Rees, 553 U.S. 35, 50 (2008).

[20] Id. at 54-55.

[21] Roper v. Simmons, 543 U.S. 551, 561 (2005).

[22] See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.

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