Category Archives: Death Penalty

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,; The Council of Europe,

[2] Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013),

[3] Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013),

[4] Id.

[5] Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.),

[6]Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014),

[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.),

[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,

The Supreme Court Deals a Blow to Criminal Defendants and Strengthens Judicial Politics by Refusing to Hear Woodward v. Alabama

The Supreme Court Deals a Blow to Criminal Defendants and Strengthens Judicial Politics by Refusing to Hear Woodward v. Alabama

Brian Padgett

On November 18, 2013, the Supreme Court declined to hear the case of Woodward v. Alabama. Such a refusal is not unprecedented – the Supreme Court receives applications to hear thousands of cases per year, and generally only approves about two hundred of them.[1] What was unusual is that two justices, Justice Sonia Sotomayor and Justice Stephen Breyer published a dissenting opinion for the denial of review.

Woodward’s appeal had to do with the use of judicial overrides in death penalty cases.[2] In death penalty cases, the guilt phase is separated from the penalty phase. In the penalty phase of the trial, the government presents arguments before a jury as to why the defendant should receive the death penalty. In legal language, the government presents aggravating circumstances to the jury. In response, the defense generally presents mitigating circumstances to the jury. The role of the jury is to weigh the mitigating and aggravating circumstances, and to make a recommendation to the judge as to whether the defendant should be placed on death row. The Alabama statute at issue, 13A-5-47(e), allows the judge to override the jury’s recommendation. In other words, the jury’s conclusion as to whether the death penalty is appropriate is not binding, and the judge can impose capital punishment if the judge finds the aggravating circumstances outweigh the mitigating circumstances. If the judge chooses to do so, they must file an “Override Report.” However, this Report does not have to include the specific reasons as to why the judge overrode the jury’s recommendation.[3]

The dissent by Justices Sotomayor and Breyer focus on whether this practice is appropriate in light of recent Supreme Court precedent. In Alleyne v. United States, the Supreme Court found that any fact that could increase the jail time of a defendant under the federal Sentencing Guidelines must be found by a jury, not a judge. If a judge alone finds such a fact, the defendant’s Eighth Amendment[4] rights have been violated. As a result, although the Supreme Court explicitly approved Alabama’s use of judicial overrides almost twenty years earlier[5], the time was right for the Supreme Court to reconsider the issue.

One reason that reviewing Alabama’s statute is important, the justices argued, is that even though other states allow for judicial overrides, Alabama judges are virtually alone in actually doing so. Since the year 2000, there have been twenty-seven judicial overrides imposing capital punishment over a jury’s recommendation.[6] Twenty-six of these overrides were in Alabama.[7]

The Justices went on to examine why Alabama was such an “outlier,” and came to the conclusion that judicial overrides were driven by local politics. In Alabama, unlike the other two states that allow for judicial overrides, criminal judges are selected by local election. The Justices cited statistical analyses that proved with some precision that the only statistically significant difference between Alabama judges, Delaware judges, and Florida judges is that Alabama judges are elected. To support their argument that judges may feel compelled to appear “tough on crime,” the Justices quoted local news stories stating that voter reaction to sentencing opinions “has some impact.”[8]

Whether one agrees with the Justices’ view that local politics have to do with the likelihood of whether an Alabama judge will override a jury’s sentencing recommendation, one thing is clear. The Supreme Court’s refusal to review Alabama’s judicial override statute means it will remain in effect, for at least several years. It is thus likely that dozens of criminal defendants, who otherwise would have received life without the possibility of parole will be sentenced to death. Not by a jury of their peers, in accordance with the Sixth and Eighth Amendments, but by a judge, who may be more concerned with scoring re-election points than examining whether a particular defendant truly deserves to be sentenced to death.


[2]According to Justice Sotomayor, three states allow such a practice: Alabama, Delaware, and Florida. Woodward v. Alabama, No. 13-5380, 2013 WL 6050109 (Nov. 18, 2013), at *1.

[3]Id. at *3.

[4]Among other things, the Eighth Amendment protects criminal defendants against cruel and unusual punishment. Alleyne found that a judge – instead of a jury – finding a fact that increased a defendant’s jail time constituted cruel and unusual punishment.

[5]Harris v. Alabama, 513 U.S. 504 (1995).

[6]Woodward, supra note 1, at *3.


[8]Id. The Justices also cited former Justice Stevens’ dissent in Harris that Alabama judges “ben[d] to political pressure when pronouncing sentence in highly publicized capital cases.” (emphasis added).

Before the Court: The Constitutionality of Life Without Parole Sentencing for Juvenile Murderers

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

That is the question that is before the U.S. Supreme Court in cases being heard concurrently, Miller v. Alabama and Jackson v. Hobbs. The Supreme Court heard oral arguments on these cases on March 20, 2012. This issue has worked its way into the Supreme Court docket as a response to questions arising from a somewhat recent thread of cases including Roper v. Simmons and Graham v. Florida.

In Roper, the court looked at the constitutionality of the death penalty as a sentence for juveniles who were under the age of 18 when their crimes were committed[1]. The Court ultimately concluded in its 2005 decision that the death penalty for teenagers under the age of 18, was indeed, unconstitutional under the Eighth and Fourteenth Amendment.[2] The court relied on “the evolving standards of decency that mark the progress of a maturing society” in order to make a judgment in regards to which punishments reach the level of “cruel and unusual.”[3] The Court also looked to the fact that a majority of the states disallowed the death penalty for juveniles as indicia (evidence) of general societal views that juveniles are “categorically less culpable than the average criminal.”[4] As an illustration of this, in Justice Kennedy’s opinion, he indicated that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[5]

Furthermore, the Court took this holding a step further in Graham. The Court, in that case, held that life sentences without parole are cruel and unusual under the Eighth Amendment in cases involving juvenile non-homicide offenders. The Supreme Court left unanswered the question of whether sentencing juveniles who committed murder to life without parole is permissible.

            The Court’s stance on this latest question could potentially affect over 2,000 prisoners who committed murder when they were under eighteen and are currently sentenced to life without parole.[6] However, 79 of these prisoners are imprisoned for crimes they committed when they were fourteen years of age or under, the ages of the defendants in Miller and Jackson.[7] Therefore, the repercussions of the Court’s decision could be felt by many more individuals if they broaden their holding to include those under eighteen years of age, or lessen its impact if the Court narrows its holding to preclude this sentence for those fourteen and younger.

            The Court will be facing a potentially difficult task in reaching a conclusion in this instance, as the Miller and Jackson cases present quite varied situations. The facts of the Miller case can be considered rather shocking. Evan Miller took part in (and arguably orchestrated) the killing of his middle-aged neighbor Cole Cannon in Alabama. Miller, fourteen at the time of the murder, and Colby Smith, his sixteen year old co-defendant, brutally beat Cannon in his trailer after attempting to rob him of approximately $300. The boys had already stolen a number of baseball cards from Cannon’s home earlier in the evening. The boys returned to Cannon’s trailer a short time after they left him to die, in order “to cover up the evidence” by setting the trailer on fire.[8] Cannon eventually died due to smoke inhalation from the fire.[9]

            On the other end of the spectrum, the Jackson case involves an arguably more sympathetic defendant. Kuntrell Jackson, also fourteen years old at the time, was charged with felony murder in the state of Arkansas.[10] Jackson did not shoot the victim, rather Jackson was with a group of boys when they robbed and shot a video store clerk with a sawed off shot-gun.[11]

            These two cases illustrate the wide variance of potential scenarios that could lead to a sentence of life without parole for a juvenile who is convicted of murder. It also raises questions about the mandatory nature of some of the states sentencing schemes. Currently, thirty-nine states allow sentences of life without parole for juveniles who commit murder.[12] Both Alabama and Arkansas, the states at issue in these cases, have mandatory requirements of sentences of life without parole for juveniles who are convicted of murder. In fact, around some 2/3 of states which permit life sentences without parole for juveniles require mandatory sentencing.[13]

            There is a good argument that mandatory sentences may also prevent the telling of the whole story involved with a case. If a person is automatically given the sentence of life without parole, it prevents the jury or the judge (whoever is carrying out sentencing) from considering relevant mitigating factors. For instance, just from reading the facts given above in the Miller case, a potential member of the jury may say to themselves it is justified that the young man was given a life sentence without the chance of parole. However, would they feel this same way if they learned that Evan Miller grew up subject to a childhood of abuse? That he was beaten by his alcoholic father? That his mother was a drug addict?[14]  That he turned to drug use and alcohol to cope with his situation at the age of eight?[15]  Even if these facts would change a jury’s mind, they do not play a significant role under the current mandatory sentence guidelines.

Some, including Miller’s defense attorney Bryan Stevenson, argue that sentences of life without parole should be done away with altogether for children under eighteen. In part, this argument hinges on the fact that America has one of the most severe systems of punishment for juveniles when compared to other countries.[16] In addition, Stevenson argues that the Court’s holding in Graham should not be limited to non-homicide cases because “[a]ll children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.”[17]

 On the other hand, a number of legal experts would argue that a constitutional ban on these sorts of sentences for juvenile offenders would not be the most effective means of achieving a just result. As a victim right’s advocate Kent Scheindegger put it, “[A]ge is something to take into consideration in sentencing, but that one factor should not trump everything else.”[18]

At the end of the day the fact that this sentence is permitted by such a majority of the states may weigh heavily on the Court’s analysis in accordance with “the evolving standards of decency” under the Eighth Amendment. As Justice Scalia indicated during oral arguments, “[T]he American people have decided that that’s the rule. They allow it. And the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?”[19]

[3] Roper, 545 at 551.

[4] Roper,

[5] Roper, 545 at 553.

[17] Oral Arguments, Miller v. Alabama, No. 10-9646,  pg 3. March 20, 2012.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

%d bloggers like this: