American Democracy in Context. Joseph A. Pika
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draw the line between forms of execution that are constitutional and others that are not?
Some thirty-five years ago, lethal injections were introduced in the United States as a more humane alternative to electrocution, the gas chamber, hanging, and use of a firing squad. In 2008, the Supreme Court considered whether lethal injections cause unnecessary pain, thereby violating the Eighth Amendment. Typically, lethal injections consist of a three-drug cocktail administered intravenously. The first drug, an anesthetic, renders the condemned unconscious; the second drug paralyzes the body; the third drug causes cardiac arrest. Medical personnel do not administer lethal injections because to do so would violate the Hippocratic Oath they have sworn to “do no harm,” and critics charge that the prison employees who typically administer these drugs are often poorly trained. If the first drug is not administered correctly, the inmate can experience excruciating pain that may not be apparent to onlookers because of the paralysis caused by the second drug. By a 7–2 vote, the Court upheld the use of lethal injections.125
As of March 2019, 30 states administer the death penalty. More than half the countries in the world have abolished the death penalty in either law or practice. It has been abolished completely in Canada, Australia, Britain, most of Europe, and parts of South America. The United States is one of only five fully developed nations to retain the death penalty (the others are Japan, Singapore, South Korea, and Taiwan). According to Amnesty International, 20 countries carried out executions in 2018, with the United States having the seventh-highest rate of confirmed executions in the world.126 (See Figure 4.4.)
Figure 4.4 Countries With the Highest Numbers of Executions, 2018
Note: Plus signs indicate that the figure calculated by Amnesty International is a minimum.
Source: “Death Penalty 2018: Dramatic Fall in Global Executions,” Amnesty International, April 10, 2019, https://www.amnesty.org/en/latest/news/2019/04/death-penalty-dramatic-fall-in-global-execution/
Since the late 1960s, a majority of Americans have consistently supported the death penalty (see Figure 4.5). Support for the death penalty reached a high of 80 percent in 1994 and declined to 56 percent in 2018.127 Only two Supreme Court justices have argued that the death penalty itself constitutes cruel and unusual punishment. However, a majority of the Court did rule in 1972 that random and arbitrary imposition of the death penalty may constitute both cruel and unusual punishment and a violation of due process.128 It also ruled in 1977 that the death penalty may be an excessive form of punishment for certain types of crimes (such as rape of an adult).129 In 2002, the Court ruled that executing mentally retarded offenders was unconstitutional.130 The Court extended that ruling in 2005 to offenders who were under the age of 18 when they committed their crime.131
Figure 4.5 The Death Penalty and Public Opinion, 1937–2018
Survey respondents were asked, “Are you in favor of the death penalty for a person convicted ot murder?”
Source: Gallup Poll (http://www.gallup.com/poll/1606/death-penalty.aspx)
Balancing National Security with Civil Liberties
Do the needs of national security justify restrictions on civil liberties? President Trump revived the debate when, in January 2017, he signed an executive order banning foreign nationals from seven predominantly Muslim countries from entering the United States. His stated purpose was to protect national security by keeping terrorists out of the United States. But given Trump’s pledge during the 2016 presidential campaign for “a total and complete shutdown of Muslims entering the United States,” some challenged the ban as a violation of religious liberty. Others challenged the ban on due process or equal protection grounds or as a violation of statutory guidelines. Although several lower courts overturned the ban, the Supreme Court ultimately upheld a revised version of the ban by a 5–4 vote in June 2018.132
Several Trump administration policies related to immigration (which the president formally declared to be a national emergency in order to build a wall along the southern border of the United States) also raise civil liberties issues. The highest profile of these was perhaps the administration’s family separation policy, which separated undocumented immigrants from their children as part of a zero-tolerance approach to deter migrants from entering the country. In yet another victory for the Trump administration, the Supreme Court voted 5–4 in March 2019 to uphold the government’s authority to detain any immigrant awaiting deportation who had ever been convicted of a criminal offense—even if the conviction occurred long ago and the individual had completed their prison term for the conviction. In a strongly worded dissent, Justice Stephen Breyer argued that the ruling—which allowed individuals who had already paid their debt to society to “be deprived of their liberty for months or years without the possibility of bail”—raised serious due process concerns.133
Achieving a balance between national security and civil liberties was also hotly debated in the aftermath of the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. As part of the “War on Terror,” both Congress and President Bush took actions to limit civil liberties. Congress passed the USA Patriot Act in October 2001 to expand the government’s power to collect phone records, monitor e-mail communications, and gather information from libraries and bookstores about what people were reading. It also contained “sneak and peek” provisions that allowed the government to seize information without informing the person involved. The government argued that such measures were necessary to combat the threat of terrorism and protect national security. In 2015, the USA Patriot Act was replaced by the USA Freedom Act, which still authorized government surveillance but with greater limits.134
Behind the scenes, President Bush secretly authorized the use of warrantless wiretaps by the National Security Agency on telephone calls between the United States and foreign countries in cases where one of the parties was suspected of links to al-Qaeda. When The New York Times revealed the program in 2005, critics charged that the Bush administration had ignored civil liberties and violated the 1978 Federal Intelligence and Surveillance Act (FISA), which allowed such wiretaps only if a special court issued a warrant for the tap either before or up to 72 hours after the start of the surveillance.135 Although President Bush suspended the particular program uncovered by The New York Times, Congress validated his authority to wiretap foreign intelligence targets without a warrant, even if they were speaking to U.S. citizens, through amendments to FISA in 2007 and 2008.
Critics also raised concerns about the Bush administration’s treatment of suspected terrorists. The administration claimed the right to detain terror suspects, including U.S. citizens, indefinitely without charge and without access to a lawyer. Several Supreme Court decisions limited the powers claimed by the Bush administration. For example, Hamdi v. Rumsfeld (2004) held that U.S. citizens, including terror suspects, have the constitutional right to consult a lawyer and to contest their detention before an independent tribunal.136
The Bush administration wanted any trials of these detainees to take place before a military commission rather than in federal court, and the president authorized the use of such military commissions by executive order. However, a 5–3 majority of the Supreme Court held in Hamdan v. Rumsfeld (2006) that military commissions were not authorized by Congress and violated international law.137 The ruling was seen as a major setback for the Bush administration, but the Republican-controlled Congress subsequently passed the Military Commissions Act of 2006 at the urging of the White House. The Act authorized the use