Examining the Constitutionality of Capital Punishment: Evolving Standards of Decency

Abstract

Capital Punishment: The Constitutionality of an Irreversible Sentence of the Death Penalty A THESIS [Instructor Name] BACHELOR OF ARTS BY [University] HAMPTON, VIRGINIA May 2019 ABSTRACT DEPARTMENT OF POLITICAL SCIENCE AND HISTORY BACHELORS OF ARTS, 2020 Capital Punishment: The Constitutionality of an Irreversible Sentence of the Death Penalty THESIS DATE: April 3, 2017 For over a century, constitutionality, the painlessness, the fairness, its historically disproportionate application to minorities, the standards of proof and other aspects of the death penalty has been a heated topic of discussion. It has inspired countless supporters and abolitionists to develop prevailing arguments and theories to support their position in the matter. The intertwining of ethical, scientific, and political components have allowed debates to continue for so long (especially as society’s standards for decency continue to evolve and change). Literature, consisting of Supreme Court Cases and other scholarly research will be reviewed in an attempt to unpack the complexities of this affair. The question this thesis will demonstrate is that given the dynamic nature of the "cruel and unusual punishment" clause, do evolving standards of decency that exist in a maturing society dictate the type of execution that is considered unconstitutional? Table of Contents Abstract…………………………………………………………………………... i Table of Contents………………………………………………………………… ii Chapter 1: Introduction…………………………………………………………… 1 Chapter 2 - Literature Review……………………………………………………. 7 Chapter 3 - Theoretical Framework…………………………………………….... 16 Chapter 4 - Research Methodology……………………………………………… 21 Chapter 5 - Results and Analysis………………………………………………….29 Chapter 6 - Summary ……………………………………………………………. 38 Chapter 7 - Conclusion…………………………………………………………... 46 Bibliography…………………………………………………………………….... 51 Chapter One: Introduction BACKGROUND TO THE PROBLEM Capital punishment is an intolerable denial of civil liberties and inconsistent with the fundamental values that define the democratic system. Through objective analysis, this thesis will prove that the death penalty is uncivilized in theory and inequitable in practice. What is generally known about the cruel and unusual punishment clause of the Eighth Amendment is that it is the most disputable piece of The Constitution when discussing the death penalty. The historical backdrop and chronology will provide a critical illustration of how cruel and unusual punishment has been defined. The preeminent hurdle for the death penalty is the cruel and unusual punishment clause in the Eighth Amendment. The clause, however, has been interpreted by the Supreme Court as having “evolving standards of decency”. In other words, the Court considers modern societal trends when determining constitutional protections. Supreme Court justices, like average citizens, are woven into society and are similarly influenced by views that form the country’s opinions. The prominent death penalty decision, Furman, was decided by the Supreme Court in 1972. At this time, the death penalty was temporarily abolished by the Court and held unconstitutional for various reasons. The Furman Court applied the "evolving standards of decency", ultimately influencing the majority opinion. The socio-political trends at the time weighed heavily in the Court’s opinion; the majority Justices became countermajoritarian heroes. The Justices in Furman realized the import of modern, societal standards and articulated countermajoritarian theory in the heart of the opinion. Furman is a perfect example of the Supreme Court's ability and inclination to champion the humanitarian aspects of modern times. In Furman, the Supreme Court officially abolished death penalty statutes in thirty-nine states as well as the federal government, a move that required unmitigated courage during the conservative law and order era. The first 175 years of the Eighth Amendment’s cruel and unusual clause was ignored by most constitutional law scholars. It was the subject of only six Supreme Court cases and became the basis of three guiding principles. The first two principles articulated in Furman were prohibitions: a punishment could not "involve torture or a lingering death," nor could it be ‘grossly disproportionate’ to the crime. The third principle called for an open interpretation of the clause. Contrast the Furman principles with the earlier decision In Weems v. United States (1910), where for the first time the Court expanded the meaning of cruel and unusual punishment. In Weems, the Court established that the death penalty was “cruel and unusual” if is a "precept of justice punishment for crime should be graduated and proportioned to the offense." The Court opined that not only could the method of execution be inherently cruel, but the punishment may be inordinate when compared to the offense. What is not known are the complexities of the clause. The clause is saturated with ambiguity and called for a universal definition. Identifying the type of discipline that constitutes “cruel and unusual" created the foundational question for scholars, and ultimately the Supreme Court, to answer. One obvious hurdle was the subjectivity of barbarity and how it is measured. Moreover, if discipline is inherently cruel, what additional criteria also define "unusual"? History provides some clarity on the history of the expression "cruel and unusual punishment." In 1689, a century before the endorsement of the United States Constitution, England promulgated a Bill of Rights that disallowed "cruel and unusual disciplines." In 1776, George Mason incorporated a preclusion of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, the same injunction turned into the focal part of the Eighth Amendment to the United States Constitution. RESEARCH QUESTIONS The research question that will be examined in this paper is as follows: Do the methods of execution and its subsequent physical impact on the human body render capital punishment a violation of the cruel and unusual punishment clause of the Eighth Amendment in the Constitution? A secondary question is as follows: Given the dynamic nature of the "cruel and unusual punishment" clause, do evolving standards of decency that exist in a maturing society dictate the type of execution that is considered unconstitutional? STATEMENT OF THE PROBLEM The death penalty is a product of a flawed criminal justice system along with the methods of execution and its impact on the human body making capital punishment a violation of the cruel and unusual punishment clause of the Eighth Amendment in the Constitution. METHODOLOGY The academic approach utilized to conduct this research will be qualitative. Qualitative methodology will allow this thesis to introduce and use both majority and dissenting opinions from previous court cases and illustrate how constitutional precedence plays a role in defining methods of execution that violate the Eighth Amendment. Written sources, books, and scholarly articles contribute to an objective analysis one how certain methods of execution are considered “cruel and unusual.” The strength of qualitative research creates the ability to use textual descriptions of experiences of a given research topic. This method is also useful to identify and discuss intangible factors as well as written reports. This is beneficial to the underlying argument that thesis will defend. Qualitative research will also include an analysis of the original definition and meaning of the term, ‘cruel and unusual punishment’ by the framers of the Eighth Amendment. Through relevant case law that extends over the last century, the circumstances that qualify as cruel and unusual punishment will be identified and discussed. Key Terms The following are terms that will be used to ensure the reader will comprehend the components of the study in the way that it will be presented: Cruel and unusual punishment –a sentence may not be disproportionate to the crime committed, regardless of whether the crime is a felony or a misdemeanor. To measure proportionality, the court must look at several factors. These factors include the severity of the offense, the harshness of the penalty, the sentences imposed on others within the same jurisdiction, and the sentences imposed on others in different jurisdictions. Public opinion- the opinions that people in society have about an issue Constitutional- connected with the constitution of a country or an organization DELIMITATIONS Because this thesis includes qualitative measuring, identification of the doctrinal landscape defining cruel and unusual punishment clauses can be subject to criticism. The constant evolution of societal mores and norms militate against countermajoritarian change. It is clear that the Furman v. Georgia opinion was deeply influenced by social and political movements. However, the backlash in Furman ultimately birthed its reversal in Gregg v. Georgia. Through Justice Brennan and Marshall’s dissenting opinion in Gregg, it became obvious that the absence of countermajoritarianism created a limiting factor that will be addressed later. . SIGNIFICANCE OF THE STUDY With the application and support of capital punishment waning, the importance for research into its effects heightens. Recent polling suggests that support for the death penalty in the United States is at an all-time low. Moreover, the number of death verdicts also decreased. In 2014, only 73 defendants were on death row and 35 were executed. This is in stark contrast with the 279 death sentences and 98 executions in 1999. In addition, since 2007, eight states have abolished the death penalty and no states have added the penalty. This study is significant because the framers of the Eighth Amendment intended the cruel and unusual punishment clause to evolve and ultimately mirror standards of decency. Public opinion insists that executions and the methods employed to accomplish, violate the Eighth Amendment. ORGANIZATION OF THE REMAINDER OF THE STUDY This thesis will be organized as follows: Chapter 2 will provide a literature review consisting of literature, including the current research that provides substantive findings. Chapter 3 will be the theoretical framework, which provides an analytical structure and academic support for this research study. The remaining chapters will detail this thesis. Chapter 2: Literature Review This chapter enumerates the literature, inclusive of articles that provide the foundational support for this argument. As established in Chapter 1, the intent of this paper is to present detailed, neutral research that supports the following: the methods of execution to terminate human life is cruel and unusual punishment and is a direct violation of the Eighth Amendment to the United States Constitution. This chapter will illustrate and explain the inhumane, barbarous aftereffect of execution methods both historically and currently employed. This chapter also highlights the deleterious effects of execution on the human body and even the most modern forms of execution meet the legal standard for cruel and unusual punishment. Finally, this chapter engages a robust analysis of Supreme Court decisions that defined cruel and unusual punishment. A review of literature and court cases will support this argument. This research outlines how the constitutionality of the death penalty has been heavily debated on a national level. Critics of capital punishment argued for a moratorium on the death penalty while proponents argued for its reinstatement. The philosophical and legal debates over the death penalty are described by C.S Lanier in his article “Capital punishment, the moratorium movement, and empirical questions: Looking beyond innocence, race, and bad lawyering in death penalty cases.” Lanier reflects on the staggered consistency of the death penalty’s existence. Since the 1960s, government officials have been busy rewriting the capital punishment laws to ensure effectiveness. This article succinctly illustrates a cogent argument for a moratorium against the death penalty as well as analyzes the executive and legislative responses to the call for a cease and desist on the practice of executions. Lanier explained that the formalized ban became official after the publication of Furman v. Georgia. In addition, the individual Justices in the Court’s 5-4 per curium opined that the death penalty was “selectively applied” to the poor and disenfranchaised. Lanier examines these issues and ponders a fundamental inquiry: whether the death penalty is an effective, remedial function or whether the finality of the punishment is so severe that it outweighs public demand for accountability. The article identifies a variety of controversial issues and also provides a full review of current policy considerations related to capital punishment. The information in the article lays the groundwork for an interesting legal, social, and philosophical assessment of the death penalty in America. The year 1972 unleashed the landmark decision in Furman v. Georgia. The United States Supreme Court overturned the legality of the death penalty. Corinna Laine carefully detailed the fundamental cause and effect of the death penalty moratorium in her article entitled: “Furman Fundamentals.” Laine explains the legal analysis in Furman that was outlined by the majority Justices and how they included a humanistic element, the wellbeing of the defendant was suddenly a critical factor in death sentences. In the early 1970’s, both the composition and disposition of the Supreme Court move into a legally progressive position. The Court’s opinions swung in favor of prioritizing the human rights of defendants over public policy concerns. Barret pondered the question of the Court’s alacrity, not quite able to determine whether the expansion of civil rights and protection of innocent defendants was the dispositive trigger. Barret opines on America’s past transgressions; specifically, on a racially and socially charged criminal justice system did not dispense punishments equally or fairly. Furman v. Georgia discredited and ultimately delegitimatized the death penalty, debunking the notion that criminals were not deserving of humane treatment. For the first time, the Court exposed its commitment to protect and defend the constitutional civil rights of capital defendants. Contrary to public opinion, the Court curried its strength amid the rampant unpopularity of their decision. The social and political atmosphere in the early 1970’s was charging toward a progressive social agenda. Public ideologies slowly shifted from strict conservatism to open liberalism. Examined later will be the Court’s reticence prior to Furman v. Georgia and Gregg v. Georgia, to protect the rights of minority criminal defendants. Prior to the landmark Furman case, the Supreme Court’s inclination to protect low income or minorities was challenged at best. However, the influence of shifting public opinion that began to demand racial equality, the Court landed in a tenuous position. Time was of the essence for the Court to ensure that the laws of the land were fully and faithfully protected; that all defendants were represented and treated equally in the hollowed eyes of the U.S. Constitution. In 1972, there were 650 condemned prisoners on death row waiting anxiously for the Supreme Court’s decision on the legality of the death penalty. Prior to Furman, minor offenses such as robbery qualified for a death sentence. However, the Furman decision precipitated the U.S. Supreme Court to impose an official moratorium on all executions. Following Furman, Gregg v. Georgia held that the uniqueness of the death penalty required the Furman Court to hold that capital punishment could not be imposed under sentencing procedures. The dissenting opinions in Gregg v. Georgia concurred that the death penalty was “freakish,” “arbitrary,” and “capricious” and was a clear violation of the Eighth Amendment. In 1976, despite the heavy influence of the dissenting Justices, Gregg v. Georgia lifted the moratorium of the death penalty, reversing Furman. Prior to Gregg v. Georgia, the Court was never influenced on the issue of the legality of sentences on the basis of popularity. The Court introduced the phrase “evolving standards of decency,” only to validate the notion of a living constitution, not to emphasize majoritarian-based protection. The death penalty’s compliance with “evolving standards” did not confront nor solve the arbitrary nature of capital sentencing that Furman Court found unconstitutional. Chapter 1 briefly introduced dissenting opinions of Justices Brennan and Marshall and there will be further expansion and analysis. In A Wild Justice, Professor Evan Mandery, a former capital punishment defense attorney, and current professor at John Jay College of Criminal Justice vividly illustrates “the death and resurrection of capital punishment.” Mandery, a self-described death penalty critic, maintains an untamed passion for the rights of capital defendants. The roles analyzed in his book are that of the Supreme Court justices and attorneys involved in landmark cases such as Furman v. Georgia and Gregg v. Georgia. Mandery described how a small group of lawyers started a practice defending capital cases and found success. He also dissects the public attitude and approach towards capital punishment with most minorities weighing heavily against it. A broader, analytical approach to the Supreme Court’s decision on the death penalty requires modeling the decisions of U.S Supreme Court Justices. Stuart Nagel analyzes and explains the basis and motives of Supreme Court decisions on the death penalty. In his book, Modeling the Criminal Justice System, readers are educated about the internal coalition formed within the Supreme Court. Nagel argues that Supreme Court Justices jockey for leverage in majority opinions. This phenomenon begs the question whether the justice system can be optimized by weighing in on the level of crime and whether any crime should be punishable by death. This relates to the constitutionality of the death penalty simply because it is a violation of the Eighth Amendment. In order to illustrate this argument, this literature will briefly touch on one method of execution that is used today. More specifically, the excruciating and inhuman contents of the lethal injection cocktail. The first thing to point out is there is no evidence that suggests death penalty via lethal injection is a deterrent of crime. However, the lethal injection displays the illusion that it is a painless sedative that puts the criminal into a deep slumber. In “Lethal Injection”, by Deborah W. Denno sheds light on how extensively misinformed the public is about the barbaric process of the lethal injection. During a lethal injection procedure, a detainee is bound to a gurney, a cushioned stretcher ordinarily utilized medical clinic patients. Until late into the 21st century, the average lethal injection consisted of three synthetic concoctions infused into a practical piece of the prisoner’s body (typically the arm) in the accompanying request. The first is sodium thiopental, a barbiturate sedative, which should induce a deep sleep within 20 seconds. The second ingredient is pancuronium bromide, an all-out muscle relaxant that, given in adequate doses, paralyzes every muscle, along these lines causing suffocation. The last (known) ingredient is simply potassium chloride, which initiates heart failure. On the off chance that all goes smoothly, the whole execution takes around five minutes, with death as a rule happening under two minutes after the last infusion. Be that as it may, messed up lethal injections have at times required over two hours to accomplish passing. In 2009 the planned execution of Romell Floor in Ohio was stopped before any medications had been infused; after consistent examining with hypodermic needles, administrators were not able locate a usable vein. It was the first deadly infusion—and just the second execution—in the US to have been stopped in advancement. An investigation of state lethal injection conventions demonstrated that such disappointments can be connected to faint lethal injection resolutions, clueless jail faculty, and executioners (who are not adequately prepared, on the grounds that doctors are prohibited from involvement in administering executions), and wrong bearings that uncover mistakes and obliviousness about the procedure. It is a violation of ethical codes for a doctor to administer the lethal cocktail. In two separate cases in 2004 and 2006, the U.S. The Supreme Court ruled on the legality of certain procedural parts of deadly infusion under the U.S. Constitution's Eighth Amendment’s clause on cruel and unusual punishment. In light of mounting analysis of the three-tranquilize mix by lower courts, in 2007 the Supreme Court consented to choose whether Kentucky's organization of its specific ingredients abused the Eighth Amendment. In a 7–2 majority administering (Baze v. Rees [2008]), the court maintained the defendability of the convention, confirming that it didn't represent a "substantial" or "objectively intolerable" danger of "serious" to prisoners. The court likewise reasoned that an alternative technique for execution, consisting exclusively of an enormous portion of sodium thiopental, was not approved. Paul A. Winter’s ​The Death Penalty: Opposing Viewpoints, contains a collection of opposing viewpoints of the humanness of capital punishment. One of the aspects mentioned was the lethal injection. The viewpoint that “executions are inhumane” include the ideology that there should be a desire to not cause pain to the prisoner while executing him. For the sake of decency and concern, the lethal injection has gained ground because it draws the iconography of tenderness and efficiency. Ronald Reagan was responsible for likening the lethal injection by illustrating analogy towards tranquilizing a horse. When in reality one in four cases come with difficulty in locating a vein for the catheter to insert the paralytic agent into the prisoner's body. When probing fails, it can become a blood procedure. If the catheter misses the vein it can possibly penetrate subcutaneous tissue causing the prisoner to wake up while they are suffocating. Also, it is extremely difficult for administrators to determine the correct dose for prisoners who have had histories of drug or alcohol abuse. The Death Penalty: A World- Wide Perspective, written by Roger Hood, introduces other forms of capital punishment to evaluate the degree of justice they serve. Although each method of execution varies in torture, the prisoner will regardless be in considerable distress. As he dives into the history of the electric chair, he inserts a comment made by the majority of the Canadian Supreme court. It stated that “As far as the method of electrocution is concerned, there is a certain horror involved in any execution and it is far from clear that there are more humane methods.” Although it has been stated that there are ‘more humane methods’ what needs to be taken from this is that there aren’t as of now. And the methods of execution that are being administered currently are causing pain to prisoners on death row. John Laurence’s book entitled The History of Capital Punishment illustrates the movement to abolish the death penalty and its history. He states clearly in the preface that the sole reason this debate cannot be settled is because there is no way to determine the results of punishment. This is subjected, but not limited to, the fact that there has been no agreement on the objects of punishment. Even if all the answers could be proven, they are not settled by reason, but by prejudices and/or by emotion. To reach a substantive conclusion, there has to be impartiality. If the engine of this debate is fueled by emotion and prejudice, it will go nowhere. The emotional and unemotional people casted as opposing players in this long-standing dispute. Laurence finds it ironic that advocates of capital punishment are ashamed by the practice by which they are responsible. Advocating for executions to not be displayed to the public and it being done privately ultimately reveals the guilt one has for participating. He emphasizes that taking away any reliable figures, interpreting those figures, and obtaining those figures, will always possess two recurring themes: the emotional vs. the unemotional, the stolid vs. the sentimental, and the sympathetic vs. the unsympathetic. Everyone who is for capital punishment is a lover of killing. And as it claims to be a deterrent for killing, and logically, the death rate of a state increases under capital punishment. The final piece of literature entitled Don’t Kill in Our Names by Rachel King acknowleges the families of murder victims who speak out against the death penalty. It also describes the development about the Murder Victim’s Families for Reconciliation (MVFR) nationwide group. This book relays the experiences of the members who are often treated like saints or maniacs. However, they identify as healing people who believe that the death penalty is nothing short of social violence that inflicts cruel and unusual punishment to prisoners. The takeaway from their stories is that the death penalty is not a solution to the problem of violence In addition, it does not act as a deterrence to killings in our society. This leads us back to the central question as to why participate in something cruel and unusual when it does not form a solid solution to any party. In all, rejection of the death penalty is synonymous to the rejection of retribution and revenge for the illusion of power and peace. Chapter 3 will be the theoretical framework which will give structure that supports the theory of this research study. Chapter 3: Theoretical Framework The theoretical framework in this chapter will defend the argument outlined in Chapter 1. The Legal Realism theory supports the arguments presented in Chapter 1. The theory alleges that significant flaws were made during judicial decision including, but not limited to, the issue of capital punishment. Legal realism argues that judges should predetermine the outcome of the matter at hand prior to issuing a final decision and opinion. In other words, “a judge reviews the facts presented and decides how he or she will rule without first analyzing precedent and statutory law.” Realists claim that the obligation for a judge to remain impartial is tainted when they have tendencies to follow their own predispositions when making a legal conclusion. Indicative of this theory are the decisions made pursuant to death penalty cases. Legal realism is a reactionary theory rooted in the flaws made in earlier judicial decision making, focusing specifically on the process of judicial review. Prominent legal realist jurists include Oliver Wendell Holmes, Joseph Bingham, Jerome Frank, Eugene Ehrlich, and Karl Llewellyn. Focusing on legal opinions in death penalty cases, Chapter 1 specifically states that delimitations of this research include the difficulty of a counter-majoritarism judicial approach and questions whether appropriate judicial review exists in death penalty cases. Legal realism is linked to countermajoritarianism because it identifies the issue when judicial review is illegitimate. Countermajoritarianism is associated with both legitimacy and democracy, making it irreconcilable with traditional judicial review. Counter-majoritarian can also be considered difficult for any constitution to constrain the majority will. A deeper analysis of legal realism is best explained by its leading theorist, Jerome Frank. Frank argues that judge’s decisions are not based on a systematic analysis of fact and law, but rather a term coined as the "judicial hunch." The legal realism theory embraces a diverse school of thought. Any attempt to normalize legal realism beyond its plain meaning only distorts it. The analysis of judicial decision-making requires proscribed legal realists to adopt two general conclusions. The first conclusion is the assertion that judges harbor unconscious and pre-existing desires to influence the outcome of a case. Disregarding legal rules, a realists’ preferred outcome is not based on a steady foundation of legal precedence but instead on non-legal grounds. Non legal grounds can include factors such as attributes of government, low income plaintiffs, racial demographics, religious ideology, public policy preferences, judge’s personality, and so on. The second conclusion is an attempt by judges to justify their conclusion on relevant legal rules in order to rationalize that their preferred outcome is rooted in sound legal analysis. Realist judges are successful since the complexities and contradictions in the legal system are profound. Legal realism is relevant to this thesis and amplified in the opinions of the Justices in Furman v. Georgia. Justices Stewart, White, and Douglas concurred on the conclusion that blatant arbitrariness existed in death sentence legislation. Historical data confirmed that judges made decisions based on their own racial bias against minority defendants. However, legal realism is not unique to race or class. The influence of personal biases and prejudices cannot be ignored when determining whether a judicial opinion is rooted in established precedence and legally sound. Public policy demands that judicial opinions, especially those of Supreme Court Justices, contain appropriate support in common law. This point was accurately expressed in the opinions of the Furman Justices. Furman was a prime example of objective decision making. The majority opinion’s decision to compare and contrast the ‘cruel and unusual punishment clause against “the evolving standards of decency” was the result of both sound and accurate legal analysis. Justices Brennan and Marshall were highlighted in the previous chapter because they championed the introduction of social mores into the laws that govern modern society. The opinions of Justices Douglas, White, and Stewart showcased their restriction by narrowing the issue in Furman to avoid dissecting the broader issue of the constitutionality of the death penalty. Instead, the Justices narrowed their opinion to the death penalty as it was applied in the three specific cases presented. Although Justice Douglas admitted the difficulty in declaring capital punishment "cruel", he read the history of the cruel and unusual punishment clause to understand the import of the equal protection clause and its potential role in the analysis. The Equal Protection Clause is critical to the constitutionality of the death penalty since the apparent selective application of death sentences was disproportionate applied to minority defendants. The Justices in Furman recognized that the outcomes in previous death penalty decisions were fueled with emotion and not sound legal theory. Legal realism calls attention to these flaws. Another concept discussed in this framework is the Attitudinal Model Theory. Attitudinal Model Theory argues that judges serve more like policymakers and make decisions based on their personal policy preferences. This theory is specifically focused on the decisions of Supreme Court Justices. Attitudinal model contrasts with the Rational Choice Theory, which argues that judges, including Supreme Court Justices, submit to their own institutional environment, thus making strategic decisions in cases. The Attitudinal model has different characteristics than Legal Realism Theory. It is relevant to the death penalty since it recognizes that nondoctrinal sociopolitical forces tilt the Court’s death penalty decision-making in a majoritarian direction. It is clear that Supreme Court Justices tend to base their decisions on their policy preferences, then combine a theory of the law to support their preference. According to the Attitudinal Model, Supreme Court decisions are merely a product of Justices pursuing their own ideologies, simply put, their personal definition of right and wrong. The Attitudinal theory argues that ‘attitudes’ and personal judgment rise above precedence to create new law, based on a desired outcome. The Attitudinal Model is the best predictor of the outcome of a case. Harold J. Sapeth and Jeffrey A. Segal are the framers of the Attitudinal Model Theory. Their theory concludes that the ability of Supreme Court Justices to vote their personal policy preferences comes in three ways: first, the Justices enjoy judicial independence. Second, Supreme Court Justices are the highest escalation in the judicial hierarchy; the hierarchy of their position allows them the freedom and flexibility to decide cases without fear of appeal. Finally, Justices interpret text, inherently indeterminate. This is due to the broad terms of constitutional language, making questions presented to the Court never “easy.” In all, the attitudes of a judge are molded by his or her life experience and condition. By deciding the values of a given judge and his or her inclinations, his or her decisions on specific matters can be foreseen by the model. Chapter 4 will expand on the adoption of the foregoing arguments as the cruel and unusual punishment clause is further examined. Chapter 4: Research Methodology The purpose of this chapter is to explain the strategies and processes applied to this research. Analyzing evidence used for these techniques will be examined to reinforce the fundamental argument that the death penalty is a violation of the cruel and unusual punishment clause of the Eighth Amendment to the Constitution. Research Design A qualitative research methodology will be utilized in this study. Researching this thesis will include court cases that underscore how the cruel and unusual punishment clause was overlooked and diminished as it relates to the death penalty. More specifically, this chapter will outline how case law and legal precedent played an essential role in establishing how the cruel and unusual punishment clause was defined over the years of appeals snaked through our judicial systems. This chapter uses qualitative research documents as source material. Qualitative research is ‘watching people in their own territory and interacting with them in their own language, on their own terms’. As identified with sociology, cultural anthropology, and political science, among other disciplines, qualitative research has been seen to be ‘naturalistic,’ ‘ethnographic,’ and participatory.” The qualitative research methodology is based on non-numerical data derived from probability information. This information is derived from opinions, polls, and personal beliefs. Specific hypotheses can be drawn from this information. Also, this kind of research can be used when there is a clearly defined question or problem to be answered. Qualitative methods are also helpful in answering questions about experience, meaning and most importantly, perspective. This type of data is usually not amenable to counting or measuring numerical evidence. Research Methodology Qualitative methodology helps to understand how a group of individuals do something, whether they attach to their own actions or the meaning they attach to other people’s actions. Having an understanding of how individuals do something provides answers about why certain opinions in court cases are in favor of or against the cruelty of the death penalty. Max Weber referred to this as verstehen. Many qualitative methods refer back to this comprehension of social research. The goal of this research is to gain an understanding of other people's mindset and the meaning they place on certain things. The objective of qualitative research is to not impose one’s personal views on another but to describe someone else's views in an attempt to understand evidence. In design terms, qualitative research unfolds - it creates as the analyst finds out additional information. at that point permitted to run along a fixed course. Rather, the examination might be altered to meet evolving circumstances. This shows that the research design needs to be fluid. Variables Before addressing research that supports the proposition that the death penalty is a violation of the cruel and unusual punishment clause in the Eighth Amendment to the Constitution, inclusion of variables that lead to the sentencing of death should be examined. The evolving standards of decency is a variable that plays a major role in qualitative analysis for the constitutionality of the death penalty. This component involves sub-variables that require this research to illustrate the Court’s navigation around these standards prior to making a ruling. Two seminal decisions that were critical to modern death penalty jurisprudence were Gregg and Furman. Chapters 1 and 2 previously discussed the distinguishing factors in the Gregg and Furman decisions. One sub variable of evolving standards of decency is the introduction of mitigation circumstances and their introduction to the jury. Mitigating circumstances can have powerful effects on whether a person is sentenced to death. However, no mitigation was presented to jurors who sentenced the Weems and Furman defendants to death. Mitigation, however, no mitigation was presented to the jurors who sentenced the defendants to death. Mitigating factors are another variable that carry value in the Evolving Standards of Decency. It can be concluded that the justices found the absence of mitigation considering that there was no acknowledgement of it in their opinions. This was particularly forceful in Gregg because “mitigation” was categorized as an identifying factor of whether or not a death penalty decision be deemed constitutional. McKleskey v. Kemp, another death penalty case, was not as evaluated to the same level as the Gregg and Furman. However, efforts to consider mitigating factors in McKleskey is notable because the Court refused the defendant's challenge assertion when emphasizing the “unceasing efforts.” In other words considering any relevant information necessary when making a decision. This research draws attention to the flaws in previous death penalty cases. Moreover, in addition to the introduction of the evolving standards of decency, considerable progress has been made over the last several decades that advanced the legitimacy of mitigation as an substantial and necessary factor in death penalty cases. Researchers and scholars document how determinants of people's actions and their past social history coupled with their immediate circumstances serve as their definition of cruelty and punishment. What will be discussed in the study sample is the role of social capital as it relates to public opinion as a determinant of support or opposition of the death penalty. Study Sample Evolving Standards of Decency includes sizable consideration for public opinion qualitative analysis. Supreme Court Justice Warren burger applied the use of public opinion polls to conclude that state legislatures made deicisions regarding the death penalty that corresponded with community standards. It is essential to acquire a more noteworthy comprehension of the different factors that lead people in general to support or oppose capital punishment. Thus, qualitative analysis inspects the effect that social capital has on different groups of people toward capital punishment. As indicated by Bourdieu (1985), social capital is an amassing of resources, actual or potential, associated with a system of institutionalized affiliations. includes that it is the information, norms, and obligation created by groups of people in specific associations that permits them to have shared objectives. Scholars have focused in on some prominent patterns on public opinion on the death penalty. Mostly, scholars have focused on how demographics play a role in the characteristics, personality, and environment. Research has also supported that Supreme Court justices are much more likely to implement capital punishment (or unlikely to dissent from a prodeath majority) when they encounter “competitive electoral conditions”. Several studies have indicated that public opinion has made an impact on capital punishment statues. In essence, the administration of the death penalty has offered some form of direct democracy. Jurists who are citizens often have a large influence in deciding the fate of a defendant’s life. They are projecting their own beliefs into public policy. This study sample will consist of how different factors shape the support or opposition of the death penalty. Attitudes toward the death penalty are both reactive and valuable, it is important to know what shapes these attitudes. Gaining an understanding of the circumstances under which attitudes change. In being able to study a sample, a comparison of whites and African Americans to these arguments would give a better idea. Although this argument is not unique race, the death penalty has become a racialized policy in the United States, supporting that the death penalty’s deficiencies. It is necessary to analyze this condition. It is evident that whites and African americans believe differently about capital punishment, their responses in arguments differ as well. Death rows are populated with African Americans in numbers far in overabundance in proportion in the broader population. While these numbers don't directly demonstrate the framework to be racially biased, they do prompt the idea of a discriminatory system, especially those inside the African American community. Further, there is at this point a virtual accord that black people indicted for killing whites are definitely bound to confront capital punishment than those sentenced for killing minorities. Furthermore, a subtle bias presents itself through discriminatory practices, for example, the act of "jury bleaching," whereby head prosecutors excuse African Americans from jury pools in capital cases for reasons other than cause. The unfair idea of the death penalty, as it were, is in excess of a unimportant recognition. It is a reality. Besides, there is impressive proof that capital punishment has become racialized in the psyches of the mass public. Whites in the United States frequently conflate issues of race and wrongdoing, drawing on their racial generalizations of African Americans when considering sentencing. All the more explicitly saw racial prejudice as among the most significant predictors of whites' perspectives toward capital punishment. Furthermore, not out of the blue, to numerous African Americans capital punishment is likewise observed as a profoundly racialized type of sentence. Roughly 600 white and 600 black respondents from the National Race and Crime Survey were asked questions. Installed in the NRCS was a survey explore in which respondents are haphazardly allotted to one of three contention conditions: in the baseline (no contention) condition, people were basically approached about their help for the discipline "for people sentenced for murder" on a 4-point scale extending from "strongly oppose" to "strongly favor." In the racial condition, they were posed the same question, yet simply after introduction to a contention expressing that the punishment, as per sources, is unjustifiable on the grounds that "most of the people who are executed are African Americans." And in the honest condition, the same question followed the contention that the "penalty is unfair because way too many innocent people are being executed" Consistent with various studies, we anticipate that whites will support capital punishment more than African...