Will the Supreme Court Kill The Death Penalty This Term?

Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Tune in to watch an execution?

Watching a public hanging in present-day Iran
Watching a public hanging in present-day Iran
(CNN) Arkansas's controversial plan to execute eight men in 10 days later this month has hit an unexpected stumbling block. State law requires that at least six people, "respectable citizens," witness executions to ensure that its laws and procedures are followed. But, to date, the state cannot find enough people who are willing to witness them.

So serious is this problem that the director of the Arkansas Department of Correction, Wendy Kelley, has tried to solicit volunteers. According to the Arkansas Democrat-Gazette, she made a personal plea in a speech to the Little Rock Rotary Club to take on this unusual civic role. "You seem," she said, "to be a group that does not have a felony background and are over 21 ... So if you are interested in serving in that area, in this serious role, just call my office."

This problem is itself a symptom of the troubling secrecy of what is in fact a public event. One solution to the problem is all too telling: television broadcasts of executions. I oppose the death penalty and if televised executions bring it to an end sooner than would otherwise happen, that would be great. But even if executions go on indefinitely, there's a strong argument to be made for televising them.

Whether televised or not, executions are always public by their very nature. The death of a condemned person is in no sense just his own death; it is a killing carried out in our name. The seemingly bureaucratic act of a few state officials is our deed as well. Hiding the deed does not change this fact.

Arkansas, like other states, regulates who can witness an execution. Only "respectable citizens" can serve as witnesses.

In addition, Arkansas law requires that they reside in the state, not have any felony convictions and be unrelated to the death row inmate or the victim in the case.

Other states have different regulations and protocols to determine how many witnesses there must be and who they can be. Arizona requires 12 "citizen witnesses" to be present. Others states require "a half dozen witnesses with no connection to the crime victim or perpetrator and who are not members of the media."

Tennessee includes the sheriff of the county in which the crime was committed, the condemned person's spiritual adviser, his defense counsel and the state attorney general or designee.

The tradition of having witnesses to an execution is almost as old as execution itself. In the past, however, attendance was not regulated. Anyone who wanted to see an execution could just go to the public square where it would be carried out. According to one historian, public executions, at least since the Middle Ages, were meant to accomplish two goals: "first, to shock spectators and, second, to reaffirm divine and temporal authority."

Carrying out the death penalty in public would ensure that it was done the right way and that the punishment would serve its intended purposes. In the present day, doing anything in public is nearly synonymous with doing it on television.

This may seem extreme, but consider that throughout most of American history, public executions were an integral part of our death penalty practices. They were open to all and also were major public spectacles.

It wasn't until the 19th century, however, that states began to pass laws that removed executions from the view of the general public. In 1936, Rainey Bethea became the last person to be publicly executed in the United States. Bethea, who confessed to the rape and murder of a 70-year-old woman, was hanged in Owensboro, Kentucky. The media circus that his hanging generated helped bring the end of all public executions in the United States.

Televising executions provides the needed witnesses, but more importantly, also forces us to consider the meaning and significance of the public's own instinct to turn away from the moment when the state takes a human life.

Few people are likely to find televised executions an appealing idea, and both supporters and opponents of capital punishment will object on political and ethical grounds. Supporters oppose broadcasting executions because they fear that doing so will arouse sympathy for the condemned person and lead viewers to ignore the suffering caused by the crime.

The death penalty's opponents will say that televising executions (especially those that take place by lethal injection) would give a false and misleading picture that suggests the cruelty of the death penalty is confined to the few minutes of the execution itself -- when in reality it also extends to the years of psychological suffering spent on death row.

Still others find the prospect of watching executions gruesome, and worry that televising them would create an immoral spectacle, like a legally-sanctioned snuff film.

However, the question of whether executions should be televised is more than just a question of manners and taste. It is fundamentally a question of democracy.

Arkansas's difficulty securing witnesses for its scheduled executions offers the occasion for its state legislature to consider allowing television coverage of its forthcoming, two-a-day executions.

In Arkansas and elsewhere in the United States, officials have been unwilling to bring television cameras into the death chamber. And citizens have not demanded that executions be televised. This reticence should lead us to rethink the death penalty itself and stop carrying out executions at all.

In the meantime, so long as the state continues to kill its citizens in our name, we are obliged not to turn away.

Source: CNN, Austin Sarat, April 5, 2017. Austin Sarat is associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty."

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