The Dichotomy of the Eighth Amendment and Capital Punishment


Enforcing the death penalty as punishment for a crime violates a person’s right to life and to live a life equal in dignity and rights.[1] Although this practice has not been uniformly abolished around the world, it has been prohibited in 144 countries as of 2021.[2] The Universal Declaration of Human Rights (UDHR) is part of the International Bill of Human Rights created in 1948.[3] As its name states, the UDHR is universal and not a treaty, which means that it is not “signed or ratified by states.”[4] Therefore, everyone is entitled to all the rights and freedoms in the UDHR regardless of a person’s identifiable characteristics “or other status.”[5] Article 5 of the UDHR extends its protection by prohibiting that subject individual to inhuman punishment.[6]

Furthermore, the International Covenant on Civil and Political Rights (ICCPR) released its Second Optional Protocol in December 1989 to abolish the death penalty within the international community, specifically the State Parties under the ICCPR.[7] The United States ratified the ICCPR and became a State Party in 1992.[8] Ratifying members like the U.S. are required to submit reports to the Human Rights Committee every four years.[9] These reports contain responses to a number of inquiries from the Committee, to which a country has to explain its course of action and status on human rights issues regarding which the Committee has raised concerns.[10] The U.S. submitted its most recent, fifth periodic report pursuant to the ICCPR on November 11, 2021.[11]  Implementing the death penalty goes against the principles established in the UDHR and ICCPR since it fails to promote universal protection for individuals based on their wrongs and their sentencing determination.[12]

The purpose of this paper is to analyze and contrast the death penalty as a justified punishment under the United States criminal justice system, the human rights violations under international law, and the incongruence it follows under the Eighth Amendment of the U.S. Constitution.


1. Capital Punishment Under U.S. Federal Law

Capital punishment is authorized under federal law and by 24 states.[13] This practice was brought by British settlers when they came to the New World.[14] The first recorded capital punishment was in the Jamestown colony of Virginia in 1608.[15] Death is not a blanket punishment for all crimes but rather it is implemented on a case-by-case basis in specific laws codified in the United States Code.[16] The applicable crimes result in around 42 federal laws, ranging from murder to terrorism and treason, where execution serves as a punishment option.[17] For instance, under 18 U.S.C.S. § 2119(3), if a person takes a motor vehicle that is involved in interstate commerce with the intent to cause death or serious bodily harm, and death results from such actions, a person may be sentenced to death.[18] Likewise, 18 U.S.C.S. § 2381 provides that a person who commits treason may be sentenced to death.[19]

These federal statutes are passed by the legislature, usually with the president’s approval.[20] The president does not need to approve all federal statutes.[21] On the one hand, the president may approve an additional statute to the U.S. Code that includes the death penalty as punishment.[22] However, the legislature can override the president’s opposition by achieving a two-thirds vote from Congress, which encompasses both the House of Representatives and the Senate.[23]

2. Violent Crime Control and Law Enforcement Act of 1994

Former President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (VCC) and allocated $9.7 billion for prison funding.[24] The VCC was “the most far-reaching crime bill Congress [has] ever passed.”[25] This bill is meant to reduce violent crime and to strengthen the extent of social retribution against people convicted of violent crimes.[26] The VCC authorized the death penalty for existing and new federal crimes.[27] It expanded the breadth of the death penalty to around 60 offenses.[28] The Clinton administration expected to tackle violent crimes such as violence against women, restrict the sale and possession of semi-automatic firearms, add thousands of additional police officers, and invest more money in prisons to increase their capacity.[29] In turn, incarceration rates have increased without resulting in a large crime reduction in the country.[30] Although the VCC yielded new protections for survivors of domestic violence and sexual assault, it contemporaneously exacerbated racial disparities in the criminal justice system.[31] By 1998, 74% of “defendants with death penalty recommendations from federal prosecutors were people of color.”[32]

3. Eighth Amendment of the U.S. Constitution

The Supreme Court of the United States has held that “the punishment of death does not invariably violate the Constitution.”[33] In Gregg v. Georgia, the defendant committed armed robbery and murder.[34] After the jury found him guilty, they selected death as a proper punishment during the sentencing stage of the trial.[35] The defendant challenged his death sentence as a cruel and unusual punishment in violation of the Constitution.[36] The Supreme Court held that the death penalty was not a cruel and unusual punishment because the framers of the Constitution were concerned with torture and “other ‘barbarous’ methods of punishment” as cruel and unusual punishments.[37] Under constitutional law, the issue was not whether the execution was impermissible but rather that the mode of execution did run afoul as a barbaric method leading to, for example, a lingering death.[38] The Court also considered federalism behind this issue, holding that “where the specification of punishments is concerned, […] are peculiarly questions of legislative policy.”[39] Gregg illustrates an ongoing human rights violation that is justified (1) by the historical application and interpretation of the framers and (2) by a lack of action in the judiciary under the pretense of the separation of powers.[40]


1. Conflicting Protection Against Cruel and Unusual Punishment and a Life with Dignity.

Human rights are fundamental and should be considered when drafting the penalties a person must incur for their wrongdoings.[41] Under Article 2 of the UDHR, everyone is entitled to the protections of the Declaration without distinction of a person’s “other status,” for instance, someone’s criminal conviction should not affect their universal right to life.[42] The U.S. government exempts capital punishment as cruel and unusual punishment so long as it is not a “barbarous” mode of execution.[43] All states and the federal government may use lethal injection as the method of execution.[44] However, it is important to note that the Supreme Court has not held a specific method of execution to be unconstitutional and defers it to state discretion whether it bans specific forms of capital punishment.[45] Under federal law, hanging, electrocution, gas chamber, firing squad, and lethal injection are all legal ways to end a person’s life.[46] Modern society has adopted a preferred means of execution through the use of lethal injection.[47]

The state of Kentucky allows prisoners to choose an execution by the electric chair as an option if they received his or her death sentence prior to March 31, 1998.[48] However, if prisoners fail to submit a preference at least 20 days before their scheduled execution, the default method is lethal injection.[49] The U.S. fails to consider an incarcerated person’s human rights by focusing on the potential pain inflicted during the execution process rather than the execution itself.[50] The passage of the VCC only helped normalize capital punishment by providing more leeway to the legislature to add it as an applicable punishment in over 60 offenses. We have allowed, as a democratic society, the legislature to pass laws that enable a judge, a jury, and a prosecutor to propose and decide whether a person lives or dies.[51] This practice violates a prisoner’s right to be treated with dignity.[52]

2. Intersectionality of Capital Punishment, Human Rights, and Voting.

Capital punishment is written in statutes by legislative representatives elected by the public.[53] There is a nexus between democracy and the criminal justice system, which is the rule of law ratified by these representatives to guarantee due process.[54] As of the year 2021, the Pew Research Center found out that 60% of U.S. adults generally favor the death penalty for people convicted of murder.[55] Likewise, statistics have shown a different perception of the application of the death penalty depending on a person’s race and political party affiliation.[56] People who are affiliated with the Republican party are more likely to favor capital punishment over Democrats (77% v. 46%).[57] In addition, there is overwhelming support for the death penalty by White (63%), Asian (63%), and Hispanic adults (56%), while Black adults are an almost even split (49%).[58] Most Americans justify this practice because they believe the severity of execution is a deterrent for serious crimes.[59]

However, there is an evident contrast of how Black and White people perceive the fair application of capital punishment against prisoners.[60] 85% of Black people believe that white folks are less likely to be put on death row for similar crimes.[61] White “respondents were evenly divided on the question.”[62] In 2019, the death row population consisted of 41.9% Black prisoners and 11.3% Hispanic prisoners.[63] Even though Blacks and Hispanics represent 31% of the U.S. population, they encompass over 53% of incarcerated people on death row.[64] Correlations have been found in different states attributing the likelihood of a death sentence to the victim’s race.[65] In short, a white victim may triple, if not quadruple in some states, a black defendant’s chances of being sentenced to death.[66] In Louisiana, a criminal defendant is 97% more likely to receive a death sentence if the murder victim is white than if they were black.[67] In California, “homicides involving non-Hispanic white victims are 3.7 times as likely to result in a death sentence than those with non-Hispanic African American victims.”[68]

The above statistics shed light on how the U.S. does not perceive capital punishment from a human rights perspective but rather as a serious punishment that can be potentially justified for those who commit serious crimes such as murder.[69] Nevertheless, it is still a human rights violation under international law.[70] The death penalty cannot be offered as a reliable deterrent in our criminal justice system if a convicted person’s race is factored in and weighed differently.[71] To recall, the death penalty is allowed as an option for punishment in a number of serious crimes, and the issue arises when this option is disproportionately advocated by prosecutors and allowed by the courts against non-white defendants.[72] The death penalty should not be normalized as a political topic when the issue itself is ending another human being’s life.[73

3. Disparate Treatment on the Basis of Race

Capital punishment weighs differently to prisoners’ convictions depending on their race.[74] Such an inconsistent application based on a prisoner’s race or ethnicity is inhumane treatment in violation of Article 5 of the UDHR.[75] Both the ICCPR and UDHR call for universal protections for people’s right to live.[76] The U.S. cannot loop around this practice by interpreting its constitutionality as a permissible punishment so long as it is not barbarous.[77] Neither is giving convicted individuals sentenced to death an option as to how they prefer to be executed, such as in the state of Kentucky.[78] That “choice” is inhumane treatment.[79] Incarcerated people are already limited to a life within four walls and, through capital punishment, they are being denied any life at all. Race is another factor that goes into the equation against a disproportionate number of executions.[80] Statistics show that a disproportionate number of minority convicted individuals have been sentenced to death.[81] In addition, the risk of receiving the death penalty varies depending on the victim’s race.[82]  This means the risk for non-white defendants to be executed and denied their right to life is based on their ‘other status’ as a convicted person and, most likely, on the basis of their race, which relates to two protected categories under Article 2 of the UDHR.[83]


Moral justifications do not pass muster under international human rights law.[84] Statistics show that the death penalty in the U.S. is a human rights violation rooted in people’s social acceptance of such a conviction.[85] Notwithstanding, the UDHR makes no distinction on a person’s status or any other considerations: a person is entitled to life, dignity, and freedom from inhuman treatment.[86] International human rights treaties emphasize how countries ought to provide blanket protections for people’s right to life.[87] Under the UDHR, an individual’s incarceration status does not change the extent of their rights as a human being.[88] Human rights law does not condone a legislature enabling the courts to provide a judgment that results in execution.[89] The history and tradition of the British have influenced the initial and continuing application of capital punishment.[90] In addition, the judiciary has justified the co-existence of the Eighth Amendment with the death penalty by focusing the protections against cruel and unusual punishment on the method of execution but not the execution itself.[91] Upholding the death penalty through various “non-barbarous” means is insufficient to meet the standards held by the international community.[92] Voters need to demand those legislative representatives they elect to amend the federal statutes that allow capital punishment as a possible option.[93] Such democratic procedures would prevent prosecutors from offering it as a potential sentence to prisoners, of which a disproportionate amount are people of color.[94] Doing so would follow closer to the due process of law that is owed to every person in the U.S., irrespective of their status, as they navigate the criminal justice system.[95]

[1] Universal Declaration of Human Rights, United Nations, Articles 1 & 3, (last visited Oct. 30, 2023).

[2] Death Penalty 2021: Facts and Figures, AMNESTY INTERNATIONAL, May 24, 2022, (last visited Oct. 30, 2023).

[3] United Nations, UN Human Rights Documentation, United Nations: Dag Hammarskjöld Library, Nov. 15, 2023, (last visited Nov. 28, 2023).

[4] Id.

[5] Universal Declaration of Human Rights,  United Nations, Article 2, (last visited Oct. 30, 2023).

[6] Id. at Article 5.

[7] Second Optional Protocol to the International Covenant on civil and Political Rights, aiming at the abolition of the death penalty, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, Dec. 15, 1989, (last visited Oct. 20, 2023).

[8] FAQ: The Covenant on Civil & Political Rights (ICCPR), ACLU, Jul. 11, 2013,,and%20is%20usually%20live%20streamed (last visited Oct. 30, 2023).

[9] Id.

[10] Fifth Periodic Report by the United States of America Under the International Covenant on Civil and Political Rights, U.S. DEPARTMENT OF STATE, Mar. 2014, (last visited Nov. 22, 2023).

[11] United Nations Digital Library, 2021, (last visited Nov. 22, 2023).

[12] Human Rights Law, UNITED NATIONS and the RULE OF LAW, international-law-courts-tribunals/human-rights-law/ (last visited Oct. 30, 2023).

[13] States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums, PROCON.ORG, Apr. 24, 2023, (last visited Oct. 30, 2023).

[14] History of the Death Penalty, DEATH PENALTY INFORMATION CENTER, (last visited Nov. 1, 2023).

[15] Id.

[16] Federal Laws Providing for the Death Penalty, DEATH PENALTY INFORMATION CENTER, 2023, (last visited Nov. 1, 2023).

[17] Id.

[18] 18 U.S.C.S. § 2119(3) (LexisNexis, Lexis Advance through Public Law 118-19, approved October 6, 2023).

[19] 18 U.S.C.S. § 2381 (LexisNexis, Lexis Advance through Public Law 118-19, approved October 6, 2023).

[20] Andrew Winston & Barbara Bavis & Robert Brammer, Federal Statutes: A Beginner’s Guide, LIBRARY OF CONGRESS: RESEARCH GUIDES, Mar. 30, 2023, %26%20Photographs%20Division.,Statutes%2C%20also%20known%20as%20acts%2C%20are%20laws%20passed%20by%20a,the%20approval%20of%20the%20President (last visited Nov. 1, 2023).

[21] How laws are made, USAGov, Jul. 14, 2023, %20can%20approve%20the,the%20bill%20becomes%20a%20law (last visited Nov. 1, 2023).

[22] Id.

[23] The Presidential Veto and Congressional Veto Override Process, National Archives and Records Administration,, at 1, (last visited Nov. 1, 2023).

[24] 1994 Violent Crime Control and Law Enforcement Act, U.S. DEPARTMENT OF JUSTICE, Feb. 14, 2020, (last visited Nov. 3, 2023).

[25] Lauren-Brook Eisen, The 1994 Crime Bill and Beyond: How Federal Funding Shapes the Criminal Justice System, BRENNAN CENTER FOR JUSTICE, Sept. 9, 2019, (last visited Nov. 3, 2023).

[26] Richard Rosenfeld, Overview and Reflections, Council on Criminal Justice,,on%20the%20streets%3B%20prohibited%20the (last visited Nov. 22, 2023).

[27] Id.

[28] 1994 Violent Crime Control and Law Enforcement Act, U.S. DEPARTMENT OF JUSTICE: FACT SHEET, Oct. 24, 1994,, and%20carjackings%20resulting%20in%20death (last visited Nov. 3, 2023).

[29] Rosenfeld, supra note 26.

[30] Eisen, supra note 25.

[31] Ranya Shannon, 3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color, CAP20, May 10, 2019, (last visited Nov. 21, 2023).

[32] Id.

[33] Gregg v. Georgia, 428 U.S. 153, 169, 96 S. Ct. 2909, 2923 (1976).

[34] Id. at 158.

[35] Id. at 161.

[36] Id. at 162.

[37] Id. at 170.

[38] Id.

[39] Id. at 176.

[40] Id. at 176-177.

[41] United Nations, supra note 3.

[42] Id.

[43] Gregg v. Georgia, supra note 33 at 170.

[44] Lethal Injection, DEATH PENALTY INFORMATION CENTER, (last visited Nov. 3, 2023).

[45] Methods of Execution, DEATH PENALTY INFORMATION CENTER, 2021, at 1, (last visited Nov. 22, 2023).

[46] Id.

[47] Id.

[48] Ky. Rev. Stat. § 431.220(1)(b).

[49] Id.

[50] Gregg v. Georgia, supra note 33 at 170.

[51] National Archives and Records Administration, supra note 23 at 1.

[52] United Nations supra note 1.

[53] The Legislative Branch, THE WHITE HOUSE, government/the-legislative-branch/ (last visited Nov. 3, 2023).

[54] Susanne Karstedt & Gary LaFree, Democracy, Crime, and Justice, May 2006, 605 AAPPS 1, (last visited Nov. 3, 2023).

[55] John Gramlich, 10 facts about the death penalty in the U.S., The Pew Research Center, Jul. 19, 2021, (last visited Nov. 2, 2023).

[56] Id.

[57] Id.

[58] Id.

[59] Giovanni Russonello, How Many Americans Support the Death Penalty? Depends How You Ask. The New York Times, Jun. 2, 2021, (last visited Nov. 2, 2023).

[60] Id.

[61] Id.

[62] Id.

[63] Race and the Death Penalty, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Dec. 7, 2022, (last visited Nov. 2, 2023).

[64] Id.

[65] Id.

[66] Id.

[67] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 Louisiana Law Review 647, (Nov. 2, 2023).

[68] Glenn L. Pierce & Michael L. Radelet, Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, The Empirical Analysis, 46 Santa Clara Law Review 19, (last visited Nov. 2, 2023).

[69] Russonello, supra note 59.

[70] United Nations, supra note 1.



[73] Gramlich, supra note 55.

[74] Shannon, supra note 31.

[75] United Nations, supra note 4.

[76] UNITED NATIONS and the RULE OF LAW, supra note 12.

[77] Gregg v. Georgia, supra note 33 at 170.

[78]  Ky. Rev. Stat., supra note 48.

[79] United Nations, supra note 6.

[80] Russonello, supra note 59.


[82] Id.

[83] United Nations, supra note 5.

[84] Id.

[85] Gramlich, supra note 55.

[86] United Nations, supra note 1.

[87] United Nations, supra note 5.

[88] United Nations, supra note 4.

[89] United Nations, supra note 5. See also UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER, supra note 7.


[91] Gregg v. Georgia, supra note 33 at 170.

[92] United Nations, supra note 4.

[93] Karstedt & LaFre, supra note 54 at 1.


[95] Karstedt & LaFre, supra note 54 at 1.