Article

Criminology & Criminal Justice

11(2) 115–128
A dialogue on death © The Author(s) 2011
Reprints and permission: sagepub.
penalty dignity co.uk/journalsPermissions.nav
DOI: 10.1177/1748895811398457
crj.sagepub.com

Helen J. Knowles
Whitman College, USA

Abstract
The concept of ‘dignity’ has always played an important role in the opinions written by members
of the US Supreme Court in capital punishment cases. However, the justices have failed to
agree about either the type or nature of dignity involved. This article identifies and analyzes the
three main categories of dignity that have appeared in the justices’ death penalty opinions. Justice
Brennan’s concurrence in Furman v. Georgia (1972) is used to explore the abolitionist argument
that capital punishment cannot constitutionally coexist with respect for innate human dignity. By
contrast, Justice Kennedy’s majority opinion in Roper v. Simmons (2005) argues that human dignity
is not threatened by a heavily regulated death penalty. Finally, Chief Justice Roberts’s opinion in
Baze v. Rees (2008) focuses our attention on an institutionalized formulation of dignity that
emphasizes respect for the dignity of the State that employs the death penalty.
   The Supreme Court’s dialogue on death penalty dignity is ongoing. Consequently, this article’s
analysis will aid us when we seek to understand future opinions in which the justices debate the
role that the concept of ‘dignity’ can and should play ‘when the State kills’.

Keywords
capital punishment, death penalty, dignity, Eighth Amendment, US Constitution, US Supreme
Court

Introduction
The concept of ‘dignity’ is an omnipresent component of debates about capital punish-
ment. It is a ‘vague but powerful idea’ (Dworkin, 1977: 198) that influences and defines
the direction of the death penalty dialogue, in no small part because its vagueness and
power enable it to be invoked in support of myriad different views. Abolitionists,
death penalty defenders, and neutral observers; practitioners, politicians, and academics;

Corresponding author:
Helen J. Knowles, Visiting Assistant Professor of Politics, Whitman College, 345 Boyer Avenue, Walla
Walla, WA 99362, USA
Email: h.j.knowles@gmail.com
116 Criminology & Criminal Justice 11(2)

‘dignity’ is useful to all of these groups. It should therefore come as no surprise that in
the United States, where capital punishment remains a divisive and controversial subject,
it is rare for the US Supreme Court to issue a decision in a death penalty case without at
least one accompanying opinion that speaks of dignity or one of that word’s etymological
relations.
‘Dignity’ does not appear in the text of the Constitution; however, like other
concepts – such as ‘privacy’ and ‘diversity’ – it enjoys ‘non-partisan’ support because
people do not have to agree about its actual content and boundaries (Goodman, 2006:
746). Consequently, there is much truth to the argument that the concept’s meaning is
fluid and evolving, adaptable to ‘dynamic patterns of human expectation and interaction’
(Paust, 1984: 147). This fluidity is reflected in the Supreme Court’s opinions. Members
of that institution invariably feel the need to speak using the language of dignity when
they give voice to their interpretations of the ‘cruel and unusual punishments’ language
of the Eighth Amendment to the US Constitution. However, as we will see, these
interpretations frequently expose the philosophical and constitutional complexities of
both the concept and capital punishment.
The boundaries of the specific concept with which I am interested here have been
drawn so as to include ‘dignity’ and the following related words: ‘indignity’, ‘dignified’,
‘undignified’, ‘dignities’, ‘indignities’, ‘indignation’, ‘indignant’, and ‘dignifies’.1 In order
to give substance and meaning to a concept, one needs to look at the usage of related
words that suggest or imply a violation or betrayal of the original concept. For example,
when a newspaper runs an article with the headline ‘How Abu Ghraib torture victim
faces final indignity: An unmarked grave’, one might argue that it is implicitly inform-
ing its readers about its understanding of the meaning and substance of the term ‘dignity’
(Harding, 2004). Additionally, there are both negative and positive ways in which to
‘treat someone with dignity’ – negatively ‘exclud[ing] certain interrelated kinds of
attitude and actions’, positively ‘accord[ing]’ someone ‘certain kinds of consideration’,
and I wanted my analysis of the usage of the concept in capital cases to acknowledge
these differences (Gewirth, 1992: 15). Similarly, I included ‘indignant’ and ‘indignation’ –
what we might call reactionary relations of ‘dignity’ – because much of the conceptual
meaning that I sought to uncover is related to emotions and feelings.2 My analysis is also
confined to ‘standalone references’ to the concept of dignity in US Supreme Court
opinions. When a judge writes an opinion in which he or she uses the concept of ‘dignity’
to make a distinct point about his or her own arguments, this is considered a standalone
use. These differ from ‘dependent’ ones – which might include, for example, quotations
from other opinions or from secondary sources, the descriptions of the holdings of other
cases that explicitly rely on ‘dignity’ or a related word, or simply references (usually
negative ones in a separate opinion) to a judicial colleague’s invocation of the concept.
When we examine the justices’ usage of this concept, we find general agreement that
it plays a valid role in debates about the death penalty. However, at the same time there
are deep disagreements about the nature of that role. Consequently, as Michael C. Dorf
observes, there is a temptation ‘to conclude that “dignity,” is simply a weasel word used
by the Court when convenient to cover the lack of real interests at stake’. In this article I
take seriously Professor Dorf’s request that we ‘resist that temptation’ (Dorf, 2008a). In
so doing, I identify three main categories of dignity in death penalty opinions – human
Knowles 117

dignity requiring abolition of the death penalty (dignity without death); human dignity
coexisting with a heavily regulated death penalty (dignified coexistence); and state
dignity (institutionalized dignity). In the pages that follow, I use opinions from three
cases to explain these categories. Each case has been chosen because it contains an
opinion that stands as a strong statement of, and justification for one of the categories
of dignity.
Justice Brennan’s concurrence in Furman v. Georgia (1972) is used to explore the
first category of dignity – the abolitionist interpretation, which argues that capital
punishment cannot constitutionally coexist with innate human dignity. Justice Kennedy’s
majority opinion in Roper v. Simmons (2005) provides an opportunity to explore the
second category of dignity – which believes that a heavily regulated death penalty can
maintain respect for human dignity. Third, and finally, Chief Justice Roberts’s opinion in
Baze v. Rees (2008) focuses our attention on an institutionalized formulation of dignity
that emphasizes respect for the dignity of the institutional apparatuses of the State that
employs the death penalty. Analysis of these opinions will enable us to identify the most
important elements of the Supreme Court’s dialogue on death penalty dignity. This is an
ongoing dialogue; consequently, the results of this analysis will aid us when we seek to
understand future death penalty opinions in which the justices debate the role that the
concept of ‘dignity’ should play ‘when the state kills’ (Sarat, 2002).

Deontology, Consequentialism, and the

Death Penalty Dialogue
Running through all of these opinions are elements of deontology and consequentialism,
the two predominant theories of criminal punishment. However, none of the three
categories of death penalty dignity identified in this article contains opinions which make
arguments that are either exclusively deontological or exclusively consequentialist. This
is inevitable, reflecting the constitutional and philosophical complexities of the death
penalty dialogue.
At the heart of deontology lies a belief that there are certain things that are morally
right, and certain things that are morally wrong. Deontology evaluates an action’s right-
ness without regard to its consequences: ‘The goodness of the ultimate consequences
does not guarantee the rightness of the actions which produced them. The two realms are
not only distinct for the deontologist, but the right is prior to the good’ (Fried, 1978: 9). A
deontological justification for a punishment, therefore, is not determined by the societal
benefit that will accrue, but rather by the degree to which an individual has done some-
thing to deserve the punitive treatment. As such, deontology emphasizes the importance
of evaluating the culpability of the individual – because this will affect our evaluation of
the extent to which the individual deserves a punishment; it also strongly believes in
punishment that is proportional to the offense committed. In terms of the death penalty, it
is useful to keep in mind the deontological, Kantian observation that an individual who
voluntarily commits a crime exposes themselves to morally justified societal punishment
because they have voluntarily broken the social contract. As expressed by Louis P. Pojman
(2004: 56), this argument can provide the following justification for capital punishment:
118 Criminology & Criminal Justice 11(2)

Human beings have dignity as self-conscious rational agents who are able to act morally. One
could maintain that it is precisely their moral goodness or innocence that bestows dignity and a
right to life on them. Intentionally taking the life of an innocent human being is so evil that
absent mitigating circumstances, the perpetrator forfeits his own right to life. He or she deserves
to die.

Here, there is no denial that individual freedom and autonomy are the most important
values in a society. This is because these values are accorded their due respect by the
deontological requirement that the criminal justice system account for the culpability of
the offender and other mitigating factors when imposing punishment – which by its coer-
cive nature threatens this autonomy. This way, the punishment remains ‘consistent with
a proper respect for the offender as a rational and autonomous agent’ (Duff and Garland,
1994: 3).
By contrast, consequentialism views a legitimate punishment as one that is a means to
achieving the ultimate goal of enhancing societal pleasure (or happiness) by reducing
societal pain using the manner that has the fewest unpleasant effects. Consequentialist
theories generally have no need to consider the identity of the individual who does
something, because the rightness (or wrongness) of their action is not judged by their
culpability. Similarly, consequentialism does not categorize actions as right or wrong.
Rather, actions are judged by the value of their consequences. Therefore, this is a theory
that frequently categorizes punishments by evaluating their effectiveness at deterring
future crimes. A common criticism of this utilitarian approach is that it does not consider
punishment to be an actual end, but rather a means to societal improvement. This, it is
argued, provides little consideration of, or respect for the individual as a separate and
distinct moral entity. If, ‘[t]hrough the imposition of just punishment, civilized society
expresses its sense of revulsion toward those who, by violating its laws, have not only
harmed individuals but also weakened the bonds that hold communities together’, it then
becomes easy to see why consequentialist defenses of capital punishment tend to empha-
size institutional dignity (Cassell, 2004: 198). However, this is only a generalized
observation. Distributing human and institutional formulations of death penalty dignity
between deontology and consequentialism only takes us so far. At its core even the insti-
tutional invocation of dignity refers to the relationship between the ‘machinery of death’
and the condemned individual. There is no escaping the fact that a state’s failure to treat
its individual residents with dignity – and to thereby disregard the shared norms and
values that are important components of its social fabric – will hurt both the individual
and the State. As James Q. Whitman has shown, the administration of ‘harsh justice’ –
degrading treatment that violates a person’s dignity – can hurt the State in whose name
the punishment is being meted out. Degrade the people, and you degrade the State, and
vice versa (Whitman, 2003).
The concept of dignity has become a firm fixture in the Supreme Court’s Eighth
Amendment jurisprudence. The extensive expansion of the rights of individuals accused
and convicted of crimes is one of the things for which the Supreme Court became famous
during the 1960s. These advances in criminal justice, however, were not simply the cre-
ation of one set of Supreme Court justices. They also reflected the shift in philosophical
emphasis away from consequentialism. It is no coincidence that the Court’s rights
Knowles 119

revolution occurred just as the star of deontological views about penal theory began to
rise. It is also unsurprising that it was during this period that the Court began, with
increasing frequency, to address capital punishment – culminating in the decision in
Furman v. Georgia (1972), holding that under certain circumstances capital punishment
could rise to the level of violating the Eighth Amendment.

Dignity without Death

The most commonly accepted understanding of dignity is one that depicts it as an inalien-
able element of humanity, without which a person ceases to have any worth – physical,
psychological, or moral. A person is nothing without their dignity. Dignity is ‘a kind of
intrinsic worth that belongs equally to all human beings’ (Gewirth, 1992: 12). At a basic
level, any kind of punishment is morally problematic because it involves applying puni-
tive measures to certain individuals (those that have been determined to have engaged in
proscribed activities), measures which society deems immoral if applied to anyone else.
There is something about the argument that dignity is an inalienable element of humanity
that intensifies this problem. If every human being is a dignity equal – insofar as they
automatically possess dignity by virtue of being human – then surely an individual’s
dignity is threatened by differential treatment. Differential treatment that is punitive –
and, as such, is undesirable to the recipient – enhances the threat to dignity. In this
respect, there can be no greater punitive act of indignity than an execution. Alan Gewirth
(1992: 16) suggests that: ‘[h]umans have such dignity regardless of how they are treated;
certain modes of treatment may violate but not remove their dignity’. This is indeed true,
but ends when the ‘treatment’ in question is capital punishment. The concurrence that
Justice Brennan penned in Furman remains the strongest expression, in a Supreme Court
opinion, of the belief that these qualities of human dignity make the death penalty
unequivocally unconstitutional.
Furman was one of a set of six capital cases that were argued before the Court over
the course of three days in January 1972. Three months later, the California Supreme
Court became the nation’s first judicial body to issue a pronouncement that the death
penalty was unconstitutional (People v. Anderson, 1972). Eight weeks after the decision
in Anderson, the US Supreme Court announced the decision in Furman. It held that
under certain circumstances capital punishment could rise to the level of violating the
Eighth Amendment. The Court issued a brief, one-page per curiam (unsigned) opinion
that spoke for five of the justices who concluded that such a level had been reached by
the death penalty imposed upon petitioner Furman (and petitioners in two other cases
decided with Furman).
The justices were, however, deeply divided about the appropriate reasoning. Every
member of the Court wrote an opinion expressing their understanding of the relationship
between the Constitution and capital punishment. As was the case for every one of the
five concurrences written by the justices in the Furman majority, Justice Brennan’s
opinion spoke for himself alone. In terms of its approach, however, it was one of only
two of the concurrences (the other was written by Justice Thurgood Marshall) to argue
that capital punishment could never be constitutional. Brennan made it abundantly clear
120 Criminology & Criminal Justice 11(2)

that the concept of human dignity played a central role in the reasoning that he used to
reach this conclusion.
Over the course of his Supreme Court tenure (1956–1990), Justice William J.
Brennan, Jr. was the Court’s most forceful champion of an expansive understanding of
constitutionally protected human dignity. The Constitution was, to Brennan, ‘a sublime
oration on the dignity of man, a bold commitment by a people to the ideal of libertarian
dignity protected through law’. And it was ‘[t]hrough our Bill of Rights, [that] we
pledged ourselves to attain a level of human freedom and dignity that had no parallel in
history’. Consequently, he believed that, as keepers of the Constitution’s flame the
justices were responsible for ‘identify[ing]’ the occasions when government actions vio-
lated human dignity (Brennan, 1986a: 438; Goldman v. Weinberger, 1986: 523). Nowhere
was his expression of this view more obvious than in his opinions in capital cases.
Brennan used these opinions to set forth one simple argument – that dignity lies at the
heart of the ‘intrinsic worth’ of human beings, and the Constitution cannot tolerate the
death penalty because it strips individuals of this worth (Brennan, 1986b: 680). In his
concurrence in Furman, the death penalty’s affront to human dignity played an important
role, as evidenced by the opinion’s 20 standalone references to the concept. Brennan
concluded:

At bottom … the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized
and inhuman punishments. The State, even as it punishes, must treat its members with respect
for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it
does not comport with human dignity. (Furman, 1972: 270)

The problem for judges, a problem that Brennan freely acknowledged, was that
the process of translating this bold unequivocal statement into a workable formula of
constitutional interpretation could not be guided by this ‘formulation’ alone. This is
because it ‘does not of itself yield principles for assessing the constitutional validity of
particular punishments’ (Furman, 1972: 270). For this reason, Brennan undertook a
thorough analysis of the Court’s prior decisions, and the principles underpinning the
Eighth Amendment in order to arrive at a list of four principles that would facilitate this
assessment. He provided the following summary of the relationship between dignity
and these four principles:

Death is an unusually severe and degrading punishment; there is a strong probability that it is
inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no
reason to believe that it serves any penal purpose more effectively than the less severe
punishment of imprisonment. The function of these principles is to enable a court to determine
whether a punishment comports with human dignity. Death, quite simply, does not. (Furman,
1972: 305)

After a four-year nationwide moratorium on the use of the death penalty, and efforts
by the states to bring their capital punishment laws into line with the standards outlined
in Furman, the Court decided to revisit the constitutionality of death penalty statutes in
Gregg v. Georgia (1976). Justices Brennan and Marshall, who reiterated their Furman
belief that the death penalty was unconstitutional, were the only two dissenters from a
Knowles 121

judgment that reaffirmed the basic holding of the 1972 decision – that capital punishment,
properly administered, was not a violation of the Constitution.
Compared with his lengthy Furman discourse on the death penalty and dignity, Justice
Brennan’s dissent in Gregg was decidedly brief, and contained only one standalone ref-
erence to the concept of dignity. However, it served to reiterate his Furman argument that
constitutional respect for innate human dignity could not coexist with the death penalty.
The Court’s duty of interpreting the Constitution, Brennan wrote, was guided by moral
principles. When this interpretive process involved giving meaning to the ‘cruel and
unusual punishments’ clause of the Eighth Amendment, it was his belief that he and his
colleagues were judicially bound to consider a principle ‘inherent in the Clause’. Namely,

the primary moral principle that the State, even as it punishes, must treat its citizens in a manner
consistent with their intrinsic worth as human beings – a punishment must not be so severe as
to be degrading to human dignity. (Gregg, 1976: 229–230)

This was a reaffirmation of what he had said in Furman – it was his ‘judicial determina-
tion’ that there could never be constitutional comportment between human dignity and
capital punishment.

Dignified Coexistence
It has been said that ‘[t]he ghost [of] William Brennan lives in Tony Kennedy’ (Mauro,
2005: 3, quoting Edward Lazarus). In terms of Justice Anthony M. Kennedy’s commit-
ment to a death penalty jurisprudence that does not shy away from emphasizing the
concept of dignity, this is a very perceptive statement. This is a commitment that defined
Brennan’s views about capital punishment. When Brennan retired in 1990, however,
Kennedy – who had only joined the Court two years earlier – did not simply pick up
where the Court’s elder statesman left off. It took time for Kennedy to emerge as the
Court’s spokesman on the death penalty and dignity, and when he did he adopted a very
different approach. Kennedy has become the Court’s most prominent voice in favor of
protecting dignity. However, unlike Brennan, he has not concluded that such protection
can only be achieved by abolishing capital punishment. Instead, Kennedy envisions a
death penalty whose application is heavily regulated so as to protect against violations of
dignity. His opinion for the Court in Roper v. Simmons (2005) is a clear expression of this
second category of death penalty opinions that invoke dignity – opinions that believe that
the Constitution’s commitment to protecting human dignity can coexist (not always
peacefully, though) with capital punishment.
Roper provided the Court with an opportunity to revisit Stanford v. Kentucky (1989),
in which it upheld the execution of individuals who were 16 or 17 years of age when they
committed the capital crime for which they were sentenced to die. Roper arrived at the
Court in the wake of the decision in Atkins v. Virginia (2002), in which the Court held that
the death penalty could not be constitutionally applied to mentally retarded persons. As
Justice Kennedy explained at length in Roper (2005: 562–567), executing juveniles and
executing the mentally retarded raised many of the same issues – most notably, whether
a ‘national consensus’ existed to support these practices, and whether the Constitution
permitted the execution of those of lesser moral culpability.
122 Criminology & Criminal Justice 11(2)

Christopher Simmons was sentenced to die after he committed a brutal murder for
which he showed little remorse, and whose punitive consequences he bragged he would
not face because of his age. He was 17 when he killed; he was 18 when a jury concluded
that he should be killed by the State of Missouri. Roper’s attorneys pursued numerous
appellate options, in both state and federal court, but all of them failed. After the decision
in Atkins, they mounted a fresh constitutional challenge to the constitutionality of their
client’s death sentence. This time they were successful when the Missouri Supreme
Court reduced Roper’s sentence to life in prison without the possibility of parole by
­making the same links between the case and the decision in Atkins that Kennedy would
later identify in his opinion for a five-justice majority upholding the Missouri court’s
decision. In his opinion Justice Kennedy twice invoked the concept of dignity. Both ref-
erences were to human dignity, but only one of them suggested that this was a universal
and immutable characteristic of humanity that could not morally coexist with a system of
capital punishment.
This first dignity reference reads: ‘By protecting even those convicted of heinous
crimes, the Eighth Amendment reaffirms the duty of the government to respect the
dignity of all persons’ (Roper, 2005: 560). This acknowledges that human dignity is a
concept with immutable and universal qualities. Building on the principle at the heart
of the Eighth Amendment – the protection against ‘excessive sanctions’, Kennedy
recognized that criminals – ‘even those convicted of heinous crimes’ – lose neither their
constitutional rights nor their human dignity at the jailhouse gates. It is, he wrote, the
‘duty of the government to respect the dignity of all persons’, and the Eighth Amendment
stands as a guarantor of this. However, by saying that the government’s obligation
only extends to ‘respecting’ dignity, Kennedy is also suggesting that under certain
circumstances a person’s dignity can be removed by terminating their life.
In a 2003 speech at the annual meeting of the American Bar Association, Kennedy
spoke of the dignity of criminals: ‘The subject of prisons and corrections may tempt
some of you to tune out’, he said. ‘You may think, “Well, I am not a criminal lawyer.
The prison system is not my problem. I might tune in again when he gets to a different
subject”.’ This could not be further from the truth, observed Kennedy. ‘In my submission’,
he continued, ‘you have the duty to stay tuned in. The subject is the concern and
responsibility of every member of our profession and of every citizen’. Kennedy
explained to the audience that the makeup, integrity, and fairness of the prison and
sentencing systems should always concern lawyers because a convicted and imprisoned
criminal ‘is a person … part of the family of humankind’. And society can only be
‘decent and free’ if it is ‘founded in respect for the individual’ (Kennedy, 2003: 3). Roper
was an extension of this argument, emphasizing that such sentiment extended to even
those whom society had deemed worthy of the ultimate form of punishment.
It is possible to identify a clear tendency, on the part of Kennedy, to bring an opinion
to a conclusion with a paragraph that speaks from his heart about the topic at issue.
Particularly evident in cases about which he has especially passionate views, these
paragraphs rarely contain citations, and frequently use recurring phrases and themes.
Roper is an example of such an opinion, and it is in the final paragraph of his majority
opinion that we find the second dignity reference. In its entirety, the paragraph reads
as follows:
Knowles 123

Over time, from one generation to the next, the Constitution has come to earn the high respect
and even, as Madison dared to hope, the veneration of the American people. The document sets
forth, and rests upon, innovative principles original to the American experience, such as
federalism; a proven balance in political mechanisms through separation of powers; specific
guarantees for the accused in criminal cases; and broad provisions to secure individual freedom
and preserve human dignity. These doctrines and guarantees are central to the American
experience and remain essential to our present-day self-definition and national identity. Not the
least of the reasons we honor the Constitution, then, is because we know it to be our own. It
does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that
the express affirmation of certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights within our own heritage of freedom. (Roper,
2005: 578)

This paragraph came after an extensive discussion of the relevance of the views of the
international community to the American constitutional dialogue about capital punish-
ment. It is easy to exaggerate the extent to which Kennedy permits international factors
to influence his judicial decision making, and it is easy to give the false impression that
his opinions are havens for the international law references that other members of the
Court shy away from (Toobin, 2007).
However, there is no doubt that he has been one of the justices most enamored
with the subject because he is strongly committed to protecting the universal human
principles that he sees reflected in the Constitution (Knowles, 2009).
In Roper, the predominant norm that Kennedy looked to the world for input on is that
which encourages proportionality between a crime and its prescribed punishment. What,
he asked, did other nation-states say about the practice of sentencing juveniles to die?
The purpose of this inquiry was not to identify a ‘controlling’ legal rule, ‘for the task of
interpreting the Eighth Amendment remains our responsibility’ (Roper, 2005: 575).
Rather, to guide its interpretive processes the Court was using its time-honored practice
of looking beyond the country’s shores for information about whether the overwhelming
American national consensus about a particular punishment’s proportionality was shared
by the international community. Regardless of whether, as a matter of personal jurispru-
dential principle, one agrees or disagrees with Kennedy’s decision to lead the Court into
this trans-national dialogue, his defense of his international community references is not
terribly persuasive. This is because, as Kennedy admits, all that the ‘opinion of the world
community … does [is to] provide respected and significant confirmation for our conclu-
sions’ (Roper, 2005: 578). In other words, Kennedy is suggesting that reaching out to the
rest of the world provides him (and the Court) the emotional satisfaction of knowing that
in making a decision that brings the United States into line with the rest of the world it
has acknowledged that the rest of the world exists.
These references to international views are examples of ‘third-person’ judgments –
judgments influenced by (or even based upon) what others believe to be moral (as distinct
from ‘first-person’ judgments that would reflect Kennedy’s own moral views) (Moore,
2008: 53). By consulting global opinions, Kennedy is asking whether – as has been the
case in the past – the punishment at issue is something that has received overwhelming
international condemnation because of its inconsistency with the moral imperative of
proportionality. Oftentimes, those who argue in favor of abolishing capital punishment
124 Criminology & Criminal Justice 11(2)

in the US point to the way in which the Supreme Court has, over the years, placed
increasing restrictions on the death penalty’s administration and applicability. The number
of crimes for which a death sentence is constitutionally permissible, and the number of
convicted individuals who are eligible to receive this ultimate punishment, has steadily
declined as a result of the Court’s decisions. It therefore follows, so the argument goes,
that abolition lies in the country’s near future.
This was certainly Justice Brennan’s publicly stated hope. However, Justice Kennedy
views the subject from a different perspective – a regulatory rather than abolitionist
perspective. Louis Pojman (2004: 52) argues that the aforementioned reductions simply
demonstrate that: ‘[w]e have suffered a loss of confidence in the ability of our society to
carry out justice, a failure of nerve’. Roper suggests that the Court takes this concern
seriously because the decision seeks to preserve the important principle of proportionality
between crime and punishment without which justice cannot be carried out. By concur-
rently emphasizing that the decision is bringing the USA into line with the rest of the
world, Kennedy is also achieving the goal of establishing an external perception that
the country is serious about justice.

Institutionalized Dignity
Perception was also considered important when the Court decided Baze v. Rees (2008),
upholding the constitutionality of execution by lethal injection using a specific set of
three drugs: sodium thiopental (a sedative that rapidly induces unconsciousness akin to a
person being in a coma); pancuronium bromide (a paralytic drug that stops respiration);
and potassium chloride (which generates cardiac arrest). The constitutional controversy
stems from the inclusion of the second drug, pancuronium bromide. In separate cases,
both in the early 1990s, Ralph Baze and Thomas C. Dowling were convicted of murder
and placed on death row in Kentucky. They mounted a constitutional challenge to the
specific combination of drugs used in the lethal injection process. It was the second drug,
pancuronium bromide, which opened the door for the concept of dignity to enter the
Baze dialogue about whether this punishment violated the Eighth Amendment.
Pancuronium bromide is part of a class of drugs derived from curare. Rather than
anesthetizing the patient (animal or human), and causing it to temporarily lose its ability
to feel, these drugs act as paralyzing agents. Consequently, in the administration of a
lethal injection that uses the above-mentioned three drugs, the State runs the risk that
the following might occur. If the sodium thiopental fails (for whatever reason) to place
the condemned into a complete state of unconsciousness, and the pancuronium bromide
is then injected, to witnesses and prison officials the individual might well look like they
are in a tranquil and peaceful coma-like state. However, they are actually in a state of
paralysis, unable to indicate that they are enduring the agonizing and torturous sensation
that their veins are burning as the lethal potassium chloride is injected into them (Alper,
2008: 822–824, 840–844). This description might lead one to assume that the dignity
discussion in Baze centered around human dignity. However, when it raised the concept
Kentucky instead focused on institutional dignity, contending that pancuronium bromide
makes an aesthetic contribution to the execution process. This is an inherently controver-
sial contention because it provides a justification for institutional interests ‘to trump
Knowles 125

constitutional rights to such basic goods as health and the avoidance of excruciating pain’
(Dorf, 2008b).
In his opinion announcing the Supreme Court’s judgment in Baze, Chief Justice John
Roberts accepted Kentucky’s institutional use of dignity. The ‘Commonwealth’, wrote
Roberts, ‘has an interest in preserving the dignity of the procedure, especially where
convulsions or seizures could be misperceived as signs of consciousness or distress’.
Paralyzing the condemned apparently avoided ‘shocking the conscience’ of those
witnessing the execution. Roberts focused on Kentucky’s interest in maintaining ‘the
dignity of the procedure’, which he said could not be met by a protocol that consisted
of only drugs one and three (Baze, 2008: 57–58). The Chief’s reference to this type of
dignity is illuminating, because it actually finds very little explicit support in the lower
court opinions in the case, the briefs filed with the Supreme Court, or the points set forth
during oral argument by Roy Englert arguing on behalf of Kentucky.
In support of his conclusion, Roberts pointed to trial court findings from a capital
punishment case in Tennessee. Yet, nowhere in those findings is the concept of dignity
referred to. There is discussion of one of the effects of pancuronium bromide – the
prevention of muscular movements, but no reference to the dignifying impact of this
paralysis (Workman v. Bredesen, 2007: 918). The only document to make this link is the
amicus brief filed by the US Solicitor General Paul Clement on behalf of the federal
government. Clement, like Roberts, also presented a misleading interpretation of the trial
findings, but did support his dignity conclusion with a citation to a federal case in which
a Department of Corrections report identified institutional and human dignity interests
served by using pancuronium bromide (United States Amicus Brief, 2007: 30). Further
indication of the unusual nature of Roberts’s use of dignity in Baze comes from the fact
that at no point during the Supreme Court oral argument did Roy Englert say that the
institutional version was the only dignity that the Commonwealth sought to protect. To
the contrary, Englert repeatedly said that pancuronium bromide was administered to
‘bring about a more dignified death, dignified for the inmate, dignified for the witnesses’.
He rejected suggestions that institutional dignity trumped human dignity (Oral argument,
2008, 33–4, 43–4).
During oral argument (2008: 10), Roberts initiated the dignity discussion by asking
Donald Verrilli, the attorney for petitioners Baze and Dowling, whether he agreed that
‘an appropriate problem to be addressed by the execution protocol’ is the ‘likelihood of
involuntary muscle contractions’. As interpreted and described by the State, this was
considered to be partly a problem of aesthetics (Oral argument, 2008: 33, 43).3 And it
was for this reason that Verrilli was unwilling to answer in the affirmative; to which
Roberts responded that the State was concerned with ‘enhac[ing] the dignity, not only of
the procedure as a whole, but also to the condemned’ (Oral argument, 2008: 10). In
his opinion, Roberts ignored this; he misstated the State’s position when he focused on
institutional dignity at the expense of individual dignity.
In this respect, Baze raises troubling questions that add a further layer of complexity
to existing debates about the constitutional status of the death penalty in the USA. To
what extent, however, should the decision be considered a dramatic departure from the
body of capital punishment precedent? And, how will the category of dignity that Roberts
trumpeted in Baze be treated in future cases? These are two questions to which we do not
126 Criminology & Criminal Justice 11(2)

yet know the answers. However, it seems fairly certain that the concept of institutionalized
death penalty dignity will remain with us for the foreseeable future. After all, while
Roberts’s opinion in Baze represents the Court’s most forceful defense of this category of
dignity, the concept of institutionalized dignity has long been a factor in debates about the
death penalty. Consequently, while we can expect human dignity to continue to play the
most prominent role, it seems unlikely that the Baze concern with institutionalized dignity
will suddenly disappear from the Supreme Court’s dialogue on death penalty dignity.

Conclusion
It is quite clear that there is more than one theoretical approach to defending capital
punishment. The mere existence of a mixture of justifications requires moral vigilance,
on the part of all concerned, to ensure that this mixture does not create a punishment that
is administered in an arbitrary and capricious manner as governments strive to pursue
disparate goals. The inherent ‘likeability’ of the concept of dignity should suggest that
those involved in perpetuating and maintaining capital punishment would want to be
seen as administering a dignified death penalty. However, after surveying the US
Supreme Court’s use of it, we can conclude that the dignity concept is sometimes its own
worst enemy. Nobody wants to be accused of endorsing an undignified death penalty, but
given the existence and usage of multiple types and interpretations of dignity, just what
an ‘undignified death penalty’ is remains very unclear. This can pose a threat to the
legitimacy of the Court because of the perception that the justices are ‘using the concept
[of dignity] selectively to further particular substantive conceptions of justice without
forthrightly acknowledging as much’ (Dorf, 2008a).
One likely response to this conclusion is to say that dignity should be taken out of the
equation. State legislatures should continue to write death penalty statutes that ignore the
word; when called upon to defend these against constitutional challenges, attorneys
should not say that they provide for dignified death; and judges should stop employing
the concept in their opinions that do not advocate abolition. However, this amounts to
little more than semantic (and disingenuous) papering over of the irrefutable fact that
capital punishment involves stripping the condemned of the type of dignity that everyone
agrees upon – life. Second, we cannot ignore the reality that a justification by any other
name really does not sound as sweet as ‘dignity’.

Acknowledgements
This article is a revised version of papers presented at the annual meetings of the American Political
Science Association and the Midwest Political Science Association. I am grateful to Keith Bybee,
Katy Harriger, Harry Hirsch, and Isaac Unah for their excellent feedback on both the methodology
and substance of previous drafts. I would also like to thank the two anonymous reviewers who
provided exceptional, constructive criticism that helped to improve every aspect of this article.

Notes
1. Justice Brennan was frequently able to discuss the concept of dignity in both his speeches and
opinions without actually using any of these words (Wermiel, 1998). However, this article’s
analysis of different uses and meanings of the concept would encounter a methodological
Knowles 127

minefield were its boundaries to be extended to consideration of passages that contained only
the spirit of dignity (if, indeed, an objective description of that could actually be identified).
2. For example, as Susan Bandes persuasively argues, it is precisely because an individual’s
emotions play an important role in their ability to make rational decisions about both their
well-being and that of others that emotions should be allowed to affect capital jury deliberations
(Bandes, 2009).
3. In terms of aesthetic considerations, the State specifically expressed concerns about the
dignity of witnesses and inmates, but it should be noted that there is a strong likelihood that it
also sought to respect the dignity of the corrections staff. The radio documentary ‘Witness to
an Execution’ provides excellent evidence of the emotional toll of death penalty duties for
these staff members (National Public Radio, no date).

Cases cited
Atkins v. Virginia, 536 US 304 (2002).
Baze v. Rees, 128 SCt 1520 (2008).
Furman v. Georgia, 408 US 238 (1972).
Goldman v. Weinberger, 475 US 503 (1986).
Gregg v. Georgia, 428 US 153 (1976).
People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 US 958
(1972).
Roper v. Simmons, 543 US 551 (2005).
Stanford v. Kentucky, 492 US 361 (1989).
Workman v. Bredesen, 486 F.3d 896 (CA6 2007).

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Biography
Helen J. Knowles is Visiting Assistant Professor of Politics, Whitman College; B.A.
Liverpool Hope University College; PhD, Boston University. She is author of The Tie
Goes to Freedom: Justice Anthony M. Kennedy on Liberty (Rowman & Littlefield, 2009)
and numerous articles.