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November 19th, 2010

Cruel and Unusual

By Nathan Tucker

This past Monday night, Michael Richard Swanson shot and killed two convenience store clerks despite the fact that they had complied with his every demand.  Swanson, a 17 year old teenager from Minnesota, had made his way to Iowa in a vehicle he stole from his mother and armed with weapons he apparently took after breaking into the family’s cabin.

Facing two first-degree murder counts, Swanson appeared smirking and laughing as he was transported from the jail to the courthouse where the judge set his bond at $1 million cash only.  When asked why he was laughing, Swanson simply replied, “Y’all are funny.”

According to authorities, Swanson told them he had intentionally killed the women so they couldn’t call 911 or later identify him.  At least one of the murders, however, was caught on video, and police found the murder weapon and the stolen cash and cigarettes on Swanson when they later arrested him at a McDonalds.

These senseless, random, and clearly intentional murders have sparked anger and frustration that the death penalty does not exist in Iowa for cases exactly like this.  Iowans have had a long and strange love-hate relationship with the death penalty.  Capital punishment was provided for both before and after statehood until Governor Cyrus Carpenter signed a bill abolishing the penalty in 1872.

Given the inability to legally impose the death penalty, lynch mobs infamously took matters into their own hands in 1874, 1875, and 1877, prompting the Iowa General Assembly to reinstate the death penalty in 1878.  Iowans again had a change of heart in 1965, when Governor Harold Hughes signed a bill that abolished capital punishment.  A total of 41 people have been executed in Iowa at both the state and federal level.

Since then, numerous attempts have been made to reinstate the death penalty.  Reinstatement bills made it out of either a legislative committee or an entire house of the Iowa General Assembly in 1970, 1975, 1976, 1993, 1995, 1997, and 1998.  Governor Terry Branstad made capital punishment a major part of his 1990 gubernatorial campaign.

Though the issue has largely been ignored during the past decade, these recent murders, with Branstad once again in the governor’s mansion, could provide the impetus to bring back the death penalty after 45 years.  If passed, however, such a law would face a dubious future as its constitutionality would be decided by an Iowa Supreme Court on which four activist judges still sit.

A majority of the U.S. Supreme Court has consistently held that the death penalty, per se, does not violate the 8th Amendment’s prohibition on cruel and unusual punishment, though the Supreme Court has held that it does so when applied to non-capital offenses, juveniles, and the mentally retarded.

The Iowa Constitution, however, contains its own guarantee against cruel and unusual punishment in Section 17 of Article I, and the Iowa Supreme Court has not hesitated in the past to interpret a provision of the state constitution differently than the U.S. Supreme Court’s interpretation of the identical provision in the federal Constitution.

Despite the fact that both the U.S. and Iowa Constitutions specifically allow for capital punishment provided that due process of the law is followed, many activist judges share the belief that, because they find the penalty morally reprehensible, it also has to be unconstitutional.

In Furman v. Georgia (1972), for instance, a majority of the U.S. Supreme Court ruled that the death penalty could violate the Cruel and Unusual Punishment Clause, though they couldn’t agree how.  Justices William Brennan and Thurgood Marshall held that the death penalty was always unconstitutional, while others simply concluded that “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

As Justice Kennedy noted in his majority opinion in Roper v. Simmons (2005), it has become settled U.S. Supreme Court practice to refer to “’the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.”  Skewing any evolving standards but their own, these activist judges have bluntly declared that “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”

Sadly, such an activist interpretation of the Cruel and Unusual Punishment Clause appears an ideal fit for an Iowa Supreme Court that recently ruled in Varnum v. Brien (2009) that the ”Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure..”

Any attempt to reinstate the death penalty, therefore, will fail until real judicial reform is established that exposes and prevents activists from assuming the bench in the first place.  Until then, all our striving is in vain.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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