The Eighth Amendment and the Death Penalty

If the people are protected against cruel and unusual punishments, where does the death penalty come in?

Eighth Amendment

Photo by: World Coalition Against the Death Penalty

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” No one convicted of a crime should face punishments that are considered severe or unfair. Being sentenced to death seems to be the grimmest and harshest sentence possible though, so why is it permissible under the protection of the Eighth Amendment?

Death penalty

In the early 1970’s the U.S. Supreme Court ruled the death penalty to be in violation of the Eighth Amendment. Within a few short years however, during the case of Gregg V. Georgia, the Supreme Court ruled by a wide majority that the death penalty under new statutes were no longer unconstitutional. Under the new guidelines, the trials of someone facing the death penalty must be a two part, with the first determining guilt or innocence and if found guilty, the second step to decide prison or death.

Is Utah pro-death penalty?

Photo by: Humphrey King

The state of Utah wasted no time in welcoming the death penalty back. In fact, Utah was one of the first states to begin perform an execution after the nationwide overhaul of capital punishment. Utah is also the only state to still have the questionable firing squad as an option of carrying out the death penalty when unable to “obtain the substance or substances necessary to conduct an execution by lethal intravenous injection” according to Utah Code 77-18-5.5. Many death penalty activists in Utah are currently fighting to cease the death penalty in Utah on the next legislative session. While many claim it is truly unconstitutional to take the life of another person under law, others admit the death penalty with the cost of the continuous appeals is just too expensive to support.

Capital felonies

Until Utah lawmakers decide to abolish the death penalty, Utah Code 76-3-206 states: “A person who has pled guilty to or been convicted of a capital felony [such as murder] shall be sentenced in accordance with this section [and if the person] was 18 years of age or older at the time the offense was committed, the sentence shall be:

(i) An indeterminate prison term of not less than 25 years and that may be for life; or
(ii) On or after April 27, 1992, life in prison without parole”;
(iii) [or the ultimate punishment,]  Death”.

Utah Court of Appeals rules against Utah Escort Ms. Lawless (and yes, her real last name is “Lawless”)

A Utah female escort, Micaela Beth Lawless (yes, last name “Lawless”), lost her appeal before the Utah Court of Appeals  due to not specifying which law she believed was unconstitutional and led to her arrest.

Utah cities targeting sexually oriented businesses


Photo by: Dennis Skley

In the late 1980’s, major cities in Utah started targeting sexually oriented businesses such as escort services and adult book and video stores. In an effort to reduce prostitution and preserve a clean-cut curb appeal, Utah cities began making it more difficult for sexually oriented businesses to operate, by requiring all employees of the establishment to have a license for that specific type of business and restricting those business a certain distance away from schools, parks, and churches. Those restrictions along with the cost of licensing each employee and the extended waiting period for licenses to be granted, most sexually oriented businesses have a difficult time remaining operational while staying within the laws of the city and state.

State of Utah permitting cities to target escort services

Utah Code 10-8-41.5 permits each individual city to require a license for sexually oriented work such as an escort service. That section reads “A person employed in a sexually oriented business may not work in a municipality:
(a) if the municipality requires that a person employed in a sexually oriented business be licensed individually; and
(b) if the person is not licensed by the municipality.”
The state of Utah and all cities requiring licenses for sexually oriented work are treading a fine line on being unconstitutional. Beyond that, some methods of enforcing said licenses are also questionable.


Micaela Beth Lawless, a lawfully licensed escort in Midvale, Utah was arrested for performing her business in the neighboring city of Sandy Utah where she was not permitted to do so without the required Sexually Oriented Business License for that specific city. Lawless did not openly seek clients outside the city she was licensed in, however she was contacted by an undercover officer and asked to meet in nearby Sandy which borders the city of Midvale to the south and east. Fulfilling the request of a potential client, Lawless drove the minimal distance to a hotel within Sandy city limits where she was apprehended by awaiting law enforcement and charged with practicing a Sexually Oriented Business without a Sandy City license.

Violation of Constitutional rights

Photo by: aaron_anderer

Photo by: aaron_anderer

Lawless originally disputed her charges during a hearing that took place at the Sandy City Judicial Court. She claimed that her first and fourteenth amendment rights had been violated. These amendments are what safeguard each citizen’s freedom of speech and expression; however one feels to express themselves. Additionally the Equal Protection Clause found in the Fourteenth Amendment extends from the federal government to state governments the protection of citizens against discrimination.


State or City-Not one in the same

Although Lawless originally argued the unconstitutionality of the state statues listed in Utah Code 10-8-41.5, she then reformed her debate and specified that the Sandy City law governing sexually oriented business licenses is what she found unconstitutional. Her motion to dismiss was denied and she was convicted of the charges. Lawless then appealed her case in the West Jordan Utah Third District Court where she again argued the state statues (that protect the city statues of the same nature) violated her constitutional rights. Unfortunately, because she changed her case with the Sandy Judicial Court to specify the city law versus the state law, her motion to appeal based on the unconstitutionality of the state law was not granted.

“Lack of preservation”

Photo by: Joe Gratz

Photo by: Joe Gratz

In the case of Sandy City v. Lawless, it states: “In the district court, Defendant abandoned her arguments regarding the state statute. On appeal, Defendant attempts to raise her previously abandoned arguments regarding the state statute; she does not brief the question of the Sandy ordinance’s constitutionality. We thus are not in a position to review the issues raised. We therefore affirm.” When debating charges or appealing a conviction, it is imperative that topics do not get muddled along the way; An experienced criminal defense attorney will ensure that vital information is organized and discussed thus not losing opportunities in the court system.