Is the Death Penalty Constitutional?

Tuesday night's botched execution of an Oklahoma prisoner has reignited America's long-running debate over the propriety of capital punishment. As a policy matter, I'm with the abolitionists. When it comes to the death penalty, our criminal justice system (federal and state) has a proven track record of injustice, malfeasance, and idiocy. It's foolish to keep trusting the government with such a grave responsibility.

But that's not the same thing as saying the death penalty is unconstitutional. In fact, the Constitution plainly sanctions capital punishment in several instances. The Eighth Amendment is the most famous, with its injunction against inflicting "cruel and unusual punishments." The Fifth Amendment also provides textual support for lethal punishment. No person, it reads, shall be "deprived of life, liberty, or property, without due process of law." That means the government may in fact deprive you of your life, but only after you've been properly charged, tried, convicted, and sentenced to death (and then only after you have exhausted your legal appeals). Upon ratification in 1868, the 14th Amendment's Due Process Clause applied that safeguard against the states.

To be sure, judges are duty-bound to scrutinize the application of capital punishment in each and every case that comes before the bench. But the only way to end the death penalty in its entirety (short of constitutional amendment) is through the political process.

The death penalty should be vigorously debated. Does it deter crime? Does it provide closure to victims and their families? Is it revenge masquerading as justice? Is it a bloody relic we're better off without? But we should not pretend the Constitution is silent or ambivalent about the basic existence of the practice. Like it or not, the death penalty is constitutional.

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  • Notorious G.K.C.||

    And there's the part in the Fifth Amendment saying, "No person shall be held to answer for a *capital,* or otherwise infamous crime, unless on a presentment or indictment of a grand jury" (emphasis added)

  • Notorious G.K.C.||

    So there must be *some* circumstances when you can execute someone who was indicted by a grand jury and convicted by a jury.

  • ||

    Apparently, in this presidency anyway. There are circumstances where you can execute people, American citizens even, without a grand jury or conviction.

    The President even goes on TV and calls it justice.

  • ||

    Given that the death penalty was in obvious effect during the writing of the Constitution and the Bill of Rights, and the reasonably contemporaneous development of the guillotine as an attempt to make execution more "humane", it can be reasonably surmised that the authors and other Founders thought the concept of the death penalty was Constitutional. And, in fact, Constitutional in application for a broad array of crimes and not just murder, as the Nazgul recently ruled.

    Whether the death penalty is acceptable to modern society (or, to put that more starkly in reverse, whether the death penalty is a barbaric practice of a bygone age) is a reasonable subject for debate. But it's constitutionality should not be, unless one is one of those Living Constitution types (meaning, Living without actually being amended).

  • Bablo Biggins||

    You mean Constitution written by middle aged rich white slave holders?
    That constistution?

  • ||

    Unless there's another piece of paper lying around somewhere that is frequently used as the implied object of the word "constitutional", then yes, I do in fact mean the Unabridged Landed Cracker Version.

  • thoreu||

    Yes, the same middle aged rich white (and some of them slaveholders) that gave you the right to write the uninformed tripe you just expressed. The same middle aged rich white guys who-some lost their lives, and the lives of their families, and many lost all their fortunes-but they had the excellence of good character to make founding documents better than their own failings, and most certainly better than any of the asshats on the current political scene. Do some real informed reading for a change. This isn't Middle Earth.

  • MWG||

    "Yes, the same middle aged rich white (and some of them slaveholders) that gave you the right to write the uninformed tripe you just expressed."

    You do realize that the country was founded PRECISELY on the idea that rights don't come from the government or middle aged rich white men, for that matter.

  • OneOut||

    Bablo Biggins|4.30.14 @ 4:17PM|#

    "You mean Constitution written by middle aged rich white slave holders?
    That constitution?"

    Hi Tony.

  • Black&Yellow||

    ...or do you mean the mythical "social contract" that I did not sign?

  • Zeb||

    I agree that the constitution certainly wasn't intended to forbid the death penalty. It certainly wasn't unusual punishment at the time. I also agree that it is a political issue, not a constitutional one.
    But I don't think you necessarily need to be a "living constitution" person to think that it might be unconstitutional despite the obvious lack of intent by the authors of the constitution. Sometimes people write laws without fully understanding the consequences of what they have done. This is possible in the constitution as well. Original intent is worth considering, but when it comes down to it, the actual text is what the constitution is.

  • Mickey Rat||

    The actual text contemplates the death penalty existing under the constitution. So yes, you have to be a living constitutionalist to believe the death penalty is outright unconstitutional.

  • dpbisme||

    Zeo, I am very much against a Living Constitution. This is a Democracy! The thing has been changed before and will be changed again. All I am saying is that you should not be able to change the intent of a law. If the Law is wrong/bad than change the law. The Problem with your last sentence is that people re-interpreted the text to mean something different than it was meant to. Again Change the Law... Don't invent something out of nothing... Look at Obozo-Care.... how many pages and how many interpretations? LAWYERS write these laws with the expressed purpose that they can be skewed to mean something else.

  • Notorious G.K.C.||

    I concur with your argument except the part where you say

    "the reasonably contemporaneous development of the guillotine"

    because that's no part of America's common-law tradition, where hanging, not slicing, has been the traditional method. Doesn't mean the guillotine would be unconstitutional, but it couldn't, IMHO, be defended purely on historical grounds, if we restrict ourselves to the history relevant to the development of our Constitution.

  • ||

    Understood; I cited that merely as supporting evidence that the "cruel and unusual" part of punishment was clearly being considered by contemporaries, without excluding the death penalty altogether.

  • Notorious G.K.C.||

    Certainly.

  • Tony||

    I don't see why "cruel and unusual" isn't sufficiently elastic that a court could determine that the death penalty, by modern standards, qualifies.

  • Zeb||

    Tony has a point. "Unusual" only means anything in a particular context. Surely the authors realized that what is unusual will change with time and means that punishment should be judged by contemporary standards.

  • dpbisme||

    Again you are assuming that laws can be interpreted how every you want them... That is not the way it is supposed to work... The Law is the Law until it is changed... It is not some "touchy feely" thing that can change depending the day of the week... I am not refereeing to just this but all our laws...

  • wwhorton||

    Fair point, but I think that goes to a general yardstick by which you interpret the Constitution. If it's literal, then that phrase means that capital punishment's legitimacy varies based on the policies of "peer" nations, I suppose. If it's more strict, then you have to go by what was "cruel and unusual" at the time, meaning that capital punishment in general is perfectly acceptable.

    For the record, I'm against it, but I agree with Root that it seems to be constitutional.

  • Procrastinatus||

    Because 60+% percent of the population still favor it, so even by modern standards most wouldn't call it "cruel", and Texas averages an execution every two weeks, so it's not "unusual" either. Note that being either cruel OR unusual doesn't disqualify execution on constitutional grounds. The clause states "and" so it has to be both.

    So just by being frequent it's technically constitutional.

  • Calidissident||

    I think the death penalty is unfortunately constitutional (you can make an argument it's not, but you risk veering too deep into Living Constitution territory), but that's an absurd defense of it. By that logic, the 8th amendment doesn't prohibit anything as long as the government does it enough. That's not what "unusual" means in that context.

  • Edwin||

    pretty sure the very short article up top described exactly why we understand now that it wasn't meant to ban the death penalty. The original writers' intentions are actually implied right there in the writing of the same document.

    Oh but wait a minute, that isn't the issue, you just want words to mean whatever you want them to so you can pick and choose both the constitution and law in general. You also want the judiciary to be dictators via this magical word-defining power.

  • Tony||

    Calm down Susan. "Cruel and unusual," perhaps most among all the phrases in the constitution, is ripe for reinterpretation with changing standards. There were forms of punishment in the 18th century that are now considered both cruel and unusual. "Cruel" is relative enough, but "unusual" depends on a modern cultural context for its meaning. Stick to the text. It doesn't say "unusual by an 18th century standard," does it?

    Clearly the constitution presumed capital punishment as legal. It also presumed horses as efficient transportation. I'm not saying the argument is without merit, I'm saying there is a plausible constitutional pathway. Given that the other parts of the constitution mentioning capital punishment are restrictive rather than prescriptive, using the 8th doesn't contradict those. The government still won't be able to deprive people of life without due process, just like it couldn't before.

  • TheZeitgeist||

    I don't see why "cruel and unusual" isn't sufficiently elastic that a court could determine that the death penalty, by modern standards, qualifies.

    If droning an American in Yemen without due process is not cruel or unusual, indeed is 'constitutional,' then these less 'unusual' forms of execution practiced in the actual legal system definitely are as well.

  • ||

    I almost vomited when BarryO said that 'justice was done' in regard to assassinating OBL.

    Killing a man and members of his family in their home in the middle of the night without a trial or even opportunity for surrender is, by no measure, any form of justice. The fact that our leader is so morally bankrupt that he can't tell the difference is... predictable.

    I wouldn't pretend I didn't want OBL dead, extrajudicially even. I wouldn't, in any way consider it a moral or just act though.

  • Grand Moff Serious Man||

    I think it is fairly obvious that in the context of capital punishment, 'cruel and unusual' simply means any method intended to cause physical and psychological torment to the condemned.

    The Founding Fathers did live in a time, after all, where the standard punishment for high treason was to be dragged to your site of execution, half-hanged, castrated, disemboweled, and have your entrails burned before your eyes before they beheaded you and displayed your head on a spike.

    They didn't want capital punishment to become a means of state terrorism.

  • Andrew S.||

    The death penalty, in and of itself, is constitutional.

    I believe the methods used in Oklahoma yesterday trip the 8th though.

    And I'm against the death penalty itself for the simple reason that I have zero trust in government to always kill the right person.

  • ||

    "...our criminal justice system (federal and state) has a proven track record of injustice, malfeasance, and idiocy."

    This.

  • space junk||

    + 1

  • Anonymous Coward||

    Is the death penalty Constitutional?

    Yes. See the Fifth and Eighth Amendments.

    Is it prudent for the State to have the power to kill the convicted?

    No.

  • wwhorton||

    I'll go you one better. At a certain point can we agree that the Constitution of the United States is not a firm ceiling on what would be an ideal government? Just as Progressives believe that the Constitution does not go far enough in affording the Federal government authority in the day-to-day affairs of citizens, anarchists, minarchists, and I daresay many libertarians believe that even were the government to adhere strictly to the Constitution it would still have more power than they/we would prefer.

    Capital punishment is one of those areas for me, certainly.

  • Libertymike||

    The constitution is also contradictory; thus, where the power of the state and individual liberty intersect, the former must, consistent with the principles of a free society, give way to the latter.

  • Stormy Dragon||

    Speaking of problems with the constitution: if the Vice President is being impeached, does he get to preside over his own trial in the Senate?

  • np||

    The founders fucked up. They wrote in exceptions everywhere for the government to intervene or make final judgement.

    With "due process" or in other words, with the rule of law, they can deprive you of life, liberty, and property. For whatever reason. Remember "due process" doesn't say jack shit about what those reasons are.

    Take the 4A for instance. Hey... look at that weasel word "reasonable". Or if it's judged unreasonable, they can just ask for a warrant. The only requirement is being specific of who and what to search for. But there's absolutely nothing against government rubber stamping warrants.

  • Edwin||

    //The founders fucked up. They wrote in exceptions everywhere for the government to intervene or make final judgement.

    Not really. If you read the words and hold to their actual definitions, there would be no expansion of Federal power like has happened.

    The problem is the judiciary has literally granted itself the power of dictator, and the executive went right along with it. The Supreme Court's interpretations are frequently ludicrous and outside the actual language of the text cited. I mean "has the right to administer a postal service" (or whatever the exact text is), how on EARTH could that be construed as also granting them the power to BAN other postal services!? IT CAN'T! That's ADDING in shit! Or ho about the dude with the wheat he grew for his own consumption? Come on

    Even the "general welfare" clause is limited by those two words if you actually care to read it correctly. In the early days that meant no direct to a person transfers of federal money, i.e. the word "general".

    And nobody has had the balls to call the government out on it. I'm just waiting for some Texan governer to do this, to really do it, be like "You want to lie about shit in order to tell us what to do? Fuck you, we're not paying our income taxes." Call their bluff.

    The SCOTUS is a joke

  • Joe Blowski||

    there is no such thing as 'the general welfare clause.' that's part of the preamble, not unimportant, but not a specific provision. general welfare has nothing to do with whatever someone told you about direct payments to individuals. i can assure you, such an idea was never broached, either at the philadelphia convention or during state ratification convention. general welfare is a common law principle--salus populii lex suprema est, which very much means that the good of the entire polity is one of the objectives of government.

  • PersephoneK||

    I agree with that, and I would imagine the Founders would as well. They created its framework to be a living, ever evolving document. Its far from perfect, but we can still use it as the foundation for our society.

  • Edwin||

    no they fucking didn't

    they wrote in a way to change the constitution.

    They never said that we should get we want by pretending not to understand what it says

  • OneOut||

    PersephoneK|4.30.14 @ 8:14PM|#

    I agree with that, and I would imagine the Founders would as well. They created its framework to be a living, ever evolving document.

    You are right.

    The Founders even wrote in the method of evolution when they wrote about how to amend the Constitution.

  • Sanjuro Tsubaki||

    No matter how many times you pose the question, the death penalty is constitutional. If, however, you are the sort who thinks that rather strong evidence dating back to the founding of the country is trumped by some brand new pronouncement by one justice or legal scholar, then just about anything is (un)constitutional...from ex post facto laws, indefinite detention without a trial, etc to a requirement that everybody buy health insurance. And I'm not even delving into the morality question at all. Laws and words themselves become very malleable to anyone who becomes ideologically rigid. If that happens on a large scale, however, sooner or later basic legal questions are going to be settled in the streets. "Peaceful" anarchy, my ass!

  • PersephoneK||

    I don't think the Death Penalty in principal is unconstitutional, however, in practice it most certainly is for two reasons: 1) as evidenced by what happened in OK, it clearly can be cruel and unusual, horrific actually, and 2) because there is NO way to be perfectly certain that 100% of those executed are guilty of the (hopefully) heinous crime (that also hopefully involved killing another person) they've been convicted of committing.

  • ||

    because there is NO way to be perfectly certain that 100% of those executed are guilty of the (hopefully) heinous crime (that also hopefully involved killing another person) they've been convicted of committing.

    Since when has the constitution or rule of law been about certainty? There are articles of the constitution that were written with certainty that those sworn to uphold the constitution have violated with certainty.

    While killing an innocent person is certainly a risk, there are certainly circumstances where the risk is minimal if not entirely eliminated and clemency is, arguably, an unconstitutional undermining of due process.

    Jacqueline Annette Williams and Ferrell Caffey murdered Samantha (7), Joshua (10), and their mother Debra Evans. They carved Elijah Evans, unborn, from Debra's womb and left Jordan (2) weeping on his mother's body. They were caring for Eli when the police showed up at their apartment hours later. It was their plan to steal him, they were convicted and sentenced to death.

    However, the IL justice system made mistakes elsewhere and (outgoing) Gov. Ryan couldn't bother with sorting through cases one-by-one, so blanket clemency was granted.

    Sparing someone's life, while noble, is no guarantee of justice either, and the idea that certainty and justice should go hand-in-hand at all times or not at all is... irrational.

  • ||

    It's not without a certain irony that every argument libertarians trot out against the state using lethal force has also been used by the state to justify outlawing citizens from using lethal force as well. But it's downright hilarious to see you all unironically apply an "evolving standards of decency" test. Maybe if we just referred to the death penalty as a life tax?

  • SQRLSY One||

    Is it Cunt-stitutional for Government Almighty to take my life?!?! What a silly-assed question!!! Of COURSE it is Cunt-stitutional fer Guv-mint Almighty to take my life! Guvmint Almighty gave BIRTH to me by licensing (permitting) my parents to have sex… Guvmint Almighty Giveth, Guvmint Almighty Taketh Away, Blessed Be that High and Holy Name of Guvmint Almighty… So the Sacred High and Holy Wisdom of the Church of Scienfoology has taught me, Blessed Be Their Wisdom… Bee Stoic like MEE!!! To learn more about Scienfoology, please see www.churchofSQRLS.com

  • OneOut||

    PM|4.30.14 @ 9:16PM|#

    It's not without a certain irony that every argument libertarians trot out against the state using lethal force has also been used by the state to justify outlawing citizens from using lethal force as well.

    Could you name some ? You make big claims but then offer nothing to balk up your statements.

    If you know of all these ironic positions please inform us so that we can laugh at the irony along with you.

    I'm no pureblood Libertarian but I love irony.

  • SQRLSY One||

    I dunno about irony, but I do-know about circular arguments… The witches MUST be burned, ‘cause, well, ‘cause they’re WITCHES, Gawd-Dang-it!!! I have read though that in Dark Ages Europe, for SOME strange reason, the witches were ALWAYS members of the lower classes, never the popular people about town, and they sure as heck were NEVER Kings, Queens, Prices, or Princesses… I wonder, WHY was THAT?!?!

  • JeremyR||

    Er, considering it was pretty common when they wrote it, sure.

    I really don't understand why Reason is always harping on the death penalty. Libertarians should be in favor of punishment that doesn't require prison.

    The only qualms about it should be whether a person is truly guilty or not, which is why I think it should be reserved mostly for serial killers or cases so obvious that there is no doubt.

  • madamadam||

    Yes, it's constitutional. No, what happened in Oklahoma was not cruel and unusual. "Unusual" in the 1700s was medieval type torture, not some guy feeling pain for 20 seconds while his heart is stopping. They had no problem watching men writhe around at the end of a rope for a few minutes while suffocating to death.

    If the drug cocktails are such an issue, then go back to shooting or hanging. It's way cheaper. And bring it back to the public square. Executions don't have any deterrent if no one sees them.

  • David Case||

    According to Daniel Hannan in "Inventing Freedom: How the English Speaking Peoples Made the Modern World" the phrase "cruel and unusual punishment" was lifted from the English Bill of Rights (1689). From the book -

    Here, for example, is the English Bill of Rights on criminal justice: "Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." And here is the U.S. Constitution: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    I am no constitutional scholar, but it has always struck me that we moderns may be misconstruing the phrase "cruel and unusual punishment" due to changing language use. Another way to read it would be more in line with the Equal Protection Clause of the 14th, that is it would be cruel to single out someone for unusual punishment not given to others for the same offense. Justice is supposed to be blind, after all.

  • dpbisme||

    Well of course it is. The Death Penalty was in place at the creation of the Constitution. There is little mention of abolishing it by the Founders of the Republic and had they wanted to do so it could have been in the Bill of Rights.

    This is another example of lawyers twisting a law. It happens all the time. There should be an INTENT paragraph in plan language with each law so that lawyers cannot twist it's intent when the language changes.

    This is what happens when Lawyers get hold of things... they start arguing the language instead of the intent.

    DPB

  • ||

    we need to start using the death penalty on slimebag lawyers, judges and politicians....just for general principle

  • ||

    in the end as long as its politicians judges nd lawyers who really cres if it's constitutional....IT WOULD BE FUN if not justice...

  • GregMax||

    "But the only way to end the death penalty in its entirety (short of constitutional amendment) is through the political process."

    Or stop doin' shit that gets you sentenced to the death penalty.

  • OldOllie||

    I have no moral objection to executing murders. I just don't think the government is sufficiently competent to be trusted with that kind of power.

  • David Case||

    I did some more digging on the subject of the founders borrowing from the English Bill of Rights and found this article - http://scholarship.law.berkele.....alawreview

    which defends the idea that the intent of the *original authors* (Parliament) was more along the lines of proportionality both in the general and in the specific. That is the punishment should in general fit the crime (not be excessive) and not be 'tweaked' to single out one particular offender (not be cruel and unusual or illegal). The original intent of Parliament was most definitely not to prevent punishments that were 'barbarous' as the American founders came later to believe. Here are some representative punishments from the time immediately after the passage of the English Bill of Rights (quoted from the article) -

    "Executing male rebels by drawing and quartering continued with all its embellishments until 1814, when disembowelling was eliminated by statute. Beheading and quartering were not abolished until 1870. The burning of female felons continued in England until the penalty was repealed in 1790."

  • David Case||

    Okay, so where does that leave us with respect to original intent? Should it matter that the founders were already beginning to misinterpret "cruel and unusual" as meaning "barbarous" or should we, in good common law tradition, go with the original intent of Parliament instead? This is an entirely new twist on the question that I have never before considered. Reality, evidently, is complicated.

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