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.