Essay On Death Penalty Against Constitution

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.

CHICAGO — On the heels of major decisions about same-sex marriage and health care, the Supreme Court closed the term that ended last week with one more extremely contentious case, Glossip v. Gross, which was about the death penalty. The narrow issue in the case was the legality of Oklahoma’s most recent method of lethal injection, using a drug called midazolam. The court upheld that execution method in a 5-to-4 ruling, concluding that the challengers had not done enough to show that it was riskier than the alternatives. But the extensive opinions in the case confronted fundamental questions about the place of the death penalty in our constitutional system.

Marking the contentiousness of the issue, four justices announced their competing opinions aloud in the courtroom. It is uncommon for more than one justice to speak in a particular case. Four is almost unheard-of.

The separate opinions of Justices Antonin Scalia and Stephen G. Breyer, in particular, are worthy of note, as they express starkly opposing views of the death penalty’s place under our Constitution. Justice Breyer basically called for the abolition of the death penalty, while Justice Scalia argued that the Constitution itself protected the death penalty from judicial invalidation. But both views are misguided; the best position lies in between them.

Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”

But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights.

Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.

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