The Constitutional Unviability of the Death Penalty
The ethical and legal permissibility of capital punishment is perhaps the greatest moral question remaining in modern American politics. Irrevocable and ancient in origin, the right of the state to take the lives of its own people is one of the greatest powers a citizenry can confer on its government, and is one that every liberal society has had to reconcile with its notions of modernity in the 20th and 21st century.
The United States is no exception; however, questions regarding the morality of the death penalty have historically been replaced by a more tangible standard: constitutionality. Evolving, yet undoubtedly mercurial standards of ethicality and acceptability have repeatedly brought the question of the death penalty into the Supreme Court. Here, it has been challenged for its improper implementation, its inequitable application, and on the grounds that it is outright forbidden by the Constitution itself. While modern arguments against the death penalty often rely on humanitarian or emotional appeals, the strongest case against capital punishment requires a constitutional analysis of its egregiously unfair implementation, not a value judgment of the institution as a whole.
While the constitutionality of the death penalty has repeatedly been reaffirmed, the establishment of new rights throughout the United States’ history suggests that the death penalty’s permanence is far from guaranteed. As it stands, implicit racial bias in sentencing procedures and the arbitrary implementation of the death penalty both undermine the State’s right to administer this form of punishment. These procedural flaws necessitate the abolition of capital punishment on the grounds that it violates the 5th and 14th amendment.
Before delving into a discussion about the constitutionality of the death penalty, however, it is first necessary to appreciate the historical persistence of capital punishment in the United States. The first recorded execution in the American colonies was of George Kendall in 1608, who was put to death by firing squad in Virginia for spying on behalf of the Spanish. Since then, historians have documented an estimated 20,000 executions at the hands of the state on American territory.
While at the time of this country’s conception execution was a nearly ubiquitous form of punishment (often for crimes that would not even warrant a citation today), the last 50 years have seen a dramatic transformation of this once universal form of justice. By 1970, 21 countries had eliminated capital punishment for all crimes other than wartime offenses and insurrection. This number has since jumped to 103, putting countries that continue to utilize the death penalty in the minority. As it stands, the death penalty has been eliminated as a form of punishment either in law or in practice in more than 70 percent of all countries.
Today, the majority of the world’s executions are carried out in China, the Middle East, and the United States. After repeated attempts to abolish it entirely, the U.S. federal government and 35 states still retain the power to take the lives of their citizens.
There are several possible explanations for the United States’ attachment to the death penalty. One theory attributes America’s relative conservativism — a product of its puritanical upbringing — to the pervasiveness of capital punishment. Yet another, espoused by historian David T. Johnson, associates America’s fondness for the death penalty with its fundamental respect for the rule of law and personal liberty. To Johnson, a heightened emphasis on these values has resulted in an increased intolerance of those who violate them. However, while the death penalty has pervaded, there has been a discernible trend towards the more humane, in line with the “evolving standard of decency that marks the progress of a maturing society,” in the words of Chief Justice Earl Warren. To say that the death penalty will always be constitutional is to ignore this reality.
The death penalty’s increasing unpopularity is evinced by the nearly unprecedented number of challenges it has faced in the Supreme Court. Despite numerous reassertions of the death penalty’s constitutionality, the jurisprudence in its favor is far from foolproof.
Advocates and defenders of the death penalty in the United States draw primarily from the 5th amendment to justify this particular governmental right. The relevant text states simply that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” What is colloquially known as the “5th amendment argument” contends that nothing the constitution directly considers — in this case, punishing a crime via “capital” punishment — can be deemed unconstitutional. In other words, because the 5th amendment mentions capital punishment and does not explicitly forbid it, it becomes, in the words of constitutional scholar Joseph Blocher, a “permissible legislative choice” that is protected from other constitutional tests.
In Glossip v. Gross — a death penalty case in 2015 — Justice Antonin Scalia utilized the 5th amendment argument when he stated that “it is impossible to hold unconstitutional that which the constitution explicitly contemplates.” Building on this supposition, Justice Scalia proceeded to announce that “the death penalty is approved by the Constitution.” This is an incredibly bold claim. A slightly diluted form of the 5th amendment argument contends that at the very least, the Constitution’s Framers believed the death penalty to be within the bounds of legitimate state action, and thus used the 5th amendment to proscribe its overuse.
In Gregg v. Georgia, the Court held that it was evident from the Constitution’s text that “the existence of capital punishment was accepted by the Framers.” This is the logic that has thus far supported rulings on the constitutionality of the death penalty. Though backed by precedent, this analysis is not entirely logically sound.
To those who view the death penalty as a violation of basic American rights, the 5th amendment argument does not pass muster. The primary counterargument holds that the pertinent mentions of the death penalty in the 5th amendment function solely as prohibitions, and are by no means a grant of government power. The 5th amendment argument, then, relies on an enumeration of protections from government abuse to do precisely that which the amendment is protecting against. In other words, it requires the use of a document designed to limit government power to justify the ultimate government power. While the 5th amendment mentions the death penalty as a potential punishment, its mention is for the sole purpose of providing safeguards against it. Thus, the 5th amendment considers capital punishment as a possibility, “but only insomuch as it seeks to limit that possibility.”
While the 5th amendment argument reigns supreme, it is far from perfect, and opens up an opportunity for challenges against the death penalty on other constitutional grounds. In the present era, the most compelling argument against capital punishment relies on the frailty of the 5th amendment argument supported by an invocation of the 14th amendment guarantee to equal protection.
The 14th amendment guarantees the right to equal protection under the law, and ensures the equitable application of the law to all people. Historically, the death penalty has been challenged using the 14th amendment on two separate grounds: racial discrimination and arbitrary implementation. In Furman v. Georgia in 1972, “the potential for racial discrimination” informed one Judge’s decision to suspend the death penalty nationwide until procedural reforms were made (it was once again reinstated in 1976).
In McCleskey v. Kemp, the defendant asserted that systemic racial bias had resulted in his death sentence, a claim that was supported by a statistical analysis that proved race was a factor in sentencing trials. McClesky’s appeal was denied, however, as the defendant could not prove that racist procedures affected his specific case.
Since the ruling, McClesky has been characterized as the one of the worst Supreme Court decisions since World War II, and Justice Powell, who cast the deciding vote against McCleskey, later admitted that it was a mistake. These cases illustrate that the Court is willing to consider suspending the death penalty on the grounds of racial bias, if only reluctantly. Since McCleskey, it has been demonstrated that in capital sentencing procedures, juries are more likely to impose the death penalty when the victim of a murder is white. In light of these new statistics, there remains room for continued constitutional challenges.
However, the most compelling argument against the death penalty using the 14th amendment is the issue of arbitrary implementation. Procedural lethargy at the state level has led to the execution of only a small, randomly selected minority of those actually condemned to death. In California, it was determined that this was a violation of equal protection. Between the reinstatement of the death penalty in California in 1976 and its suspension in 2014, only 13 of the 900 convicts that had been sentenced to death had been executed, an execution rate of 1.4 percent. In an acknowledgement of this reality, the Court determined that, “[For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death — a sentence no rational legislature or jury could ever impose.”
A similar trend has been seen across the country. Due to extreme procedural delays, whether or not an individual is eventually executed is not dependent on the nature of the crime committed, or even the time of sentencing compared to other condemned individuals. Rather, it depends on the speed with which they can move through the penal and judicial process, leaving the lives of the condemned to a matter of chance. Given that this problem is not isolated to California —where the death penalty was suspended for this very reason—the problem of arbitrary implementation exposes capital punishment to its most viable constitutional challenge.
Like universal suffrage or gay marriage, accomplishing the abolition of the death penalty may, based on the aforementioned constitutional problems, require only the concerted effort of a sufficiently invested populace. The strongest argument against the death penalty is not based on morality or ethics — although a compelling case can be made for either of these — but rather, is grounded in the practical inability of the state to effectively and equitably administer this particular form of punishment. In light of repeated failures of implementation, the death penalty should be deemed a procedurally unviable practice, and should, based on the Constitution, be eliminated from the American justice system altogether.
