Some opponents of the death penalty wish to see the Supreme
Court declare it unconstitutional, and they are not too picky about how that
gets done: not jurisprudence but jurispretext.
The problem with that is that the Constitution itself
categorically sanctions capital punishment, for instance by specifying in the
Fifth Amendment certain limitations on the conditions in which a person may be
“deprived of life.” Whatever “cruel and unusual punishment” means in the Eighth
Amendment, no one involved in the drafting of that language or the ratification
of the Constitution believed that it prohibited capital punishment. “We should
not pretend the Constitution is silent or ambivalent about the basic existence
of the practice,” writes Damon Root, author of Overruled: The Long War for
Control of the U.S. Supreme Court. “Like it or not, the death penalty is
constitutional.”
The current Supreme Court action regarding the death
penalty, from a legal point of view, amounts to little more than trivia. In
some states, only prison employees may be present in the death chamber, which
means that if there is a Christian or Muslim chaplain on the prison staff, he
may be physically present, but a Buddhist or Zoroastrian may be denied similar
consolation if there is no affiliated clergyman on the payroll. That case would
be of scant interest if not for its intersection with the issue of capital
punishment. Another case involves a man who suffers from a rare disease that,
according to his lawyers, would cause him to endure horrifying pain if he were
to be put to death via lethal injection. Likewise, that case has little to do
with the merits or acceptability of capital punishment as such.
There is a long history of this sort of thing when it comes
to the death penalty. The Furman case found the Supreme Court handing
down a national moratorium on executions in an intellectually and legally
incoherent decision — it was a 5–4 case with five different majority opinions —
based on the nebulous considerations of arbitrariness and loosely defined
“discrimination.”
Most of the popular arguments against the death penalty are
like most investment advice and Republican campaign promises: I want to
believe, and am inclined to do so, but they do not stand up to much scrutiny.
It may very well be the case that an innocent man will be sentenced to death,
but that also is an argument against incarceration, speeding tickets, and much
else. An execution cannot be undone, but neither can the damage from 40 years’
wrongful incarceration. The irreversibility of the death penalty is an argument
for prudence in its use, as indeed we must be prudent in all uses of state
violence. It is not an argument against the thing itself. Neither is the
related argument that the wealthy and well-connected tend to achieve better
outcomes in capital cases than do the poor and the marginalized. There is
little doubt that this accords with the facts on record — everybody hates
lawyers until one is needed, and in a murder case, there is practically no
expense that will not be endured — but, again, this is an argument for
procedural reform rather than argument against a mode of punishment.
The myth that it is wildly more expensive to pursue a
death-penalty case than to manage a lifelong incarceration would, even if it
were true, be a sterile argument. There are many good occasions for the green
eyeshades, but responding to murder or other heinous crimes is not
one of them.
The fundamental obstacle to arguments against capital
punishment is that it is not as a general matter unjust, though it may be
unjustly applied in some particular case. Capital punishment is applied
unevenly and in ways that often are perplexing, but it is applied relatively
rarely, and it is applied in the context of a legal system that, whatever its
faults, provides the accused with representation, procedural openness, a
generous appellate process, and much more. Our prisons are a scandal, but the
process by which offenders are remanded there is admirable, strange as that
word may sound in this grim context. It is not perfect or free from abuse —
including the willful abuses and occasional incompetence of police,
investigators, and prosecutors, which are serious problems — but perfection is
not the criterion of legitimacy or constitutionality.
There is a more straightforward case against the death
penalty: that, on balance, it adds more violence and horror to our society than
it is worth, that it does not bring out the best in us or in our institutions,
that in our necessary pursuit of justice we need not see to it that the bitter
cup is drained to the dregs in every instance, that we are better off showing
mercy in this matter, and that what mercy entails is forbearance toward those
who in fact deserve the worst that we might hand down.
But these are not questions for the Supreme Court. They are
considerations for Congress and the states, which have the power to end the
practice of capital punishment whenever they so choose. The Democrats who
currently are in control of the House of Representatives could, if they had the
courage of their convictions, make an issue of the death penalty in federal
cases, and could probably count on the cooperation of at least a few
Republicans in Congress and many more conservatives outside of elected office.
And it would be a far better thing to eliminate capital
punishment on principle rather than on pretext.
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