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The Death Penalty is Unconstitutional!

By December 22, 2020One Comment

In today’s Legal Brief I argue that the death penalty is Unconstitutional – because it is.  Convince me I’m wrong.

Currently about 28 states have criminal statutes which provide for killing people for certain crimes (can you tell my bias already?). 

I expected to see that most states with the death penalty are in the South but as you can see, that is not really true.  I think I thought that because Texas has the vast majority of inmates on death row and it skews the statistics south.  The states death penalties are almost all for the highest level of murder but the Federal Government also has the death penalty not only for murder but also for treason and espionage. Did you know that the Federal Government put to death a husband and wife for spying for Russia as recently as 1953?

In any case, there are many moral arguments against the death penalty, one with which I agree but this isn’t the blog for that, because morals and ethics are not in the purview of the law – in order for a statute to be held void by the Courts it must be found Unconstitutional.

So, there are two parts of the U.S. Constitution which are possibly relevant and which death penalty arguments center – the 4th and 8th amendments to the Constitution. Although a lot of the focus and argument in the courts has centered on the 4th Amendment it’s really the 8th Amendment which rightfully makes the death penalty Unconstitutional.  And what does it say?

Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

And there you have it folks– all of the 8th Amendment – governors back then were much more to the point than nowadays.  And like them, my main  argument today  is simple, but that doesn’t mean it’s incorrect, and that is: the government killing a citizen is cruel and unusual punishment.  Simple.

We muddy the water and pervert the Constitution when we ask “Does the person deserve to die?  Maybe they do but that is a question for God, not men.  The only relevant constitutional question is whether we deserve to kill.”

The answer is “no.” As the 8th amendment was a reaction to the harsh and unjust penalties handed out by 17th century governments and, as we have largely forgotten, a means of transferring power from government to the people. So, even the idea that we are one of the few remaining “civilized” societies that has the death penalty shows us that we have lost our way on this issue.

So, what have Supreme Court judges said about the 8th amendment?  Justice Warren said it best in Trop v. Dulles:

“The exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of twelve years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character.”

And even before Williams, the Court back in 1910 in Weems v. United States acknowledged that what is considered Cruel and Unusual Punishment is progressive and may acquire wider meaning as public opinion becomes more enlightened.  In the same case the court held that 12 years in prison was cruel and unusual for a crime of falsifying documents.  Isn’t  death cruel and unusual even for a charge of murder?

Because  the one thing we know for sure is that we cannot bring people back from the dead.  A completed death sentence cannot be undone.  I think this cartoon says it well.

Another thing we know for a fact, and that lawyers know better than most, is that the justice system is flawed and will never ever be perfect. Ever.  Juries are biased, witnesses are biased, jurors sympathize with people they relate to in background and experience.  Witnesses lie, police lie, the system will never be perfect – do not kid yourself.

And, it is a proven FACT that the color of a person’s skin both the Defendant AND the victim play a crucial and undeniable role in who receives the death penalty.  People of color account for 43% of total executions since 1976 and that’s EVEN after a case in 1972 that changed the way the death penalty phases have to be done in order to make it more fair! (Furman v. Georgia). A 1997 study in Pennsylvia found that the odds of receiving the death penalty increased 38% if the Defendant was black.  What can be more cruel and unusual than whether you live or die being decided by the color of your skin? 

And even if the Defendant is white, wrongful convictions are numerous.. even though I’d argue even just one is enough.  According to the EJI Organization, the factors involved in wrongful convictions death penalty cases are, (1) Mistaken eyewitness ID, (2) Coerced confessions and police or prosecutorial misconduct and (3) Defendants who are promised lenient treatment if they testify against a co-Defendant.

But most importantly, listen to this:  172 people have been exonerated and released from death row since 1973.  172 people that were going to be killed except for a successful appeal.  Even just one is enough.  And I haven’t even got into how poor people and those with public defenders are more likely to be sentenced to death.

Because I don’t have to. We have enough facts, enough cases, 172 to be exact.

Walter McMillian spent 6 years on death row in Alabama before being proved innocent and released.  As he testified following his release:

I experienced the executions with the greatest pain and with enormous fear about whether this would happen to me. From my cell you could smell the stench of burning flesh. The smell of someone you know burning to death is the most painful and nauseating experience on this earth.

The trauma Mr. McMillian experienced led to early-onset dementia. He had lost his logging business and sold car parts until he became too ill to work. In the last two years of his life, he couldn’t enjoy the outdoors or get around much without help. He died on September 11, 2013.

What could possibly be more cruel and unusual and barbaric than that?  Ask yourself, if 172 people escaped, how many haven’t?  Because the truth is that we have killed people who were 100% innocent and we will continue to do so and THAT is cruel.  And THAT is the exact thing the 8th Amendment was put in place to prevent.

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