2001©
Before raising the question of the wisdom and correctness of utilization of the death penalty, consideration must be given to the Constitution and what it permits in this regard. In both the Fifth and Fourteenth Amendments there is direct reference to capital punishment. The Fifth states in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, ..." It further states (as does the Fourteenth) that no person shall "... be deprived of life, liberty, or property, without due process of law;..." Thus the conclusion is inescapable that the Constitution envisions the possibility of using capital punishment by either the national government or the states.
The Supreme Court has been equally explicit on this point. In Gregg v.Georgia (1976) the Court per Mr. Justice Stewart wrote: "For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se..." [as violate of the Eighth Amendment's prohibition of punishments that are "cruel and unusual]. He went on: "The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases."
Thus, to assert that the Supreme Court can and/or should find the death penalty unconstitutional is to maintain in effect that the Court serves as a continuously sitting constitutional review and editing body with authority to bring the document "up-to-date" as a majority of the Court sees fit. This power clearly would be inconsistent with fundamental principles of representative government and a judiciary bound by the law as it exists and not at the justices would like it to be.
As to the desirability or wisdom of utilizing the constitutional power to impose the death penalty, it is frequently asserted that there is a lack of sufficient moral justification for the imposition of the death penalty by society even when utilizing what are considered by most thoughtful individuals as proper procedures based on due process of law. I do not agree with this conclusion.
Moral justification of the death penalty can be justified by one simple principle: punishment should be roughly apportioned in severity to the nature of the crime. The criminal justice system throughout the world is grounded on this basic concept. While there are understandable variations from society to society on the specifics of punishments, the principle remains universal. If a society chooses through established and legitimate means to impose the death penalty for an identifiable set of particularly heinous criminal behaviors, there is no principled basis on which to object other than the speciality of the punishment due to its finality insofar as the ending of a human life is concerned. Certainly ending the life of a person who has committed what society has determined to be as a specially horrible offense does not lower society to the level of a murderer for one obvious reason: society, not the individual, has the ultimate legitimate power to determine what behaviors are unacceptable and what punishments may flow from violations thereof. Individuals have no legitimate power to determine what is criminal or to impose punishments. Therefore, in no principled way may the taking of a life by an individual be equated with capital punishment, nor can capital punishment be equated with murder. To conclude otherwise would require equating arrest with kidnapping and taxation with theft. The State, when acting lawfully, may use force legitimacy where individuals may not.
Thus, by the commission of specific criminal acts for which the death penalty has been previously established as a possible punishment, individuals may constitutionally be lawfully deprived of their life. The power of American governments to impose such a penalty is unassailable under the Constitution as it is presently written (activist lawmaking Supreme Court Justices and lower court judges notwithstanding). I support the imposition of this penalty in narrowly defined circumstances. So too does a clear majority of Americans. Those found guilty and sentenced to the ultimate punishment have been determined in courts of law to have lost their right to life because of their actions. Under the Constitution such punishment is neither cruel nor unusual.
Cutting through to the heart of the matter, the death penalty is simply society's way of concluding that a particular individual deserves to die because of what was done by that person. The punishment is justified by the nature of crime committed. If the condemned person suffers as a consequence of the penalty (setting aside the method of application) that is not only acceptable but desirable. Punishment and/or retribution is historically one legitimate purpose of the criminal sanction.
Insofar as practical consequences are concerned, thoughtful proponents of the death penalty do not justify their belief on any notions of general deterrence. This is an unproven assertion and is basically irrelevant to the central rationale. It may be concluded, however, that the individual executed will be prevented (i.e. deterred) from committing any further homicidal acts or other antisocial acts for that matter. It can be argued, of course, that life imprisonment would accomplish the same thing. This argument, however, not only ignores the fundamental assertion that the individual deserves to die, but also brushes aside the distinct possibility that while in prison further homicidal or other criminal acts by this individual may occur. The absence of a death penalty does indeed free these persons incarcerated "for life" from any meaningful behavior restraints thereby further endangering the lives of other prisoners and guards.
Concerns about executions of a person who did not commit the crime for which he/she was convicted are legitimate. Clearly such mistakes ought to be avoided by the imposition of very rigorous procedural protections that minimize this possibility. That such a mistake might happen (or has happened) is not, however, sufficient justification for the elimination of the penalty itself. If imposition of the death penalty is justifiable on policy and/or moral grounds, as I believe it is, then elimination of this public policy because of possible miscarriages of justice is no more appropriate than prohibiting the production and sale of a prescription drug that has a broad public benefit because it may result in the death of a very few individuals. Other analogies come to mind but the principle is clear.
What is at issue here are beliefs as to what is morally correct: what is "right" and what is "wrong." One may conclude that it is "wrong" to execute individuals no matter what they may do -- no matter how many lives they take, no matter the pain they cause, no matter the heinous quality of their behavior and/or motivation, no matter the wanton evil they seek to perpetrate. Such beliefs have much in common with pacifistic views condemning the use of force in the international arena. I conclude, to the contrary, that it is "right" in certain specified circumstances to execute individuals duly convicted of particularly horrible acts. I would go further and say that it is "wrong" to let them live because letting such individuals live denigrates the condemnation by society for the acts in question. Providing free room and board along with comprehensive medical and dental care for life, albeit in confined quarters, seems a wholly inadequate punishment for certain heinous crimes.
Note: For a more thorough examination of this issue see Paul Cassell's article: In Defense of the Death Penalty