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Death penalty might indeed be unconstitutional

It might indeed be unconstitutional

In a recent column ("Flawed Judicial Mindset," March 3), Dana Kelley argues that the death penalty is plainly constitutional. Therefore, he reasons, if the Supreme Court strikes down the ultimate sanction, the justices will be altering the U.S. Constitution rather than interpreting it. That would be an act of judicial "tyranny" because the Constitution may only be changed by Congress and the states via the formal amendment process set forth in Article V of our governing charter.

I disagree with Mr. Kelley's analysis in multiple respects.

Let me begin by disclosing my own biases. I believe that the death penalty is morally justified in principle. There are some crimes for which execution is a morally appropriate punishment. However, I also believe that the death penalty is not morally justified in practice.

While I hold this latter view on multiple grounds, the two most important are as follows.

• First, according to the preponderance of the empirical evidence, the death penalty does not deter crime any more effectively than the sentence of life without the possibility of parole.

• Second, our criminal justice system, while the best and most reliable in the world, is far from perfect. A small but critical percentage of jury trials result in a wrongful conviction. This is demonstrated by, among other things, the string of exonerations of death row inmates over the last three decades thanks to improved analysis of DNA. Furthermore, many leading criminal law scholars have concluded that innocent people have in fact been executed in this country. Thus, the risk of imposing the death penalty on an innocent person is simply too great given that the punishment has no supplemental deterrent effect in comparison to life without parole.

The morality and legality of the death penalty are two different issues. And Mr. Kelley's piece concerns the law. So now let's turn to that subject. Mr. Kelley rightly points out that certain parts of the Constitution appear to presume the existence of the death penalty. In particular, the Fifth Amendment provides that no person "shall be held to answer for a capital ... crime, unless" the person is indicted by a grand jury. And the amendment also states that a person may not be "deprived of life ... without due process of law." He says that these clauses codify capital punishment; they establish that the Constitution "allows the government to impose a death sentence, as long as it is the product of due process." But the story is considerably more complicated.

To begin with, the Fifth Amendment grants no government powers. Instead, it places limits on such power. Thus, the authority to execute a criminal must first be identified elsewhere in the Constitution. For state governments, the power to impose capital punishment is provided by the 10th Amendment, which grants states general authority to regulate the affairs within their borders. For our national government, the power comes from Article I, Section 8 of the Constitution, which identifies the legal domains that are subject to federal regulation.

But here is the key point: Any exercise of government power--state or federal--is prohibited if it violates one of the rights-bearing provisions of the Constitution, such as those set forth in the Bill of Rights and the 14th Amendment. For example, Congress is expressly granted the authority to regulate interstate commerce. But if it enacts a statute designed to govern the national economy that also happens to restrict the freedom of speech, then the law is unconstitutional because it violates the First Amendment. The death penalty is subject to the same limitations. Application of the ultimate sanction must be consistent with not only the due process clause, as Mr. Kelley explains, but also with every other rights-bearing provision in our national charter.

One of the most important such provisions is the equal protection clause of the 14th Amendment. It requires that governments not discriminate on the basis of race, sex, and several other grounds. Unfortunately, there is considerable racial discrimination in our criminal justice system. And much research establishes that the death penalty itself is applied in racially discriminatory ways. As a result, there is a powerful argument that capital punishment--as currently applied in the United States--violates the 14th Amendment's equal protection clause.

At most, the 14th Amendment only bars capital punishment until we can expunge disparate racial treatment from our enforcement of criminal law. Does any part of the Constitution go further? In particular, might the Eighth Amendment's prohibition on cruel and unusual punishment make the death penalty unconstitutional more generally? Mr. Kelley thinks the answer is absolutely not. He relies upon Justice Scalia's argument that the framers of the Constitution could not have believed that the death penalty violates the Eighth Amendment because they wrote the Fifth Amendment, which expressly contemplates that executions will be carried out in at least some circumstances. And, Justice Scalia continued, the Eighth Amendment must be interpreted consistently with how it was understood in the late 18th century.

The problem here is that there is considerable evidence that the framers thought that the meaning of "cruel and unusual" would change with time. After all, they used the word "unusual." What is unusual is constantly evolving as governments alter the laws of punishment. It is thus quite reasonable to believe that the death penalty, as a matter of constitutional law, is now cruel and unusual, even though it was not so in 1790.

Now, I actually agree with Mr. Kelley's conclusion about executions and the Eighth Amendment: I do not think that the death penalty is unconstitutional as cruel and unusual punishment. My point here is this: there is a plausible legal argument that Mr. Kelley and I are wrong. And thus, should the Supreme Court strike down the death penalty on Eighth Amendment grounds, that will clearly not be an act of tyranny. It will, at worst, simply be a case where the Supreme Court got it wrong on a legal issue over which reasonable and fair minds can differ. And if the High Court instead uses the 14th Amendment to invalidate capital punishment temporarily, the justices will be on even firmer ground. Indeed, I think they will be right.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions in this column are his own.

Editorial on 03/19/2017

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