Is capital punishment unconstitutional?

[Forever Free]

By unconstitutional, I mean under the Eighth Amendment, which prohibits the use of "cruel and unusual punishment".

My answer is no, it is NOT unconstitutional under the strictest sense. With that said, I am opposed to the death penalty. I believe that the government should use the least intrusive method of punishment in order to achieve its goal of public safety.

In this case, the least intrusive means is life imprisonment, which in this case reasonably achieves the goal of public safety while not overly infringing upon an individual's personal rights (right to life and dignity).

What are your thoughts?

[ProgressiveConn]

1. Unconstitutional.

As is us shipping anyone to any country where they can be tortured.

[retnavyliberal]

3. How is it unconstitutional?

Please give me a constitutional reference. Just because we do not like something does not make it unconstitutional.

[tinanator]

4. see #2

or do you need a simplified explanation?

[retnavyliberal]

9. Well, I suppose that I do need that.

1) I asked for a constitutional reference.
2) What politician has been convicted of murder that could be so sentenced.


On Edit. Capital Punishment has been found by the SC to not be Cruel and Unusual. Do you have any other reference is what I meant to ask.

[tinanator]

14. they also found for GW's right not to be harmed

I dont think I can trust that bunch. I do think that most of the Bush Familia and their appointees could easily be convicted of crimes such as treason, and whats the penalty there? Scarborough sure had a suspicious skating, giving it all up to spend time with the family?

[ProgressiveConn]

16. You didn't ask how the sitting supreme court ruled.

You asked if it was unconstitutional or not.

I think you should take a look at past cases in which they had determined something constitutional and as the court changed the understandings changed. See Plessy v. Ferguson.

You realize whippings as punishment was once seen as not being Cruel and Unusual right?

Just cause some people don't understand that an eye for an eye makes the whole world blind doesn't mean that it is constitutional.

[retnavyliberal]

21. I read cruel and unusual much like excessive force.

Cutting off ones foot for speeding. Life imprisonment for shoplifting. But that is just how read things. No one is about to offer me a black robe. However, as the courts have currently interpreted the Constitution, it is constitutional. This can be changed, by a different ruling or by amendment.

There is nothing that says it is unconstitutional and that is why it is a states rights issue.

[ProgressiveConn]

30. So you share the opinion that murder is acceptable when it is done

democratically. I understand your position just like I understand the segregationists and anti-abortion advocate positions. Constitution is a living document I don't want to hear any strict constructionist BS.

So how do you feel about whipping for assault? Is that cruel and unusual?

[ProgressiveConn]

5. Because murder is cruel and unusual punishment PERIOD nt

[tinanator]

2. equal protection

when was the last time a politician was executed for crimes of murder?

[Poppyseedman]

6. So you are saying that a vile pervert that rapes, mutilates and

then kills a little girl shouldn't get a needle in the arm because a politician can afford the best legal counsel money can buy?

Not buying that argument because a politician can afford better legal counsel, we should not deal with the worst dregs of society.

To protect society, some people lose the right to breath when they commit heinous crimes on innocent people, especially children.

[tinanator]

18. the dregs of society? you mean the poor, right?

oh those pesky dregs again. Is that to say there are lower forms of criminal element than lying, cheating, murdering politicians?
The children, think of the children!
May I refer you to a man named Bill Hicks, he said it first and better.
No, I certainly dont think the state deserves the ability to kill prisoners, but I do think we all have the final option of killing someone who annoys us in some vile, heinous way, and then live out our lives pondering that decision, in prison. That would seem a bit more of a deterrent to me, the idea that I might kill you for crossing some line, rather than the line of shit fed by death penalty advocates about their idea of deterrence, which has been completely disproven.
And all those innocent folks executed by a faulty system, as represented by the lucky fraction who escaped through DNA results and outside diligence? Worth it, is what I usually hear from the deep thinking advocates.

[Poppyseedman]

48. Interesting that you are linking one's status in life to

whether or not one ought to pay the ultimate penalty for committing horrible crimes. I personally could care less what you own, I care much for what crime you committed.

As for "all those (few)innocent folks executed by a faulty system" certainly was unfair and wrong, but by using that logic, todays justice system that verifies though DNA testing with almost certainty of ones guilt is all the more reason to execute the truly guilty.

I do not advocate any rush to pull the plunger, but when gone though ALL the levels of the justice system, one has to be reasonably assured the guilty is being punished.

Because we as a society made mistakes in the past, we should not rid society of the worst criminal elements whether or not their political position in life?

[tinanator]

49. you think in this era of GW and unbridled fascism

that the justice system has improved that much? Glass must be half full. Its interesting to watch moral concepts far older than our stolen country being disregarded by self possessed vengeance minded citizens who think the state has a right to kill, whether within prison walls or another countries borders. Well, I gues thats how you want your tax dollars being spent, but you still cant make a positive argument, based on facts for the death penalty. It serves no purpose as a deterrent, political prisoners are still going to be railroaded, worse than ever when Lynn Stewart is confronting such a travesty.
Mistakes will still be made, and false judgements will still be passed. What do you say afterwards, "oops"?

What part of thou shalt not kill dont you understand?
Vengeance is mine sayeth the Lord. Not yours.
cliches, but Im sure you have some of your own to comfort you in your need for state enacted murder.

[K-W]

8. That is a different issue.

That the death penalty is applied unjustly has nothing to do with whether or not the death penalty itself is constitutional.

[K-W]

7. No, but it could be.

Obviously traditionally, no, it isnt cruel or unusual. But public opinion does have bearing on such a judgement.

[New Dealer]

10. Capital Punishment Is Not Unconstitutional

First of all, "cruel and unusual punishment" can be interpreted in many ways. It could mean that capital punishment should not be allowed, or it could mean that death and some forms of torture could be allowed. That being said, I think it's best to look at the intent of the framers of the constitution. There isn't any evidence to support the claim that the framers opposed capital punishment, or else they would have made it clearly prohibited. Also, at the time public executions occured in most countries, and it would have been a radical idea to oppose capital punishment. So we can conclude beyond reasonable doubt that the framers did not oppose capital punishment. Since we know the framers intended for their to be capital punishment, it cannot be ruled unconstitutional.

Next, the "right to life, liberty, and the pursuit of happyness" is looked at as an obstacle to capital punishment. However, by that same logic, when you imprison someone for theft you are denying them of their liberty and pursuit of happyness. So, I don't think you can argue against capital punishment on this basis without arguing against imprisonment.

I don't there is anything else in the constitution that could be used as an argument, so therefore it isn't unconstitional. I am for capital punishment myself, but I think it is a legitimate position to be against it. However, I think that it should be ended through a vote in congress, not through a court decision.

[K-W]

11. The framers allowed slavery.

We should stick with precedent as long as precedent is relevant, but using centuries old mores is not wise or judicious.

It is just a judgement call that the supreme court has to make, to determine if the morals of society have shifted to the point where the death penalty is thought of in the same way the founders thought of torture.

[New Dealer]

12. Ok, good point

Still though, since a majority of Americans support the death penalty (according to polls), and since there is nothing in the Constitution that unarguably prohibits it, I don't think it should be a judicial decision.

[K-W]

13. I agree.

Until it there is something resembling a moral consensus, voters and thier representatives should be able to choose for themselves.

[Kenneth ken]

45. not a judicial decision

it requires a constitutional amendment, because the 5th amendment expressly allows for it, and so would need an amendment similar to that repealing prohibition (18th imposed prohibition, 21st repealed it)

[Massacure]

15. Slavery had to be abolished with a constitutional amendment.

I don't see the death penalty going anywhere without a constitutional amendment. It may be offensive to a large part of the population, but its not unconstitutional.

Personally, I see death as the easy way out. 23 hours in a 8x6 foot cell scares me a lot more than a quick death.

[tinanator]

19. its been banned in the past without an amendment

we can only hope it will be in the future

[New Dealer]

26. It was temporarily suspended because it lacked standards

It's never been banned before, and hopefully if it is it won't be due to a judicial decision.

[tinanator]

27. was in California

only takes a decent judge in the right position. That is asking a lot these days. There are NO valid arguments in favor of the death penalty. none.
is it or is it not constitutional? strawman tactics circumventing the real issues.

[Yupster]

17. But slavery was eliminated by

Constitutional Amendment. It was Constitutional until the Constitution was changed.

Of course the death penalty could also be made unconstitutional by Constitutional amendment. You just need 2/3rds of each House and 3/4ths of the state legislatures.

It's hard, but changing the Constitution is supposed to be hard.

[Kenneth ken]

46. see 5th amendment to bolster your argument n/t

[MazeRat7]

20. Vote: Other - the "constitution has nothing to do with it"...

Killing others, or more specifically, having the government kill others for the sake of "society" is just wrong. Slice it dice it how you want, but killing of any sentient being is wrong. End of debate.

MZr7

[retnavyliberal]

23. End of debate?

Well, why in the world didn't we call you sooner to fix this for us? /sarcasm

I have had my Grandfather murdered. I will never say you are not entitled to your opinion, nor will I every imply your opinion is invalid. Please extend myself and others the same courtesy

[MazeRat7]

32. I am sorry for your loss...

But lets not get in a pissing contest about the tragic death of relatives. I have had my own, my father to be exact.

That aside, my position remains. Killing of any sentient being, excluding issues of personal survival, is wrong. Sorry, I am not the guy to debate this with. I dont see any gray area here. I firmly believe that killing (personal or state sponsored) is wrong.

Again, I am sorry for your loss, I had mine too. But my belief is my belief hence why I say "debate over". Its not something that anyone will ever change my mind on.

MZr7

[thecai]

40. Death Penalty Not A Deterrent

The DP was designed to be a deterrent, it is not. "Tough on crime" laws have not deterred crime.
The death penalty should be abolished.

Good post, MZr7

[Kenneth ken]

44. not true

while I agree with your sentiment, the constitution does in fact allow for capital punishment under the 5th amendment, so to say, as you do "...constitution has nothing to do with it..." is factually incorrect.

see post 42

[JohnLocke]

22. As it is used now, it is unconstitutional...

However, capital punishment is not itself unconstitutional.

[retnavyliberal]

24. Could you please explain what you mean by as it is used now? n/t

[TahitiNut]

25. Yes. Here's why ...

The Constitution was written, not as a static standard, but as an adaptive and continuously contemporary standard. The Eighth Amendment is an excellent example when it employs the language "cruel and unusual punishment". Obviously, the paired standards of "cruel and unusual" must always be evaluated against contemporary norms - and that's intentional. In the recent Supreme Court decision regarding capital punishment of minors, even this Supreme Court which prides itself as 'strict constructionists' acknowledged that the contemporary standards of "cruel and unusual" had changed to the point that it was now "unusual" in the world to put children to death for crimes. I assert that the same applies to the death 'penalty'.

Our sense of what constitutes "cruel" has changed enormously in the last 200 years. In fact, it has been recently determined that many (or most?) of those killed by lethal injection experience enormous suffering. To continue to inflict a punishment after learning that such suffering is experienced (something we can confidently say wasn't known even 100 years ago) is the epitome of cruelty.

Furthermore, "capital punishment" can now be regarded as unusual. About 1/3rd of the states dont allow it and almost no other 'first world' nation permits it. Where it's legal at all, fifteen countries (including Mexico) only permit it in "exceptional" cases. That's synonymous with "unusual."

The list of countries in which it's permitted is smaller than the list of countries in which it's outlawed, 'exceptional,' or effectively non-existent.:
* Afghanistan
* Antigua and Barbuda
* Bahamas
* Bahrain
* Bangladesh
* Barbados
* Belarus
* Belize
* Botswana
* Burundi
* Cameroon
* Chad
* China (People's Republic)
* Comoros
* Congo (Democratic Republic)
* Cuba
* Dominica
* Egypt
* Equatorial Guinea
* Eritrea
* Ethiopia
* Gabon
* Ghana
* Guatemala
* Guinea
* Guyana
* India
* Indonesia
* Iran
* Iraq
* Jamaica
* Japan
* Jordan
* Kazakhstan
* Korea, North
* Korea, South
* Kuwait
* Kyrgyzstan
* Laos
* Lebanon
* Lesotho
* Liberia
* Libya
* Malawi
* Malaysia
* Mongolia
* Morocco
* Myanmar
* Nigeria
* Oman
* Pakistan
* Palestinian Authority
* Philippines
* Qatar
* Rwanda
* St. Kitts and Nevis
* St. Lucia
* St. Vincent and the Grenadines
* Saudi Arabia
* Sierra Leone
* Singapore
* Somalia
* Sudan
* Swaziland
* Syria
* Taiwan
* Tajikistan
* Tanzania
* Thailand
* Trinidad and Tobago
* Uganda
* United Arab Emirates
* United States of America
* Uzbekistan
* Vietnam
* Yemen
* Zambia
* Zimbabwe

Thus, time and civilization has caught up with the death penalty. It has become unconstitutional.

[Swamp Rat]

28. Excellent post! n/t

[not systems]

29. I'm not proud that my country is on that list...

it is basically a honor role of civil rights abusers.

No state should kill.

[New Dealer]

31. I disagree

Nothing can be unarguably defined as "cruel." One could argue that imprisonment is cruel, and one could argue that torture is not. Our standards, of course, have changed so that most people view common older forms of punishment as cruel. Nevertheless, it is still an opinion. Regarding the recent supreme court decision, it was 5-4, so there is obviously not a strong majority opinion on what is cruel.

As far as lethal injections go, I always thought they became standard because they were thought to be the most humane way of killing. I have never heard anything about the criminals suffering from it. What kind of suffering is it? If it's physical - if the drugs cause them pain in the four minutes before death - then the type of execution could be changed. If it's emotional - if they can't handle the thought of being executed - then there is no argument, as one might argue that imprisonment does serious emotional damage to criminals too, and thus should be abolished. I really would like to see an article on the damage done by lethal injections though, as I haven't heard of it before.

Finally, since most Americans support capital punishment, most Americans don't consider it cruel.

"Unusual" can also mean many things. Although no other first-world country has capital punishment, no other first world country has a murder rate near ours. I imagine that in any nation with a high murder rate their would be just as much of a demand for capital punishment.

[nonconformist]

34. Wow

That's like a Who's Who list of human rights violators and corrupt, barbaric governments.

We look so out of place on that list. Then again, we really don't. :(

Great post!

[Kenneth ken]

43. good argument for abolishing, but wrong conclusion

you're looking at the "cruel and unusual" portion of the 8th, but overlooking the 5th, which clearly allows for capital punishment.

See my post 42. :)

You can't simply say it has become unconstitutional, you need to amend the constitution to repeal the portion of the 5th that allows it.

edit: typo

[Spider Jerusalem]

47. Not to mention...

that the death penalty has been banned in almost every society with which the US could be said to be culturally and socially comparable. The ONLY advanced industrial nation that hasn't banned capital punishment, besides the US, is Japan (and the Japanese execute about 2 criminals a year, on average, not dozens, as the US). The only major democracies that allow capital punishment, besides the US and Japan, are India and South Korea.

I wouldn't be terribly surprised to see the continued application of the death penalty in the US used as grounds for economic sanctions by the EU at some point in the future.

[Jack_DeLeon]

33. No, it is neither cruel nor unusual.

I'm not consitutional scholar but I believe that clause was to prevent shit like the Spanish Inquestion and torture in general from happening in the US.

The people of those days certainly had no problem with the death penalty, and I today certainly dont either.

[tinanator]

50. you must have missed Abu Ghraib

but then maybe you are living in the middle ages?

[UdoKier]

35. Yes, taking a life is cruel and unusual.

But then again, they didn't think it was back when they drafted the Constitution...

Personally, I support the death penalty, but only in veery rare cases, like Tim McVeigh. But I think there should be an additional burden of proof for a person to be execution. No purely circumstantial cases like Scott Peterson. There needs to be some very conclusive proof, in addition to an extraordinarily heinous crime.

It should be rare, and we should be DAMN sure, because you cannot "un-execute" someone if exonerating evidence is found.

[deadcenter]

36. had to go yes

but, not for the cruel and unusual, sorry but I think there are some people that just don't belong in the gene pool.

I fall into the no longer equal protection under the law camp. Not by race, but by money. If you have enough money, you get a good lawyer, you get psych experts, you get delays out the wazoo so that the jury pool has time to forget exactly what you did until it's brought up at trial, you get jury selection consultants, you get nice hair cuts and tailored suits, and more consusltants to teach you how to act sympathetic.

If you're poor, hell, if you're not rich, you get court appointed attorney, you don't get delays and continuances, you don't get consultants out the wazoo. You get a speedy trial with the details of your crime much fresher in the minds of prospective juries, you get a rudimentary jury selection, if you're lucky you show up to court in a suit, if not, in your prison uniform.

Example, the Menendez brothers. 10+ million in the bank. Shot their "allegedly" abusive parents with shotguns so many times they had to reload. Verdict? Life in prison.

Take the same circumstances but make the defendant some poor white guy from the wrong side of town. Verdict? Death.

Sorry, but that ain't equal protection under the law in my opinion.

deadcenter

[Lexingtonian]

37. yes, unconstitutional

"I brought a rough draft of the memorandum I was working on to the meeting, but Justice Brennan did not want to look at it. He asked me to describe the results of my research to him, promising to read the memorandum later. I stated the nascent constitutional case against the death penalty as best I could. I told him that the Supreme Court case law, especially the Court's 1910 decision in Weems v. United States, could be read as recognizing the following tests for whether a punishment was "cruel and unusual": (1) giving full weight to reasonable legislative findings, a punishment is cruel and unusual if a less severe one can as effectively achieve the permissible ends of punishment (that is, deterrence, isolation, rehabilitation, or whatever the contemporary society considers the permissible objectives of punishment). (2) Regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if it offends the contemporary sense of decency (for example, torture). (3) Regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if the evil it produces is disproportionately higher than the harm it seeks to prevent (for example, the death penalty for economic crimes).
"In addition to these abstract formulations, I also told Justice Brennan that our research had disclosed a widespread pattern of unequal application of the death penalty on racial grounds. I cited national prison statistics showing that between 1937 and 1951, 233 blacks were executed for rape in the United States, while only 26 whites were executed for that crime."

Alan M. Dershowitz, "The Death Penalty in the Court: How It All Began", in "Reason and Passion: Justice Brennan's enduring Influence" (1997) (event is set in 1963)

"One area of Supreme Court law more than any other besmirches the constitutional vision of human dignity. My old friend and colleague Harry Blackmun called it the "machinery of death": It is the death penalty.
"<....>
"Yet the ultimate problem is more fundamental. I have long believed that the death penalty is in all circumstances a barbaric and inhuman punishment that violates our Constitution. Even the most vile murderer does not release the state from its constitutional obligation to respect human dignity, for the state does not honor the victim by emulating the murderer who took his life. The fatal infirmity of capital punishment is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded."

William J. Brennan Jr., "My Life on the Court", ibid.

My personal reason for opposing the d.p. is that in its perpetration it is always in fact a religious ceremony, a ritual murder, in which an theology of Death is asserted and an idolatry of Death committed in the performance/worshipping. I can't reconcile that with any religion I know and respect.

[thecai]

38. Over 20,000 Americans Wrongfully Convicted

EACH YEAR in The U.S. That is only the CONFIRMED cases. That does not include the inmates that are denied appeals (MOST are!), or denied proper investigations or DNA testing, and denied justice due to lack of funds.
Our judicial system is far too faulty to depend upon for justice.
Abolish the death penalty NOW!

[d_b]

39. A famous linguist once said

"The death penalty can be tolerated only by extreme statist reactionaries who demand a state that is so powerful that it has the right to kill."

[not systems]

41. Exactly.

No state should kill.

[Kenneth ken]

42. No

see the 5th amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

I do NOT support the death penalty, but the 5th does allow for it ( and also for chopping off limbs :scared: )

Chopping off limbs presumably conflicts with the "cruel" portion "cruel and unusual" in the 8th, so I guess I should read up on this topic in the Federalist papers and see if I can get clarification from the founders.