Discussion for article #237985
The Constitution is not the only source of law. If the death penalty violates fundamental human rights it should go.
So many executions have gone wrong lately because the lethal injections didn’t work and the prisoner suffered until he died, and it shows that the death penalty violates the Constitutional prohibition on “cruel and unusual punishment.” What is more just, IMO, is for the prisoner to receive a sentence of life in prison without parole, and that would apply to the Boston bomber whose death sentence will be appealed for years while the families are left to relive the agony of that day…
It is in this country. But that being said, the interpretation of “cruel and unusual” is still open to debate in a lot of people’s minds, including apparently two Supremes.
The problem is that the country isn’t really deeply divided on this issue. There are pretty solid majorities in both parties supporting the death penalty. So until that happens and starts forcing the issue at the state level, I really don’t see the SCOTUS redefining cruel and unusual.
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First off, any consideration of the victims really doesn’t have a place in the debate on capital punishment, in my mind. I know that is very unpopular but one needs to understand that in our form of jurisprudence, crimes are not committed against the individual, they are committed against the State.
Justice is not revenge, which is very key in understanding the death penalty (which is revenge killing by the state), and introducing the pain and suffering of the victims families just clouds that point. (What was in Gandalf said? Many who died deserved to live, and until you grant them that, don’t be so quick to say someone living deserves to die).
Nor should the amount of appeals that a convict submits be part of the discussion. After all, we are talking about the ultimate loss here, and there are no mulligans, so I don’t really think there is any amount of Due Process that is too much.
The people I know who are in favor of the death penalty regard it as revenge. The arguments that the death penalty is not a deterrent is not what they want hear, nor do they want to hear how costly is it is to appeal the death penalty for so many years when lockup in prison for his natural life is punishment as well. I for one cannot help but think of the victims as they watch an appeal process play out for years to come, and I will continue to do so. If there is such a thing as closure, and I’m not sure there is, the families never receive it while they watch “justice” being served. .
Justice Stephen Breyer broke new ground in a dissent joined by Justice Ruth Bader Ginsburg, writing that it was “highly likely” that capital punishment as a whole violated the Constitution’s ban on cruel and unusual punishment.
I’m no supporter of the death penalty, but there is this pesky Fifth Amendment:
Amendment V
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 offense 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.
The Amendment says you can’t be deprived of life “without due process of law.” That would suggest that with due process of law, you can, indeed, be deprived of life. That, in my layman’s assessment, suggests that the death penalty, while not necessarily desirable, is probably Constitutional.
That’s a good argument. However, there is another way to look at it. Once the life has been taken, due-process of law which might show new evidence exonerating the suspect would become nullified by the absolute act of extinguishing that life. As such, executions terminate ongoing due-process of law, which could be considered unconstitutional.
No, the Constitution is not the only source of law in the US. There is common law, treaties and basic decency. The Constitution is a floor, not a ceiling. The US send young people to other countries to die too promote basic human rights, so those ought to apply at home. The Declaration of Independence says rights derive from basic human nature, not paper.
In America you will find many self-proclaimed “Christians” who are against abortion but for capital punishment. They can not or will not see the inconsistency.
Common law is basically laws based upon long standing precedents…and in this country, that means long standing constitutional precedents. The legality of treaties also springs from the Constitution. Basic decency being something that is the eye of the beholder, really isn’t a basis for law…thank goodness. (I can easily see some RW nutcase being carried away with a bloody knife lying on the ground next to the gay couple he killed babbling “It was basic decency to end their lives!”).
As far as the US sending people to die in other countries (I am assuming you are referring to wars fought overseas?), I am not sure how that applies to the question of the Constitution being the basis of law in this country or not.
The Declaration of Independence is not a legal document. It was a declaration of war against England while we were still her colonies so…a declaration of independence and and intent to setup a nation. And while it is very well written, its basically a list of grievances and disagreements with the Crown, NOT a document proscribing how laws should be formed, a country organized and its leaders chosen.
Scalia seems to be attacking other justices in his opinions and dissents. Isn’t that something justices have normally carefully avoided? If so, then his sense of decorum is really breaking down. Maybe he needs to lay off the conservative talk radio.