The Constitution, the Death Penalty and the Vicissitudes of Justice

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The death penalty. According to Amnesty International, 106 countries ban the death penalty, 8 allow it for war crimes, 28 allow it but have not killed a person in ten years and 56 retain active death penalty laws.

Globally, China is the master executioner, using the death penalty each year to kill thousands (the actual figure is unknown- it’s China). Iran is a few laps behind China with 250+ deaths and Saudi Arabia a distant third place, killing 184 people in 2019. Shocking? Yes, especially because only Iraq and Egypt finish ahead of #6, the United States of America.

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In the USA, the death penalty is legal in 28 states, and lethal injection is the execution method of choice. However disturbing, lethal injection is far more humane than methods used in the past like electrocution, hanging, gas and firing squads.

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At the federal level there has been a moratorium since 2003 on executing criminals on death row accused of federal crimes. After a 17 year hiatus, Trump re-instituted federal executions, sanctioning the death of 8 inmates after convictions, appeals and prevention efforts. Brandon Bernard was the ninth. His case is controversial because it was a Texas crime but the murder occurred on federal land, thus making the case a federal one. He was 18 at the time of the crime. His age was one lever in his defense of the murder of youth ministers Stacie and Todd Bagley. The argument in some states today is that 18 is an arbitrary number because if a teen commits murder at 17 and 11 months, they are technically juveniles and protected from execution and life in prison. The Supreme Court in Roper v. Simmons (2005) ruled it unconstitutional to execute murderers who were under 18 in violation of the Eighth Amendment. The court stated only two nations in the world allowed such executions — the United States and Somalia. Ironically, the kid who is 18 and 1 day who commits a violent crime is subject to a completely different set of laws that are much more punitive and harsh.

This same arbitrariness in the law is evident in abortion law, rape and incest law and sexual consent laws. California just passed a law that allows judges to determine if an adult has to register as a sex offender for having oral or anal sex with a minor. Age of consent in California remains 18 despite this new twist. Driving and alcohol laws reflect the arbitrary nature of age-based legal codes as well. Some argue the legal age to drive should be 21 and the drinking age 16, the inverse of what is currently legal.

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The federal government’s right to apply the death penalty is rooted in the 8th, 5th and 14th Amendments. “The Eighth Amendment is the most famous, with its injunction against inflicting “cruel and unusual punishments.” The Fifth Amendment also provides textual support for lethal punishment. No person, it reads, shall be “deprived of life, liberty, or property, without due process of law.” That means the government may in fact deprive you of your life, but only after you’ve been properly charged, tried, convicted, and sentenced to death … the 14th Amendment’s Due Process Clause applied that safeguard against the states.”

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Capital punishment has been exhaustively debated, and one of the problems (in addition to the moral question) is that 54% of men on death row (over 3000) are men of color. Moreover, the state level shift to privatize prisons has created huge controversy as prisoners- predominantly men of color in the general prison population- can be employed by private companies at low costs. A great book on this is titled The New Jim Crow: Mass Incarcerations in the Age of Colorblindness. A key issue at the federal prison level is drug incarceration. Many men of color are imprisoned due to arbitrary drug laws. For example, possession of a cube of Crack can lead to harsh state penalties, and if considered trafficking (literally an ounce/28 grams), it can lead to federal prison for a number of years. The legalization of drugs at the federal level is one of the quickest remedies for addressing this problem. BUT, few support this idea despite the fabulous argument for it by conservative intellectual giant William F. Buckley, Jr. back in the nineties.

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BUT, violent crimes carry different legal weight. Our nation does not operate along the lines of Hammurabi’s Law Code, but it does respond to crime inconsistently. Bernard was convicted of murder at 18. He was put to death for that crime. Trump reinstated federal executions, a system that has existed for many, many years, but the legal system failed Bernard, not Trump. Either by political fiat or state political processes (or a constitutional amendment that takes too long and will never happen), capital punishment can end. But, anti-abortion activists use the same 14th Amendment argument to support pro-life that ROE used to advocate for abortion rights. So, a moral conundrum is at the heart of what is fundamentally an ethics rather than justice question, whether death penalty or abortion debates. Ethics shape law, and ethics are dynamic.

And, ethical debates are way different than legal ones. Moreover, the law is riddled with problems. Look today at the lack of enforcement of law and then the arbitrary and precarious application of it. If only it were black and white rather than a complex shade of grey.

In a world of compartmentalized politics, morality and religion, Americans constantly shift their ideas about justice, and the law must protect and preserve the rights of citizens while keeping up with a culture in the throws of radical changes (COVID has tested civil rights in an unprecedented way). This is a constant push/pull, and ahistorical understandings of the past often shape modern action, leaving new frontiers of discrimination and injustice in the wake.

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