Is the Death Penalty Unconstitutional?

Dissenters to a denied emergency appeal argue it is.

FILE – In this Oct. 31 1997, file photo, Daniel Lewis Lee waits for his arraignment hearing for murder in the Pope County Detention Center in Russellville, Ark. On Tuesday, July 7, 2020, family members of the victims of Lee, who is scheduled to be put to death next week, asked a federal judge to delay his execution, saying the coronavirus pandemic puts them at risk if they travel to attend it. (Dan Pierce/The Courier via AP, File)

The US Supreme Court has allowed the first federal execution in years to go forward. The dissenters argue that it’s time to rule capital punishment to be cruel and unusual punishment.

CNN (“Supreme Court rules federal execution can proceed for Daniel Lewis Lee“):

The Supreme Court cleared the way for the resumption of the federal death penalty, in an unsigned order released after 2 a.m. ET Tuesday.

The court wiped away a lower court order temporarily blocking the execution of convicted killer Daniel Lewis Lee in a 5-4 vote.

Lee, a one-time white supremacist who killed a family of three, was scheduled to be executed Monday in what would have been the first federal execution in 17 years. On Monday, a federal judge blocked the planned execution of Lee, and three others, citing ongoing challenges to the federal government’s lethal injection protocol.

[…]

The Supreme Court said that the death row inmates, including Lee, bringing the case “have not established that they are likely to succeed” in their challenge in part because the one drug protocol proposed by the government — single dose pentobarbital — has become a ‘mainstay’ of state executions.”

The ruling is as one would expect; the decision was per curium, which means it’s unsigned and ostensibly unanimous. In reality, it was just the five conservatives, who reasoned that the drug in question:

  • Has been adopted by five of the small number of States that currently implement the death penalty.
  • Has been used to carry out over 100 executions, without incident.
  • Has been repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection protocols of other jurisdictions.
  • Was upheld by this Court last year, as applied to a prisoner with a unique medical condition that could only have increased any baseline risk of pain associated with pentobarbital as a general matter. See Bucklew, 587 U. S. _.
  • Has been upheld by numerous Courts of Appeals against Eighth Amendment challenges similar to the one presented here. See, e.g., Whitaker v. Collier, 862 F. 3d 490 (CA5 2017); Zink v. Lombardi, 783 F. 3d 1089 (CA8 2015); Gissendaner v. Commissioner, 779 F. 3d 1275 (CA11 2015).

As emergency appeals go, this would seem to have been pro forma. But not so much.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg reiterated in one dissent something he has said before: he thinks it’s time for the court to revisit the constitutionality of the death penalty.”

The resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution,” he said.

Justice Sonia Sotomayor, joined by Justice Elena Kagan and Ginsburg wrote separately to criticize the court’s “accelerated decision making.”

“The court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections,” she said.

I have little sympathy for Sotomayor’s complaint. It’s absurd that slam dunk cases like this—there’s simply no question of Lee’s guilt—are allowed to wind their way through endless appeals, with the US Supreme Court ultimately having to weigh in at least once on every single one of them.

Breyer’s dissent is more interesting if less than novel. Several liberal justices were arguing that capital punishment was per se unconstitutional as early as the 1960s. And there was a four year period from 1972 to 1976 when that view prevailed.

The interpretation of the Eighth Amendment’s admonition that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” may be the best example of where textualism and original intent fail as tools for Constitutional interpretation. While I’m sympathetic to both as starting points, words like “cruel” and “excessive” are inherently subjective. And originalism would be absurd in this instance, allowing any practice that was in place in 1791 (when the amendment went into effect) and making advances suspect.

In the case of that particular clause, then, just about everyone demurs to a living Constitution. Cruelty, excessiveness, and unusualness are moving targets that require judges to, well, apply their judgment.

In most instances, then, the per curiam opinion’s pointing to “the small number of States that currently implement the death penalty” would actually been seen as evidence on the side of Breyer’s dissent. The death penalty has become unusual outside of a handful of states precisely because a consensus has emerged that its implementation is arbitrary and capricious. Even if we set aside the fact that we sentence too many people to die who aren’t guilty of the particular offense in question, we’ve long known the black and indigent defendants are far more likely to be slated for capital punishment than others for the same offense.

But, in the particular case of the death penalty, defenders have a trump card: the Constitution would seem to particularly allow it. Repeatedly.

The Fifth Amendment, proposed and ratified along with the Eighth as part of the Bill of Rights, provides that, “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.”

The same people who prohibited cruel and unusual punishment, then, contemplated capital crimes and people being put in jeopardy of and, indeed, deprived of, their life.

Further, the Fourteenth Amendment, passed in 1868 as the middle of three amendments in the aftermath of the Civil War to free the slaves and elevate them to full citizenship, provided “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, to the extent the Eight Amendment somehow prohibited capital punishment, it would be superceded, at least at the State level, by the Fourteenth.

It seems obvious to me, then, that while society may have come to the consensus that executing criminals is barbaric (it actually hasn’t; indeed, it’s more popular now than it was in the 1950s, 1960s, and early 1970s) states outside that consensus are not barred by the Constitution from doing it.

A Democratic Congress could pass a law ending capital punishment next January and President Biden could sign it into law. He could also commute the sentences of any federal criminal on death row to life in prison. But, of course, a Republican Congress and President could come in down the road and renew the death penalty; the commutations would be irreversible.

Congress has no authority to ban states from executing those convicted of capital crimes. But they could, I suppose, force states to ban it by tying it to funding. (That’s how, for example, they forced a 55 mile per hour speed limit and a 21-year-old drinking age.)

Aside from simply ignoring the Fifth and Fourteenth Amendments, the Supreme Court could simply rule any given protocol for carrying out executions unconstitutional. That’s what the narrow majority did in Furman back in 1972. (They also, rather oddly, essentially wrote new laws that would be Constitutional, which were promptly passed by a flurry of states. And generated a surge in the popularity of capital punishment.)

UPDATE: Lee was executed this morning.

Daniel Lewis Lee, a convicted killer, was executed Tuesday morning in the first federal execution in 17 years after the Supreme Court issued an overnight ruling that it could proceed.

Lee was pronounced dead by the coroner at 8:07 a.m. ET in Terrre Haute, Indiana. His last words were “I didn’t do it. I’ve made a lot of mistakes in my life but I’m not a murderer. You’re killing an innocent man,” according to a pool report.

He was not an innocent man. But his case does illustrate the vagaries of capital punishment:

G. Thomas Eisele, the federal judge who presided over the case, conceded that he had often questioned his work during the combined trial, lamenting that Lee’s co-defendant, Chevie Kehoe, was ”more culpable” yet was spared by the jury and sentenced to life in prison. 

“I frequently have second-guessed my own decisions in this case and wondered what, if anything, I could have done differently that might have resulted in a more rational outcome,” Eisele, then 91 and retired, wrote in 2014. “I have no doubt that all involved did the best they could at the time with the knowledge that they had. Still, the end result leaves me with the firm conviction that justice was not served in this particular case, solely with regard to the sentence of death imposed on Daniel Lewis Lee.”

The years of unease have not been solely Eisele’s burden, despite his death three years ago. Dan Stripling, the lead prosecutor in the case, also has written about the arbitrary nature of the sentences returned against Lee and Kehoe, whose victims included an 8-year-old girl.

The loudest voices, however, belong to the victims’ closest family members, who don’t doubt Lee’s involvement, but maintain that it would be “unfair” to execute the 47-year-old once-avowed white supremacist while the undisputed ringleader serves a life sentence.

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FILED UNDER: Eighth Amendment, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. de stijl says:

    Most of the West forgoes it.

    For it? China, Russia, Saudi Arabia. And us.

    It is barbaric.

    We have screwed up incarceration so poorly. Imprison people at rates that are astronomically out of line with our global neighbors it is crazy.

    We are wrong. It is way past time to admit that.

    12
  2. Sleeping Dog says:

    The death penalty is an act of retribution and it doesn’t have any effect in reducing the murder rate. The state, should not be in the business of retribution.

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  3. HarvardLaw92 says:

    That’s an unavoidably subjective morass of opinions, but speaking for my own – yes.

    The degree to which we’ve gotten convictions wrong in the past highlights the folly of imposing a penalty for which there can be no reconsideration or recompense via a flawed system. It requires a standard of proof of guilt extending beyond reasonable doubt to unimpeachable surety of guilt. We cannot satisfy that standard under any reasonable conditions, ergo to impose death as the result of a flawed system of proof is the definition of cruel and unusual.

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  4. de stijl says:

    We can choose not to do it. Then constitutionality is moot.

    3
  5. An Interested Party says:

    It’s been proven that innocent people have been on death row…how can we continue this practice when it allows for people to be put to death for crimes they did not commit…

    5
  6. OzarkHillbilly says:

    It is long past time we moved on. There are countless reasons for doing away with the death penalty. The only argument I know of in favor of it is bloodlust.

    4
  7. Kathy says:

    @de stijl:

    You know, I’ve been thinking about the raft of revolutions and independence movements that followed the US Revolution. One major difference between the US and the countries in Latin America and the Caribbean who followed, was that the latter made very strong, very persistent efforts to outlaw slavery, while the Americans made efforts to keep it*.

    We see the same thing now in regard to capital punishment. Most countries in the West have eliminated it, while America clings to it.

    * To be fair, not in the whole country. Slavery pretty much ended in the north shortly after independence (unequal treatment is another story, one that continues to this day). But the north compromised in many ways to allow the south to maintain slavery.

    [While I agree that the parallels are interesting, I don’t want this thread to devolve into a discussion about slavery. – jhj]

    2
  8. ptfe says:

    More to the point here, the contemplation of and explicit inclusion of the death penalty in the Constitution does not make it de facto a Constitutionally-approved punishment. Language providing for the possibility does not speak to its validity under other Amendments, only to its possible acceptability under those particular Amendments. So, for example, the Third Amendment doesn’t establish a standing US military.

    Regardless, as a society, we continue to embrace a scientifically repudiated 18th-century model for crime and punishment. The prison system does not serve the purposes it was originally supposed to, because it wasn’t designed well. It’s punitive and vengeful, and even though we use flowery words like reform and rehabilitation, the system labels everyone in it a “criminal”, suggesting that they are damaged goods. There’s no attempt made to restore the person to society at large – quite the opposite, since the whole point of prison is to fully cleave the person from society until they’ve…what? learned their lesson? We have centuries of evidence that prisons do nothing helpful for about 99% of those convicted of crimes, yet we use them in a majority of cases.

    And the death penalty is the extreme end of this damage. It terrorizes the victim (and there is a victim). It wastes resources. It’s used disproportionately against minorities. It’s applied to people who are not actually guilty. It makes every citizen culpable in a state-sanctioned killing. And it has historically been used as a weapon of terror against whole communities (Black and Native American in particular) to enforce state racism.

    We’re about 50 years past the time when it should have been abolished.

    6
  9. James Joyner says:

    @ptfe:

    language providing for the possibility does not speak to its validity under other Amendments, only to its possible acceptability under those particular Amendments.

    It’s hard to come up with an argument for one amendment in the Bill of Rights, both proposed and adopted simultaneously, canceling out the other. It’s just absurd to argue that the 8th Amendment, passed in 1791, cancels out the 14th, passed nearly a century later.

    @ptfe:

    We’re about 50 years past the time when it should have been abolished.

    That’s probably right. We understood by 1970 that it was applied capriciously. We passed new laws by 1976 that tried to correct the error but, by now, it should be obvious that there’s no way to apply it fairly.

    That doesn’t make it unconstitutional, though. It just makes it bad policy.

    7
  10. drj says:

    @James Joyner:

    It’s just absurd to argue that the 8th Amendment, passed in 1791, cancels out the 14th, passed nearly a century later.

    Nope.

    Because (your words):

    originalism would be absurd in this instance

    And thus, we’re left with:

    “We shall never do X” and

    “If we do X, it has to happen in this particular way”

    It’s not hard to figure out which statement takes legal precedence. The absolute trumps the conditional.

    2
  11. ptfe says:

    @James Joyner: “It’s just absurd to argue that the 8th Amendment, passed in 1791, cancels out the 14th, passed nearly a century later.”

    It’s not cancelling at all. 8A simply applies more narrowly to a specific question. The 14th Amendment is a broadening of the entire legal structure to apply to additional people, not in conflict with the 8th. So 8A says “excessive bail shall not be required”, but the 14th doesn’t: That’s not to say that by the time of 14A nobody thought bail existed; they just used 14A to say that it already applied. And 14A explicitly refers to equal protection, which suggests that protections are provided for that are not handled by 14A – notably, protections offered by existing law and Amendments.

    It doesn’t seem like the inclusion of “life” in those Amendments provides that the death penalty must be a possibility and is not proscribed by the language of other Amendments. The argument is really pretty easy: imagine 14A says “All persons and unicorns…” – the added language applies to nothing at all, but it’s legally (and mathematically!) consistent. It also wouldn’t will unicorns into existence. From the other side, we may as a society also deem excessive bail “cruel”, but 8A calling it out would not excuse it from that label; if we passed an Amendment to strike the “excessive bail” language from 8A, it could still remain proscribed by the “cruel and unusual” language. The language of “cruel and unusual” is clearly in charge here if it’s more restrictive than everything else that’s listed.

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  12. James Joyner says:

    @ptfe: I don’t think any honest reading of the 14th Amendment would deny that, pursuant to due process of law, states may deprive people of life. Ipso facto, capital punishment is not per se unconstitutional.

    Now, that obviously doesn’t end things. The Supreme Court has essentially (and maybe actually; it’s been a while since I’ve revisited the case law) ruled that death is an excessive punishment for any crimes short of aggravated murder. That clearly wasn’t the case in 1868, when we were routinely hanging rapists and even horse thieves.

    While Brennan and Marshall were claiming execution was per se cruel, the narrow (5-4) majority in Furman simply settled on structural arguments. I suspect that, if we ban it via the courts, we’ll basically say it’s technically Constitutional but set the bar so high as to make it impractical to execute anyone.

    My preference would simply to abolish it by democratic action. But that’s unlikely to happen any time soon in Texas, much less Alabama and Mississippi.

    1
  13. Gustopher says:

    On Tuesday, July 7, 2020, family members of the victims of Lee, who is scheduled to be put to death next week, asked a federal judge to delay his execution, saying the coronavirus pandemic puts them at risk if they travel to attend it.

    Um. Wow. I don’t want to criticize people for how they handle grief and mourning, and I’m pleased they are taking covid seriously, but… wow. Also, that is very 2020.

    1
  14. Michael Reynolds says:

    I have no opinion on the constitutionality, that’s well outside my wheelhouse.

    But as per @HL92 above, it’s inexcusable practice in view of past errors and it subverts the very notion of justice to continue to execute people who are only probably guilty.

    I don’t have any pity for this particular asshole, or most of the vicious assholes we end up executing, but the death penalty is only partly about them, it’s as much about us, about what kind of civilization we have. It’s never a good look when you’re on a list with Saudi Arabia, Iran and China.

    4
  15. Gustopher says:

    The death penalty is clearly constitutional.

    The death penalty as currently implemented? The racial biases likely violate the equal protection clause (even an originalist interpretation should balk at that — right after the civil war, the authors of the 14th amendment would have frowned upon a judicial system that regularly killed Blacks but seldom Whites), and the new methods of execution may constitute cruel and unusual punishment (injecting them with so much morphine that they bliss out would be fine, but experimental concoctions that leave them screaming — not so much).

  16. DrDaveT says:

    @HarvardLaw92:

    The degree to which we’ve gotten convictions wrong in the past highlights the folly of imposing a penalty for which there can be no reconsideration or recompense via a flawed system. It requires a standard of proof of guilt extending beyond reasonable doubt to unimpeachable surety of guilt.

    This is the only argument against the death penalty worth discussing at this point in time, and it is conclusive.

    We cannot satisfy that standard under any reasonable conditions, ergo to impose death as the result of a flawed system of proof is the definition of cruel and unusual.

    I don’t see how it is necessarily either cruel or unusual. If we could achieve absolutely certainty of guilt, I would be content to eliminate the Ted Bundys of the world, rather than paying to feed and house and guard them for years. But as you note, we can’t — and if we could, we wouldn’t apply it equitably anyway. That is more than enough grounds to eliminate capital punishment for the foreseeable future.

    1
  17. de stijl says:

    @Gustopher:

    In the GOT universe Ned Stark was honor bound to do the killing. If he sentenced someone to death then did it.

    We should think about that. We execute abstractly. Co-opt prison guards. Use drugs. PC nonsense!

    If DA x thinks Defendant y should be killed, DA x and the mayor and the governor should be there. Rifle on shoulder. No some of you have blanks, but we will never share bullshit.

    If you want the state to kill someone make the state do it. In person. Blood will flow because you willed it. If federal, President has to be a direct actor.

    This abstracted nonsense is fucking lame. You said it should happen so you do it.

    1
  18. PJ says:

    Trump really wanted to have someone executed, so here we are.

  19. Pylon says:

    @de stijl: plus there should be personal liability for executions that turn out to be wrongful. That would make “reasonable doubt” a lot more real.

    3
  20. mattbernius says:

    @Michael Reynolds:

    I don’t have any pity for this particular asshole, or most of the vicious assholes we end up executing, but the death penalty is only partly about them, it’s as much about us, about what kind of civilization we have.

    I just wanted to give this a big +1. From a policy perspective we should NEVER be basing our behaviors on factors like “what about the vicious asshole/criminal/murderer/rapist/etc.” It’s what has led us to our current crisis of mass-incarceration and over-criminalization (not to mention over-sentencing). And it’s also what makes any attempt to reform the system so difficult.

    It also leads us to excessive policing, and the rush to look an an individual’s criminal history to justify any violence visited upon them by the police.

    3
  21. Kathy says:

    This quote from a Pat Benatar Song, Too Long a Soldier, seems appropriate: I’ve seen so much worth dying for, so little worth killing over.

  22. Bill says:

    Lee was executed.

    Curiously I played a correspondence chess game against against the last person prior to Lee to be executed by the federal government, Louis Jones.

    For those of you keeping track at home, Playing the white pieces of a Nimzo-Indian defense I checkmated Jones in 21 moves.

    For a small sample of my chess playing, here is my ‘Waltzing Matilda‘ game.

  23. grumpy realist says:

    I’d be in favour of the death penalty if we were certain that a) we don’t apply the rules differently to people of different races, and b) we were sure we hadn’t made a mistake due to faked testimony, corruption, etc.

    Since we’re not in such a situation, life imprisonment seems to be the strictest we should allow. At least it’s somewhat reversible. (And I mean “actual life imprisonment” for the worst. None of this “life imprisonment == 20 years and then parole.” )

  24. Northerner says:

    I always find it “interesting” that small gov’t conservatives are so often (but admittedly not always) for the death penalty. Isn’t taking a citizen’s life the biggest a government can make — ie the death penalty is the ultimate stage of big gov’t.

    Its an irreversible process. If an innocent person is executed there’s no way back. And like all government (and every other type of organization’s) activities, there’s always the possibility of error, human or systematic. That alone should be enough to get conservatives (and everyone else) to be against it.

    1
  25. DrDaveT says:

    @Northerner:

    I always find it “interesting” that small gov’t conservatives are so often (but admittedly not always) for the death penalty.

    Indeed. It becomes clear that “big” and “small” are euphemisms, meant to obscure which attributes of government they really favor or disdain.

    1
  26. James Joyner says:

    @Northerner: @DrDaveT: The argument for small government was always about scope. The short version was that the Federal government should basically provide courts and a military with practically everything else left up to the states. The death penalty is not in opposition to that viewpoint.

    There were always conservatives, especially Catholics, who opposed the death penalty on moral or uncertainty grounds. But most conservatives are pro “law and order.”

  27. Northerner says:

    @James Joyner:

    Perhaps in academic circles it was about scope, but in public discourse its always been about size — hence the term “small government conservatives” rather than “limited government conservatives”.

    Moreover, in terms of the death penalty, you have (mainly conservatives but not all conservatives) people saying the government is inefficient and can’t be trusted to do relatively reversible and inconsequential things like regulation who think the government magically becomes infallible when it comes to the death penalty, an absolutely irreversible action of the highest consequence.

    1
  28. DrDaveT says:

    @James Joyner:

    The argument for small government was always about scope.

    Sure. Just like the Civil War was always about States’ Rights.

    The argument for small government was always about scope, until the scope argument would have cut the wrong way. At which point it was about something else. We learned from Justice Scalia exactly what the argument was really about.