It’s not often I can claim with a straight face to be more of a Constitutional scholar than a sitting Supreme Court Justice, but today I am doing that.
Associate Justice John Paul Stevens, who will turn 88 this weekend, says that he has changed his mind and now considers capital punishment to be unconstitutional, regardless of the offense or the circumstances of the execution.
Apparently Justice Stevens has misplaced his copy of the Constitution. In particular, the 5th Amendment of the Bill of Rights: (emphasis added)
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 lack a legal degree, but it seems to me that if the Constitution explicitly puts limits on capital punishment, then it implicitly allows it. In other words, if the Constitution says “you can’t execute someone in these circumstances,” it means that “you can if you do this.” If the Constitution wanted to absolutely ban the death penalty, then the Founding Fathers would have not carved out exceptions.
Justice Stevens seems to base his theory on the 8th Amendment, here in its entirety (emphasis added):
xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
To Justice Stevens’ reasoning (and that of many others), the death penalty is by its nature cruel and unusual, as our society has evolved to the point where “cruel and unusual” now encompasses any infliction of the death penalty, so it must go.
I beg to differ.
Justice Stevens is falling victim to the “perfection fallacy,” also known as “the perfect is the enemy of the good.” Over the centuries, our methods of executing those whom a jury has found worthy of the ultimate sanction have continually evolved, moving closer and closer to as painless as possible. And that’s a good thing — I am not the vindictive sort; as long as the guilty person is killed, I am satisfied. I have no vicious fantasies about slow, painful, exotic punishments for those who commit the most heinous deeds.
Lethal injection is, from what we understand, is pretty painless. It’s a blend of drugs that render the person unconscious, then stop their heart and breathing. But there’s no absolute guarantee that they don’t feel any pain, and that’s enough to get a lot of people to want to end that as well.
I find myself hoping that the injection is painless, but I would not be heartbroken if it wasn’t. To me, it falls well within the “close enough for government work” standard.
If people really want to abolish the death penalty, let them take it up in the several states and the United States Congress and get them to do so. Or, if they’re really ambitious, get a Constitutional amendment passed to do it all in one swell foop.
But this back-door scheming and legal wrangling and judicial rewriting of the Constitution to fit their agendas is thoroughly disgusting.