American Heritage winning essay: The death penalty must be found unconstitutional

People who argue that the Constitution is a “dead” document and that it should be applied today just as it was applied when originally written might also argue that we should not use electricity or computers.

The founding fathers constructed the Constitution on the foundations of Enlightenment ideals built on reason, liberty and opposition to the excesses of monarchy. The United States must continue to evolve as it strives to meet the ideals it was built upon.

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Based on our current and past understanding of the criminal justice system, we can agree the death penalty is unconstitutional. It violates the Eighth Amendment because it is a cruel and unusual form of punishment while also violating the due process clause in the Fifth and Fourteenth amendments.

The Fifth Amendment spells out that “No person shall ... be deprived of life, liberty, or property, without due process of law.” The Eighth Amendment dictates the importance of protecting individual liberties from the excessive and capricious powers of the state. Relatively short, it states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This was adapted from the English Bill of Rights (1689) that protected British citizens from excessive power of the monarchy. In the 17th and 18th centuries, cruel and unusual punishment referred to torture, including being disemboweled while alive, beheaded and quartered. Sadly, such horrors and injustices occurred regularly in the fledgeling United States because of the pervasive scourge of slavery.

Initially, arguments regarding cruel and unusual punishment focused on torture. or physically painful forms of punishment. In Weems v. United States (1910) the court expanded the definition of cruel and unusual by allowing the punishment to be compared to the offense and allowed a “wider meaning as public opinion becomes enlightened by humane justice…”

In Furman v. Georgia (1972), the Supreme Court forced states to limit the use of the death penalty and effectively placed a moratorium on carrying out the death penalty after the decision.

Four years later, in Gregg v. Georgia, Tory Gregg was found guilty of murder and armed robbery and sentenced to death. He asked the Supreme Court to rule the death penalty unconstitutional. But the court ruled Georgia had sufficiently improved its procedures for applying the death penalty, meaning the death penalty was constitutional. In Gregg, the Court looked at the process of this specific case and not at the constitutionality of the death penalty itself.

Clearly the 1976 ruling was in keeping with an “originalist” view of the Constitution. This interpretation seems myopic and does not take into account the long arc of history of the death penalty and its imperfections and disparate applications.

Unequal treatment of some people has existed in our country from the beginning. It took a devastating civil war to end slavery, but the remnant views of African Americans as inferior and undeserving of equal treatment persists.

African Americans have not received equal treatment under the law as seen from the rise of the Ku Klux Klan as an extrajudicial enforcer of racist views, to the lynchings and brutalization of entire communities through Jim Crow laws, the disenfranchisement through poll taxes and widespread segregation and discrimination across much of the country during the past century.

If the Constitution were a perfect document, racial disparities in the application of justice should be addressed through the Due Process Clause to ensure fair procedures in courts. But there remains significant variation among the 50 states in trial procedures, sentencing, and execution methods.

There are discrepancies in the application of justice when African Americans are incarcerated at more than five times the rate of whites. Although African Americans and Hispanics make up approximately 32 percent of the U.S. population, they comprised 56 percent of all incarcerated people in 2015 and 42 percent of all executions. The Fifth and Fourteenth Amendments are supposed to guarantee reliable procedures to protect innocent people, but since 1973 there have been 160 people released from death row with evidence of their innocence.

An examination of recent data from the National Registry of Exonerations points to official misconduct and perjury as the two main causes of wrongful convictions in death penalty cases. A study in California found that those convicted of killing whites were more than three times more likely to be sentenced to death than those convicted of killing blacks and four times more likely as those convicted of killing Latinos.

It is clear there are failures in both procedural and substantive due process to allow the unbalanced administration of the death penalty. Our inability to guarantee reliable procedures – as required by the Fifth and Fourteenth amendments – is a clear example of cruel and unusual punishment.

Supporters of the death penalty frequently cite its value as a deterrent to murder. However, analysis of execution data and murder rates do not support this assertion. Studies supporting such claims have been found to be “fundamentally flawed.”

The FBI Uniform Crime Report for 2016 shows the South consistently has the highest murder rate and accounts for over 80 percent of executions. Eighty percent of the country’s criminologists rejected the idea that executions lower homicide rates.

The Supreme Court’s interpretation of the Constitution has evolved with maturing standards of decency. Our changing views have caused us to transition from barbaric forms of execution (hanging, firing squad, electrocution) to more “humane” forms such as lethal injection. But several prominent cases have revealed problems even with lethal injection. In 2016, a federal court found California’s lethal injection procedures unconstitutional, essentially halting all executions.

The current arbitrary and imprecise nature of the judicial system by itself disqualifies it from imposing the death penalty because it violates the Fifth and Fourteenth amendments. Due to unequal application of the death penalty, it is a form of cruel and unusual punishment. Having violated the Fifth, Eighth and Fourteenth amendments, the death penalty is unconstitutional.

This story was originally published December 10, 2017 at 3:17 AM with the headline "American Heritage winning essay: The death penalty must be found unconstitutional."