Constitutional Consideration of the Death Penalty

Ethan Yang ’20

Staff Writer

In 1535, Sir Thomas More was on trial to be executed and he was asked the following question: If the Earth was round, can the king flatten it, and if it was flat can an act of parliament make it round? 

The question was profound because it was suggesting a radical idea that there are natural and just limits on the powers of government. Start from the basic assumption that the state cannot make the world flat and logically arrive at more substantial things such as the state cannot legitimately violate your rights. Fast forward to earlier this month, Nov. 9, 2019, a large protest surrounded the governor’s mansion in Texas demanding Greg Abbott cancel the scheduled execution of Rodney Reed. Reed, an African American male, is scheduled for a lethal injection on Nov. 20 and was convicted in 1996 of raping and killing a 19 year woman named Stacy Stites. However, according to a recent report by CBS Austin “Reed has long maintained that Stites was killed by her fiance, former police officer Jimmy Fennell. Reed says Fennell was angry because Stites, who was white, was having an affair with Reed, who is black. In recent weeks, Reed’s attorneys have presented affidavits that support his claims, including one by a former prison inmate who claims Fennell bragged about killing Stites and referred to Reed by a racial slur.” Now, this is absolutely horrifying and obviously the evidence must be weighed with a steady hand. However, this also showcases the horrific reality that is the death penalty and makes the case that maybe the government shouldn’t have the power to murder its citizens. 

I think it is important to preface that the death penalty should not be abolished on the grounds of the eighth Amendment, cruel and unusual punishment. The late Supreme Court Justice Antonin Scalia explains that if we wish to interpret the Constitution based on original public meaning, the death penalty was certainly permissible at the time of the ratification of the eighth. I think it is dangerous simply to assert that we as a society have matured past the death penalty, and therefore it is unconstitutional. If that is the case, the rights of minorities are simply at the mercy of the majority. Under this logic, we can assert that the first Amendment doesn’t protect “racist” speech because we as a society are far less racist, whatever that means. Or post 9/11: the privacy rights of Muslim Americans are a hindrance to our safety therefore, they are not protected under the fourth Amendment. Rather, to abolish the death penalty, we should simply remove it with an act of legislation or even a Constitutional Amendment. This will enshrine protections against government sanctioned murder in our laws.

Even if you’re not inclined to vote against the death penalty on the grounds of morality, its practical application has been abhorrent at best. 

According to “The Balance,” in my home state of California, those sentenced to death can wait up to 20 years and in Louisiana, it cost seven times more to hold someone on death row than in minimum security. Furthermore, the most popular form of execution is lethal injection. Not only do we not fully understand if the chemicals lead to a quick and painless death, (which some would describe as the equivalent of setting your arteries on fire) but the companies that produce them are refusing to supply them. Lastly, the most horrifying statistic is the number of people exonerated from death row, that is the people found not guilty after being sentenced. According to a report by the Proceedings of the National Academy of Sciences, one in 25 death row inmates are innocent. This number can be backed up by the fact that, from 1973-2015, 156 people have been exonerated. However, that means that prior to the work of the many organizations that carry out exonerations via DNA testing, people were and still are executed for crimes they did not commit. The system is a mess and we are all paying for it with our tax dollars.

Imagine how frustrated you would feel if someone accused you of something you didn’t do. Now imagine that you now had to sit in prison for 15 years and then face an execution for a crime you didn’t commit. The mere possibility that this is possible in our criminal justice system is a disgrace and it happens far too often than it should. As a nation that values limited government and freedom, it is unjust and immoral for the state to have the jurisdiction over the very lives of its citizens. We should abolish the death penalty because the stakes of life and death is an inappropriate game to be playing in our court system.