Death Penalty: Is It Constitutional?

There are many ways to look at the death penalty issue, but given the constitutional theme that is used in other essays found on this site, I think looking at it through the prism of the US Constitution will work pretty well. A constitutional discussion of the death penalty generally can be divided into two parts: the fairness of the procedure used to carry out the death penalty ( "due process" concerns) and the soundness of the penalty itself (in certain situations or as a whole). The courts and society as a whole supports the death penalty (some polls put such support as high as seventy percent), so the due process approach is the most useful in attacking the death penalty, especially in certain instances. After all, support for the penalty does not mean the public (and all those involved in carrying it out) have some (legitimate) fears it is being carried out unfairly. Nonetheless, there also is some doubt about executing people at all, doubt increased if the people feel there is some other way to carry out the purposes behind such an execution. Therefore, this opposition to the penalty is always an important underlying factor in the process, as well as being an ultimate goal for death penalty opponents.

The Constitution, as well as basic moral practice, holds that the state cannot take away our life, liberty, or property (in that order of significance) unfairly (see the Fifth and Fourteenth Amendments). It sets up the requirement that various procedures be put into place to insure that any such deprivation will not happen. Actually, its philosophy is that it is better that some people whom might deserve to be so deprived escape to insure that a person is not wrongly deprived. Our liberty is so precious in this nation that we should have various procedures in place, even if it will make it somewhat harder to uphold the law and prosecute people.

The protections set up are fairly familiar provisions such as prevention of illegal searches and seizures, a right to be considered innocent to proven guilty, the right to a competent lawyer, an impartial jury, witnesses in your defense, and an overall right to a fair trial. Furthermore, an overriding theme is the importance of equality, that is, everyone should be treated equally with inequality by race of special concern. Also, some protections such as the right to a lawyer if you can not afford one are in place to help further equality, though obviously they are not totally successful. Exhibit One: OJ Simpson's "dream" team versus a typical defendant's representation. If such due process protections are not upheld, not only are the defendants likely to be getting inferior protection than some others receive, there is a greater chance they are losing their liberty unjustly.

The basic argument against the death penalty on due process grounds is that the procedure on the whole is too full with problems to be considered fair. An important factor in this argument is that "death is different," so the procedure in death penalty cases requires a higher standard than any other punishment. The Supreme Court has agreed with this concept (up to a point), since it realizes that the taking of life is much more serious than taking liberty. Not only is life more precious, once taken, it cannot presently be given back. The Constitution itself takes notice of this by requiring grand jury involvement for "capital crimes" (Fifth Amendment) as well as specifically banning double jeopardy for threats of "life and limb" (both which cannot be returned, unlike property). Also, the order of "life, liberty, and property" is clearly significant. Finally, "life" is basic to protection of constitutional and human rights, so deprivation of it is uniquely powerful and therefore uniquely worthy of extreme care.

The people as a whole agree with this heightened standard, as shown by the relatively small amount of death sentences given, even when juries fully accept the guilt of the accused, guilt of crimes the state has held to warrant the death penalty. The courts also accept this, courts full of judges appointed (or in some cases directly voted in) by governors or presidents voted by these same people. The continual extended appeal process (made more complex because of what is at stake) shows the general belief we should be overly concerned that we are executing people safely therefore is based on sound ground. It also is to be noted that around forty percent of those sentenced to die have their death sentences revoked in these appeals.

Nonetheless, there has been a movement in the last few years to cut down on the appeals process (known as habeas corpus), even though it often took many years for death sentences to be revoked or for the accused to be found actually (or possibly) innocent. As popular movies such as "Thin Blue Line" and "Hurricane" (both true stories and concerning people let free long after sentenced) show the possibility of error, our political leaders push for quicker executions and less protections in the courts. Many people are annoyed at how long death sentences take to be carried out (eight to ten years is fairly typical), but not only is the judicial process long in even the simplest cases, concern for speed opens up more avenues for error. For instance, limits on when to submit new evidence does cut down appeal time, but it also makes it hard to submit newly discovered evidence that might call the death sentence into question. And the recent advances in DNA evidence, which unfortunately is only relevant in a limited number of cases, shows how evidence can come to light years later that was unlikely or impossible to bring up at the time of the trial or first set of appeals.

Numerous studies of the process used in choosing who is to be executed has found many problems that warrant not executing even those that clearly "deserve" to be given current laws. A major problem, especially in the small amount of states that supply the majority of those eventually executed, is proper representation. Needless to say, the provision of the proper funds to insure indigent (and most people on death row are poor) defendants get proper representation is not up there in governmental priorities. It is rather hard to feel much pity for a class of people that on the whole are guilty, guilty often of rather heinous crimes. Nonetheless, inferior representation sets up a system where many either do not deserve the death penalty (an issue I will address in more detail later) or might simply be not guilty. Furthermore, it sets up an unequal system in which those with better counsel (but still the same crimes) are less likely to be sentenced to die.

This inequality needs to be addressed because some argue that the message sent is really pro-death penalty, namely, more should die not less. After all, if some disfavored group (by incompetent counsel, poverty, racism, or whatever) is guilty any way, it is just for them to die. Nonetheless, not only does this set up an uneven system of justice that is rightly held suspect, it assumes that the favored group is being given special benefits. Actually, the "benefits" may very well just be the constitutional and otherwise fair shake that everyone deserved. Furthermore, the sympathy and added concern some receive is based on considerations all should enjoy, which means a fairer system would decrease the number of executions across the board. Yes, a few of the previously favored class might lose out, but on the whole death sentence rate would decline, as well as setting up a more equitable system. This is very important in that people are more likely to respect and trust a system that treats all people equally fair, while the reverse has been shown to be the case all too often.

Inequality as a whole corrupts the death penalty process. As might be obvious, the amount of money one has is a primary factor involved in the chance you will be handed a death sentence. Race is also a major concern, though studies have shown the race of the victim is a bigger factor than the race of the defendant. It was found (taking all other factors into consideration) that black on white murderers are much more likely to result in the death penalty than any other class with black on black being the least. The disproportionate number of minority defendants has as much or more to do with the disproportionate number of minorities suffering poverty than clear out racism.

Nonetheless, racism as well as other discrimination against other groups (homosexuals, men over women, disfavored groups like accused child murderers, etc.) clearly still infect the system at many points. Finally, the discrimination that continues to effect the country which serves indirectly to put into place a society where the discriminated group is more likely to break the law (e.g. more blacks are poor partly because of our history of discrimination and its effects such as bad schools, neighborhoods left to rot, and so on) also must be taken into consideration. Apparently the message is the way to solve such inequality in this nation is to kill people.

The criminal justice system on the whole is clearly not perfect, given the pressure for conviction, as well as the fact that the people involved all are human with typical human flaws. It has been shown (and surely has occurred in several other cases) that the pressure to catch and convict those guilty of heinous crimes has resulted in various miscarriages of justice. It is to be noted that quite often the prosecution has good intentions, and sometimes might not be aware of the problems, but the result still is the same. Nonetheless, by intention or not, flaws in the trial (e.g., not giving the defense important evidence that might suggest innocence, witnesses or jurors that are biased, and mishandled evidence) or appeal process (in some states, judicial elections clearly in some way effect a judge's decision in these cases because of electorate pressures) make it that much more possible that mistakes were made, which is why so much effort is in place to uphold due process protections, even those that do not seem that important.

Such flaws are necessarily accepted to some extent since we need a criminal justice system, but the cost/benefit analysis is quite different when the result might be an unjust death. Finally, the great amount of effort and funds taken to (fruitlessly) uphold a truly just death penalty process would be better used elsewhere. The waste of time and money to uphold a morally and factually suspect penalty instead of more legitimate and useful methods is probably one of the worse components of capital punishment. Actually, an argument can be made that key victims of the death penalty are those who are ultimately forced to carry it out.

A move to seriously reform the procedure used to carry out the death penalty, a process that has been ongoing for years, is a step in the right direction. Nonetheless, if death is truly different and life is truly precious (even the life of criminals, though remember, an unknown number here do not deserve to die), it is questionable that a system this flawed will ever be completely reformed enough. Some are willing to take the risk that a few (clearly only a minority are convicted unjustly, but when death is the ultimate sanction, how many really can we let slip by?) will fall between the cracks, a risk I personally do not wish to take. The cost/benefit analysis involved here, however, becomes even more complex when we start looking at the death penalty itself. This examination on the justice of the penalty itself raises Eighth Amendment concerns of "cruel and unusual" punishments. This amendment narrows the class of crimes warranting the death penalty, which along with due process concerns (covering even those who "deserve" the penalty) limits the death penalty even further, if not totally. The decision is a complex one, and I shall break it down into parts: proportionality, arbitrariness, and contemporary standards of decency.

When determining the cruelty of the death penalty the first step must be determining if the penalty is proportionate the offense; does the person "deserve" the penalty? The decision that a particular punishment is proportionate to the offense basically involves two parts. First of all, does the purposes of punishment require that an offense be given a particular punishment as compared to a punishment notably less? The purposes of punishment are: to prevent crime (deterrence), protect society from criminals, rehabilitate (and obtain restitution, payment of one's burden to society), and express our moral opposition to various offenses. Second, does the person him or herself have the degree of guilt to justly mete out the punishment (any at all and/or the degree of punishment so handed down). Therefore, even if a person commits an act, it might not justify a certain penalty. For instance, if the person is insane or under a certain age, the penalty is different from it generally might be.

Does the death penalty reduce the number of murders? The answer is basically a question mark. Obviously, the chance of execution might factor into a person's decision, but how important such a chance (and remember how few actually are executed) really is a great matter of debate. Studies have shown that states that do not have the death penalty or once did are not notably (if at all) more likely to be victims of violent crimes. Furthermore, other factors are involved (probably more so) than death sentences, especially economic well being and the immediate spur of the moment actions involved in the crime. Therefore, especially if the alternative really is life in prison (often life means something like twenty years or less), the deterrent benefit of the death penalty is questionable. It also is to be noted that the length of appeals in death penalty cases (which are important again because of the possibility of mistake) not only makes it more expensive than life imprisonment, it also opens up some chance of violent crimes in prison. Therefore, though the death penalty is some type of deterrent, the true preventive value is much less than might be expected. The small deterrent value (meaning many who are executed for this reason need not be) makes all the other problems with the death penalty that much more serious.

The difference between the number of homicides (many of which are not death penalty offenses) vs even the number of people on death row (which is around ten times the number executed in the last twenty years combined) is so great that the idea the death penalty really is much of a deterrent is down right silly, if not delusional. A greater effort to fight societal problems would be much more successful than selective questionably fair executions. Not only is the deterrence of the death penalty questionable, the penalty interferes with other purposes of punishment. Though the death penalty reduces the risk of crimes in prison (there are other ways to do this as well, including isolation), it also increases the danger of mistaken executions, reducing the respect for the rule of law the penalty is meant to put into place. Furthermore, it ends the opportunity of rehabilitation or some chance for the person to pay back some of their debt to society, that is, except for the satisfaction the s/he is dead. The time spent in prison has religious connotations for those who believe in such moral developments, and has been clearly shown to give some (especially those young or able and willing to change) an opening to change their lives, and give something back (as hard as it might be to believe) to society. Therefore, it is questionable if executing a person is the best way to make sure they pay their debt to society.

Dry talk of deterrence might upset people who feel the basic purpose of the death penalty is to put forth the message that certain crimes are so horrible that the person who commits them does not deserve to live. This is especially important for many (though not all) who lost someone close to them because of a murder. Putting aside the problems of how the penalty is carried out, the death penalty is of questionable value as a method of upholding social norms in this matter. First, who is lost will still be lost, no matter how many more people die (if they are chosen fairly or not). Second, prison is no cakewalk, and this alternative would show that killing is not the solution to societal problems. Finally, though it is very hard for some to believe, those who kill are still human beings, and any alternative available besides killing them is basic to the "right to life" as well as the Eighth Amendment.

What crimes "deserve" the death penalty? The Supreme Court has basically held that the only offense warranting the death penalty is first degree murder (the intent to kill, not just acts of violence or accidents that result in death; this includes involvement in the crime or in crimes that are especially likely to result in homicide, such as armed robbery). Though in some cases the possibility that involvement itself might result in a death sentence is troublesome, the basic premise is legitimate. There is a certain parity involved when the state answers a planned homicide with a planned execution. Nonetheless, clearly even in this area there are various exceptions. For instance, if the person has a serious mental illness that effects his/her judgment so much that their guilt is seriously or totally reduced (such a defense is successful about one percent of the time). Also, if the person is so young (currently fifteen or younger) or retarded [Atkins v VA removed this class from the pool of "death eligible"] that they are not fully mature or as able to put up a defense (e.g. minors and the mentally retarded are more liable to falsely confess on account of pressure and leading questions) to be as responsible as an adult, though the chance of rehabilitation also factors in. The other primary exception are those people who have some other special situation that mitigates (lessens, thus the term "mitigating" factor) their crime. For instance, it a person kills someone who hurt a family member, or who was involved in a fight with them, or killed while suffering various other pressures that lessens guilt.

Current law allows various classes of people to be executed that have a reduced level of guilt, are less likely to be deterred for various reasons, and in some cases have a greater chance to be rehabilitated. For instance, even among those countries that allow the death penalty, only about five (including the U.S.) allow people under eighteen to be executed. Along with the moderately retarded (also executed in this country), this group not only has a reduced level of guilt, but in the case of minors have a greater chance of rehabilitation (surely more than say someone in their twenties and thirties who kill). Furthermore, putting aside your sympathies concerning using various harsh life experiences as mitigating factors, teens have had much less time and have less maturity to surpass them and live productive lives. For instance, if an adult grows up in a broken or abusive home in poverty and so on, there is a certain point where s/he cannot use it to justify or partly excuse criminal behavior. The same cannot equally be said for minors, especially to the extent of allowing the state to kill them. As a final note, the sanity of some of those who are executed is questionable, especially sanity level enough to warrant the state to execute them.

Though a minority of those on death row might fit in such categories, the vast majority do not. Nonetheless, a look at the number of death penalty eligible defendants (quite small compared to the number, even in death penalty states, who kill) that are given the death penalty is very small (a few thousand are in death row as compared to thousands of thousands eligible in those years). It has only been thus, even in the past when the death penalty was more widespread, partly because of racism and lack of proper due process protections. Why? The reason is that even those who support the death penalty do so only for the most heinous murders, and even there, they take into consideration who is being charged. Those who commit heinous crimes tend to be the product of homes and environments far from ideal. Many survive such situations, including those with physical and mental problems of their own, but disproportionately a select few do not. Juries often take such things into consideration, including the fact that the alternative is still prison, and do not choose the death penalty.

It may be hard to look past their acts, but these are human beings here, human beings who may require to be segregated from society, but human beings nonetheless. It does not lessen what these people have done to note that there is usually clearly enough of a human being involved here to warrant letting them live. I would suggest you check out some stories and interviews done about and with these individuals (and their families, who also lose out here) before equating them with animals worth extinction. Also, I feel it is an open question if many if any of those on death row are guilty enough given personal or societal problems to be given the death penalty. It is a bit of a leap of faith to consider free will in our trouble filled society to be high enough to warrant state executions. Finally, if you truly wish guilty people to suffer, spending many long years in prison is no cakewalk, and arguably is more harsh than a quick execution (and lacking much of its baggage).

The decision that a certain punishment is cruel and unusual (the "and" does not mean it has to be both, or we can have a system in which we can carry out cruel punishments on a steady basis without problems) also raises due process concerns. If a penalty is carried out in such a way that the procedure as a whole tends to be unfair, the penalty is unconstitutional on Eighth Amendment grounds. Not only is it "cruel" to be the victim of an unjust system, the system in itself is "unusual" in the legal sense in that it is not carried out by legal procedures, as well as the common sense concept of its rarity. How about the survivors, victims who see some killers get the death penalty and others time in prison?

The unequal way the death penalty is carried out (i.e., people committing relatively equal crimes with relatively equal guilt do not get equal punishment) is an ongoing concern for courts. The fact that each prosecutor, judge, and jury is different and unique with different and unique biases further complicates matters. Such a system is said to be "arbitrary and capricious" in that factors other than individual guilt are the deciding factor, resulting in a system where a death sentence all too often is more a result of the luck of the draw than consistent and fair procedure. The death penalty is uniquely troublesome in this area because of its severity, making a broken system that much more suspect.

Loads of effort and court time is spent trying to alleviate this problem by such means as careful writing of judge instructions to juries on what crimes deserve the death penalty. This fine tuning is largely a waste of time, since people tend basically to still go with their guts, which obviously is a kind of haphazard way of doing things. The result, as noted, is that some people who are equally (or less) culpable are given the death penalty, while others are not. The lucky ones tend to show how time in prison satisfies the basic purposes of the death penalty, while the unlucky few rot on death row, or simply die.

The final factor involved is the cruelty of the method used to carry out a certain punishment. The way we punish is a primary concern of the Eighth Amendment. For instance, torture is clearly held to be illegal as a cruel punishment, as is the rack, crucifixion, and so on. Furthermore, the decision of what is "cruel and unusual" is an ongoing process. For instance, branding criminals was held to be legitimate when the Eighth Amendment was first established (1780s), but it is now clearly cruel and unusual. Therefore, not only does due process make some (if not all) death sentences unjust, the acceptance by the framers of the Constitution of the death penalty (as seen by some clauses of the Constitution suggesting its possibility) is not the final statement on the matter. After all, the Constitution in the Fifth Amendment suggests the possibility of threats to "limb," but such penalties (branding, whipping, etc.) clearly are no longer acceptable.

The argument that even the most heinous criminals deserve some amount of humanity at the hands of the criminal justice system was present from the time of the Constitution, and clearly influenced the Eighth Amendment. The basic argument is that society cannot demean itself to the level of those who violate its norms. Some of the generation involved in the framing of the Constitution even suggested our republican system of government is violated by such uncivilized methods, especially since it makes the state able to break norms the people themselves must not. Is this not more a system for kings and tyrants than those nations who protect the basic rights of every citizen? It is to be noted that after their great strides against apartheid and apartheid, South Africa and Russia also ended capital punishment. As noted in Weems: "Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister."

An "eye for an eye" system is not only impossible (how do we punish a double homicide? a loss of a limb that the criminal does not have?), but in many cases would be inhuman in itself (how do we punish a rape? torture? the loss many violent crimes inflict on the victims and their families?). The ongoing development on the method of execution through history including our own in revolting against this "eye for an eye" philosophy. Some still feel that certain criminals have committed crimes so heinous that they deserve such penalties, but even if inflicting uncivilized punishments on criminals might make us feel good, it does little overall to lead us to a more civilized society as a whole. Actually, it demeans us all, while not truly matching the crime involved (even an execution after an extended prison stay does not compare to the sudden end of a life involved in most murders, especially not the torture sometimes involved).

A few make the argument that truly the death penalty is more humane than life in prison, especially given some of the new maximum security institutions set up these days that almost totally isolates its prisoners. This suggests we have a procedure in place that chooses only those justly executed. Furthermore, we as a society are to get into the killing business because heinous criminals feel that prison is too tough for them, and apparently because we do not have any more humane alternative available. The problems related with such a path explains why executing even those who want to die is problematic. Not only does this suggest human life is no longer worth saving, but the possibility of error is just too great to justify. The philosophical and legal argument (cf. euthansia) to end human life is rather weak in this context.

The nature of various methods of execution (described here) continues to be held more and more heinous, especially given the alternatives. This includes such methods as electrocution, gassing, hanging, and the firing squad. Methods that over time has been shown not only to be particularly heinous, but liable to be mishandled, thus making them more extended and horrible. For instance, there have been cases when it took repeated efforts to electrocute someone, extended periods to gas them, and mistakes on placement of the rope in hanging them. It becomes an open question at what point such executions reach the point of "torture," especially if we realize that in today's society that the term has a much broader meaning than in the past. Therefore, even if electrocution might actually have been an improved in the 1890s, currently it is as cruel as other currently rejected methods (also once believed to be just). It is to be noted that lethal injection is not free from problems either, even if it seems to be the best choice at the moment. Nonetheless, even this method raises ethical questions of health care officials taking part in executions.

The use of other methods besides lethal injection is clearly on the way out with only a few states left that even authorize other methods (of 98 executed in 1999, 94 were by injection, one by gas, and three by electrocution; problems with the few electrocutions that occur have made it controversial). Therefore, it might be said that the best possible way to kill someone is being used (akin to euthansia), though such words do not flow easily out of one's mouth. After all, as easy as it might seem (perhaps too easy for some), we are still allowing the state to kill people. Let us not ignore this fact, though at times it just might be easy to with apparently benign methods being used behind closed doors (Timothy McVeigh wanted his execution public, but again we want to keep such dirty business secret) with only a few witnesses (and victims) seeing it. This makes an ultimately public act a bit too private for my taste, and is probably more troubling than the other various problems (bad veins, problems with the body accepting the chemicals, etc) lethal injections involve. Ultimately, no matter how we kill the person, one is led to believe that killing people is uncivilized, even if authorized by the state. After all, Texas leads the nation in executions, and does so by lethal injection -- which suggests in some ways it can be used to ease the way for more (and to some less controversial) executions. How ironic that would be.

The uniqueness of death and the complexity in deciding if it is deserved shows the importance of having a jury instead of a single judge decide who will die. It also helps make clear that the death penalty is ultimately put into place by people like us, not some faceless "state." Furthermore, it has been shown that people who are forced to decide for themselves who is to live or die are much more hesitant than they might say on opinion polls. Therefore, the death penalty is unique in that in many juries not only determine guilt, but also decide whether the person convicted will get a prison sentence or the death penalty. The rather small number of death sentences handed out by juries, even in cases where the person is clearly guilty, suggests how serious and extreme the people at large feel the death penalty really is. Furthermore, these are people who are directly looking at killers in the face (though this also shows the public's respect for constitutional protections even for accused murderers), as well as probably not totally familiar (or perhaps not concerned) with all of the problems the death penalty involves. Juries obviously are not perfect, but such factors make it troublesome that some states allow (elected) judges to overrule jury decision to choose life over death, since the decision is too complex and nuanced to be made by one permanent representative of the state.

The core value of the jury is that is supplies the defendant a representative cross section of the community to serve as a check against the actions of a single permanent (at least for his/her term of office) state officer. Unfortunately, this is not truly the case in death penalty cases because those who are totally or even greatly opposed to the penalty are not allowed to serve on the jury. This makes sense because the alternative is to allow such people to basically nullify a penalty held by the courts as constitutional. The problem is that the alternative to this (obviously horrifying concept) is to remove a distinct minority of the community from such juries, resulting in juries more liable to find guilt and lacking in representation from various groups in society. Therefore, a true cross section to "express the conscience of the community on the ultimate question of life or death" is not present. And, if death penalty opponents on the jury threaten to "nullify" the law, this arguably is a possibility that traditionally was in the power of a juror to do. Either way, it is a troubling situation.

Nonetheless, I am inclined to think the "fact" that someone is death eligible is such a nuanced and case specific concept [e.g. many statutes talk about being guilty of "heinous" crimes] that a judge really cannot make an independant ruling under the spirit of Ring. What additional consideration, not fact based (said here to be the responsibility, under the sixth amdendment, of the jury), would the judge use? Take for instance numbers cited in a opinion by Justice Stevens concerning the eighty three "life" jury decisions (1972-1984) converted to death in Florida (a state with more than its fair share of death sentences compared to most) by state judges. Even putting aside numbers that tend to show that many "life" decisions are converted to death than the other way around, what led judges to reject the juries' decisions? Since guilt and sentencing is decided separately, it is not like there is a fear of bias ... it must be additional facts "necessary" to hand down a sentence or an individual moral calculus by the judge that the defendant deserves the death penalty. In either case, this is best ... and quite argue constitutionally required ... left to the jury.

It can and is argued that "evolving standards of decency" has reached such a point that no matter how it is carried out that the death penalty is cruel and unusual. I am willing to accept that this argument that the death penalty as a whole is inherently unjust is not one for the courts to decide, though enough due process and cruel and unusual concerns are present for them to severely limit or even end the death penalty. Nonetheless, it is an issue that we as citizens and the state as a whole must address. Special note should be given to the federal government's requirements for capital punishment, since it is provides an important way to determine what the nation as a whole feels is required for fair executions to take place. The Fourteenth Amendment establishes national citizenship with national rights, thus the Supreme Court's rulings that apply one standard for all. Is not congressional legislation a way to determine if a state practice is "cruel and unusual?" For instance, the federal government does not allow execution of the mentally retarded ... should this not be relevant to determine if the few states that actually do are not up to the national standards of decency? It also might be a democratically more tenable way than leaving it in the hands of the Supreme Court, though it is questionable if the current Court would give Congress such a broad (albeit reasonable) power.

It might be true that if asked without more, a majority in this country would support the death penalty, but would they if they take all the facts into account? For instance, the support of capital punishment becomes quite equivocal if the option of life without parole is supplied. Those who actually have a direct role also tend to become much more uncomfortable, including jurors, judges, and adminstrators. And even if they still would accept the punishment, should our respect for the life and liberty of all be strong enough to accept that the death penalty violates basic values we all hold dear? Do our basic moral beliefs justify the death penalty (Jesus' teachings for instance appear to me clearly to not do so)? Is it civilized to kill people when we feel kill as a whole is wrong? Yes, we allow killing for various reasons (e.g. self defense), but state executions are not only a result of a flawed system, but done even when alternatives often clearly are possible. The effort used to upkeep a flawed and morally corrupt system is not only a waste of resources, but a waste that demeans us all.

It also demeans the respect we have in the world community. What makes our society so special as compared to any number of comparable industrial and developed countries that have banned or severely limited the death penalty? International standards (for an expanded discussion, see also, here) are of some relevance in determining if a penalty is "cruel and unusual," which is a substantive concept not limited to the standards of any one nation. Are we not supposed to be if anything more concerned with human rights? [As noted in the article just cited, NO nation allowed the execution of the mentally retarded, except (until Atkins, the breadth of which is currently open to debate and further development) the US.] Can we hold true to our concern for human life given all the problems inherent in the death penalty, and the chance for mistakes? The fact that other nations, especially in Europe, are imperfect in numerous ways, does not make their consistent denunciations of our lone wolf stance on the death penalty any less valid ... "we have the right to violate basic norms of justice because you violate others" is a rather sad argument on which to be forced to rely. This is particularly a matter of concern when in we must seek international support for use of force overseas and other questionable activies, including military tribunals. If we do not uphold the highest regard for human rights, our actions no longer can be defended solely on the grounds that the US respects liberty and justice, and we are left with more unsavory and more open to attack pragmatic grounds.

The sanctity of life and problems with choosing who "deserves" to die are matters so important that I do not feel even those who even want to die on death row should be given the choice, including the choice of a more inhumane method of execution (very few who were executed in recent years by hanging chose to do so) to make some kind of public statement or for whatever reason. A few actually do (in one case, one Thomas Grasso was let go from his twenty year NY prison sentence so that he could get his wish to be sent to another state where he was sentenced to die -- prison was too tough for him, you see) want to die, though letting them seems rather stupid -- are we not supposed to be punishing these people? Some might say that it is more humane or just fufilling thier right of autonomy or something, but I have not spent all this time talking about the evils of the death penalty for nothing here. Many of the problems still apply even in this case, and I do not want to bloody my hands just to alleviate the life of a murderer. What is more ridiculous than that?

The opponent of the death penalty is liable to be called a hypocrite when they also support the right to choose an abortion and/or euthanasia. Is not the life of the unborn or infirm precious as well? The answer is obvious (yes), but the situation is clearly not the same. It should go without saying that the process involved in both cases is not foolproof, and a better society would be one where neither was necessary. Nonetheless, I think each is different enough from the death penalty to separate them.

The right to choose an abortion involves an unborn and not fully developed (especially if we separate the tiny minority of late term abortions) child (embryo, fetus, being, etc) that is connected to a fully formed women with rights and responsibilities of her own. She is the one clearly (or at least more greatly) protected by law, and she is the one who has to choose what is right for the growing person inside of her. The choice boils down to a moral and religious one, which in certain cases might be wrong, but the majority will be hard pressed to equate an early term abortion with the death of an adult. The adult by the way clearly has constitutional rights, as well as a full blown personhood and life experiences. Even those who feel the unborn are fully persons in a legal and moral sense, cannot also believe a loss of their life is equally serious or as clearly problematic on a legal level.

The right to euthanasia is an even easier call in many ways. Though in certain cases it is not totally clear, this usually is partly or wholely the case of someone saying ahead of time that they want to die (or have limited life support used), which is obviously different than most cases of the death penalty. The person usually is going to die soon anyway, unlike the case of the person on death row, or is in so much pain, that life is worse than death for that particular person. Therefore, it can be argued true respect for life, a life worth living, justifies allowing euthanasia. The concern of not allowing euthanasia against the will of the person or when it is not necessary (though this often is a selective of saying what someone else thinks is good for the person) remain legitimate concerns, but the basic concept is quite different from the the death penalty.