by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The headlines say the justices of the Supreme Court are “openly feuding” and “sniping” at one another over the death penalty. What they are in fact doing is nibbling around the edges.
Some opponents of the death penalty wish to see the Supreme Court declare it unconstitutional, and they are not too picky about how that gets done: not jurisprudence but jurispretext.
The problem with that is that the Constitution itself categorically sanctions capital punishment, for instance by specifying in the Fifth Amendment certain limitations on the conditions in which a person may be “deprived of life.” Whatever “cruel and unusual punishment” means in the Eighth Amendment, no one involving in the drafting of that language or the ratification of the Constitution believed that it prohibited capital punishment. “We should not pretend the Constitution is silent or ambivalent about the basic existence of the practice,” writes Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court. “Like it or not, the death penalty is constitutional.” …
… Most of the popular arguments against the death penalty are like most investment advice and Republican campaign promises: I want to believe, and am inclined to do so, but they do not stand up to much scrutiny. It may very well be the case that an innocent man will be sentenced to death, but that also is an argument against incarceration, speeding tickets, and much else. An execution cannot be undone, but neither can the damage from 40 years’ wrongful incarceration. The irreversibility of the death penalty is an argument for prudence in its use, as indeed we must be prudent in all uses of state violence. It is not an argument against the thing itself.