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The Constitutional Question

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Abstract

The death penalty poses a legal as well as a moral question. Thus, many lawyers in the United States have tried to get the Supreme Court to declare capital punishment unconstitutional mainly on the basis of the Eighth Amendment, which prohibits “cruel and unusual punishment,” or of the Fourteenth, which requires “the equal protection of the laws” for all the inhabitants of the United States. Let us consider the constitutional question then.

Keywords

Criminal Justice Death Penalty Prison Sentence Federal Court Death Sentence 
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Notes

  1. 1.
    William O. Douglas, The Court Years, 1937–75 (New York: Random House, 1980), p.Google Scholar
  2. 2.
    William O. Douglas, The Court Years, 1937–75 ( New York: Random House, 1980 ), p. 9.Google Scholar
  3. 3.
    J Wm. and Mary (1689), 2d Sess., c. 2.Google Scholar
  4. 4.
    Sir Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 ( London: Stevens and Sons, 1948 ), pp. 518–520.Google Scholar
  5. 5.
    Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:’ The Original Meaning,” California Law Review 57 (October 1969), pp. 839–865.CrossRefGoogle Scholar
  6. 6.
    Furman v. Georgia (1971), 408 U.S. 238, at 257–306.Google Scholar
  7. 7.
    Joseph Story, On the Constitution ( Boston: Hilliard and Gary, 1833 ), p. 710.Google Scholar
  8. 8.
    Weems v. United States (1909), 217 U.S. 349.Google Scholar
  9. 9.
    Trop v. Dulles (1957), 356 U.S. 86.Google Scholar
  10. 10.
    Sir James Fitzjames Stephen, A History of the Criminal Law of England vol. 3 (London: Macmillan, 1883), p. 383. From the last sentence of this excerpt I infer a retributivism of the most rigorous kind; the really depraved must be exterminated. After all, it was Stephen who minted the curious comparison “the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.” A General View of the Criminal Law of England ( London: Macmillan, 1863 ), p. 99.Google Scholar
  11. 11.
    Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980, U.S. Department of Justice, Bureau of Justice Statistics ( Washington, D.C.: U.S. Government Printing Office, 1981 ), pp. 200–201.Google Scholar
  12. 12.
    Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980,U.S. Department of Justice, Bureau of Justice Statistics (Washington, D.C.: U.S. Government Printing Office, 1981), , p. 202.Google Scholar
  13. 13.
    Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980,U.S. Department of Justice, Bureau of Justice Statistics (Washington, D.C.: U.S. Government Printing Office, 1981), , p. 202. For convenience I have omitted the percentages in the original table that related to the crimes of rape, airplane hijacking, and treason, all of which were substantially lower than the percentages favoring capital punishment for murder.Google Scholar
  14. 14.
    Hurtado v. California (1883), 110 U.S. 516, at 529.Google Scholar
  15. 15.
    Weems v. United States (1909), 217 U.S. 349, at 373.Google Scholar
  16. 16.
    Furman v. Georgia, at 403.Google Scholar
  17. 17.
    Hugo Adam Bedau, The Death Penalty in America, 3rd ed. ( New York and Oxford: Oxford University Press, 1982 ), p. 63.Google Scholar
  18. 18.
    United States Department of Justice, the Federal Bureau of Investigation, Uniform Crime Reports, 1980 (Washington, D.C.: U.S. Government Printing Office, 1981), p. 182. All the data in this section are drawn from this table.Google Scholar
  19. 1.
    Coker v. Georgia (1977), 433 U.S. 485.Google Scholar
  20. 2.
    Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry. Reeve, Francis Bowen, and Phillips Bradley ( New York: Knopf, 1945 ), p. 103.Google Scholar
  21. See Furman v. Georgia (1972), 408 U.S. 238.Google Scholar
  22. See Paul Hollander, The Political Pilgrims (New York: Oxford University Press, 1981). tCorruptio optimi pessima as Seneca put it: “The corruption of the best is worst.”Google Scholar
  23. My opponent’s citation of John Stuart Mill’s advocacy of capital punishment calls for a discussion of that great man’s views on this topic. They will be found in a speech delivered in Parliament in 1868 in which the abolition of capital punishment was debated; the abolitionist lost. The full exchange is found in Gertrude Ezorsky’s Philosophical Perspectives on Punishment ( Albany: State University of New York Press, 1972 ), pp. 271–278.Google Scholar
  24. Surely Mill was not at his best in this debate—even though his side won decisively. For a full but sanitized account of the various methods of execution now considered acceptable, see the Report of the Royal Commission on Capital Punishment, 1949–1953 (London: Her Majesty’s Stationery Office, Reprinted 1973, Cmd. 8932), pp. 246–273. After a detailed review of experience in England and other countries, the Royal Commission concluded that hanging is the speediest and most humane method of killing murderers. The three other prevailing alternatives—electrocution, gas, and shooting—were rejected for reasons that seem convincing. Lethal injections were considered. Although the painless aspect of the process held some appeal, the medical objections were considered insuperable.Google Scholar
  25. For a skeptical commentary on the commission’s account of hanging, see Arthur Koestler, Reflections on Hanging (London: Victor Gollancz, 1956), pp. 9–10, 139–145.Google Scholar
  26. The Royal Commission took special note of the good behavior of condemned men in England, who spared onlookers the experience of “distressing and unseemly scenes of panic and resistance. Those of our witnesses who have the duty of attending executions gave striking and unanimous testimony to the stoicism with which condemned men—and women—almost always face death on the scaffold.” Ibid., pp. 260–261.Google Scholar
  27. Which is neither here nor there. A legal sense of “natural” (as in natural rights) is possible, but here too Professor Conrad is out of luck. Practically all traditional legal theorists, including the framers of our Constitution, thought of the death penalty as consistent with natural rights and laws.Google Scholar
  28. Taken from John Julius Norwich, A History of Venice ( New York: Alfred A. Knopf, 1982 ), pp. 227–228.Google Scholar

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© Ernest van den Haag and John P. Conrad 1983

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