Is the Death Penalty Constitutional?

Tuesday night’s
botched execution of an Oklahoma prisoner has reignited
America’s long-running
debate over the propriety of capital punishment. As a policy
matter, I’m with the abolitionists. When it comes to the death
penalty, our criminal justice system (federal and state) has a
proven track record of injustice, malfeasance, and idiocy. It’s
foolish to keep trusting the government with such a grave
responsibility.

But that’s not the same thing as saying the death penalty is
unconstitutional. In fact, the Constitution plainly
sanctions capital punishment in several instances. The Eighth
Amendment is the most famous, with its injunction against
inflicting “cruel and unusual punishments.” The Fifth Amendment
also provides textual support for lethal punishment. No person, it
reads, shall be “deprived of life, liberty, or property, without
due process of law.” That means the government may in fact deprive
you of your life, but only after you’ve been properly charged,
tried, convicted, and sentenced to death (and then only after you
have exhausted your legal appeals). Upon ratification in 1868, the
14th Amendment’s Due Process Clause applied that safeguard against
the states.

To be sure, judges are duty-bound to scrutinize the application
of capital punishment in each and every case that comes before the
bench. But the only way to end the death penalty in its entirety
(short of constitutional amendment) is through the political
process.

The death penalty should be vigorously debated. Does it deter
crime? Does it provide closure to victims and their families? Is it
revenge masquerading as justice? Is it a bloody relic we’re better
off without? But we should not pretend the Constitution is silent
or ambivalent about the basic existence of the practice. Like it or
not, the death penalty is constitutional.