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September 6, 2011

Is there a strong constitutional basis for saying "death is different"?

We ended class with a question/issue/talking-point that may well haunt us throughout the semester and that has arguably haunted all modern legal debates over modern issues of crime and punishment: is "death" really different as a matter of constitutional law?

Couple of preliminaries as we unpack this question/issue/talking-point going forward:

1.  As a basic normative and empirical and factual matter concerning state punishment generally, the (too) simple assertion that "death is different" cannot be readily gainsaid.  John Stuart Mill in his renown “Speech in Favor of Capital Punishment” (worth reading and available here), observed punishment of death makes a unique "impression on the imagination" and "is more shocking than any other to the imagination."  The undeniable reality that death as a punishment "feels" different in kind than any other form of punishment necessarily means humans will react and respond to this punishment differently even if we try to treat it like any other form of punishment.

2.  As a basic historical and descriptive matter concerning state punishment generally, the observation that "death is (and always has been) different in criminal law's doctrines and practices" also cannot be readily gainsaid.  Much of both the common law history of criminal law's development, as well as much of modern statutory and related criminal punishment doctrines, reflect the reality that the people who make the law and shape its application "feel" differently about the death penalty than about any other form of punishment.

3.  As a basic matter of constitutional text, the doctrinal basis for asserting that special substantive and/or procedural constitutional rules should control the death penalty is a pretty hard argument to make. The Fifth, Sixth and Eighth and Fourteenth Amendments contain nearly all the constitutional provisions and prohibitions that get the most attention in litigation over the death penalty (and other punishments), but the text of these provisions do not appear to call for many (or any) unique doctrines just for the death penalty.

With this background, I am eager to hear via comments or in class whether and how one can develop a strong argument for the claim that the Constitutionjustifies or demands or even allows special substantive and/or procedural constitutional rules for the operation and application of the death penalty.   Putting this point a little differently, I think the easiest way to understand (and justify?) the pro-prosecution outcomes in cases like Williams and McGautha and McClesky comes from understanding that the justices in those cases were (justifiably?) concerned that any pro-defendant constitutional rulings would subsequently have to get extended to all non-capital cases and defendants.

September 6, 2011 in Death penalty history, Supreme Court rulings, Who decides | Permalink


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Let me offer the following:

The very best my client can hope for at a capital sentencing hearing is life in prison — a deprivation of liberty. At worst, my client is sentenced to death and is condemned to lose life, liberty and property at once. Due process in the capital sentencing arena, therefore, does not really protect "life, liberty, or property" in the traditional sense. Unlike traditional convicts, my client is losing one of those things (liberty), even with a "positive" outcome.

At a capital sentencing hearing, "life, liberty, AND property," are simultaneously being threatened. The threat to these three constitutionally protected areas is not temporary in nature. Death, unlike a prison term or a forfeiture, is permanent and irreversible.

The structure of the due process clause, "deprived of life, liberty, or property without due process of law," suggests that the degree of due process afforded to defendants should be the same if they would keep or lose either their (1) life, (2) liberty, or (3) property. The key is the word, "or."

The structure of the clause does not suggest due process should be the same for those faced with (1) losing "life, liberty, or property" and those faced with (2) losing "life, liberty, and property."

Posted by: Elbert A | Sep 7, 2011 4:07:04 PM

I would quibble with the notion that "property" is threatened with a death sentence. The condemned's estate does not escheat with said sentence.

Also, what to make of the sentences where someone is sentenced to prison (liberty) AND a fine (property)? Do those sentences, in your example, require "extra" due process?

I think that due process is communicative to all three terms:
1. No person shall be deprived of life without due process
2. No person shall be deprived of liberty without due process
3. No person shall be deprived of property without due process

I think you need an "exclusive disjunction" (either-or) rather than a mere "disjunction" (or). That said, it is not a bad argument.

Posted by: Steven Druckenmiller | Sep 7, 2011 4:54:04 PM

I tend to agree with Elbert, and would even take it one step farther. The due process clause states that one can't be "deprived of life, liberty, or property without due process of law." It does not say what due process is, or if the same process is due in each situation. I would argue that the vagueness of the words "due process" are what allows for special substantive and/or procedural rules in capital cases. An inference which could be drawn from this vagueness is that perhaps the drafters believed there could be different process due when the government is depriving someone of their property as opposed to thier liberty as opposed to their life.

Posted by: Sean B. | Sep 7, 2011 5:04:15 PM

On an unrelated note, Did anyone happen to catch the end of the Republican debate last night? Rick Perry was asked about his record on the death penalty. He made the empirical argument that no innocent person has been executed, but even more interesting was his full throated normative defense. It was something along the lines of "when you kill our citizens, you will face ultimate justice." I can't remember exactly because I was too busy yelling and throwing things at the TV.

Posted by: Kevin S | Sep 8, 2011 10:10:39 AM

I agree with Steven's response to Elbert's argument. Obviously, if the 14th Amendment protected life, liberty, "and" property, then it would be unfair to interpret it as affording the same protection for life, liberty, "or" property--as protecting a person from being deprived of all three does not imply protection from being deprived of one. However, because it reads: life, liberty, "or" property, we can infer that this includes life, liberty, "and" property as well--as protecting a person from being deprived of one implies protection from being deprived of all three. This is pretty obvious and something everybody can agree on.

What is a little more confusing is whether being deprived of all three requires more due process protection, which was the main point of Elbert's argument. In my opinion, if the drafters had intended for there to be extra protection for an individual deprived of all three (life, liberty and property), they should have explictly stated a standard separate from regular due process. Since they did not, in my opinion, a person deprived of all three should not be treated any differently than a person deprived of only one.

Posted by: Harrison Markel | Sep 8, 2011 12:08:55 PM

Although Elbert's argument is awesome, I find it unconvincing for the reasons Steven stated. I also, as a general rule, distrust and avoid textualist arguments. Furthermore, I agree with Harrison that if the drafters of the amendment wanted more process for capital cases, they should and would have explicitly said so. However, this doesn't mean that they shouldn't be treated differently. Provided the Constitution doesn't prohibit the extra process we afford to capital cases, why do we need it to justify their special treatment?

Posted by: Melissa Dubya | Sep 8, 2011 1:23:02 PM

I admire Elbert's gusto, but as a technical grammatical point I believe it still fails. My argument parallels that of Sean's--one cannot be deprived of one's life, liberty, or property without due process, but that does not necessarily mean that the same procedure applies in each case. Moreover, the fact that the Framers listed each one of those items separately, as opposed to lumping them together in a vague statement that one cannot be deprived generally without due process, would indicate a separate importance to each individual item. Certainly the Framers contemplated the existence of the death penalty, but I am not convinced that they believed it to be the "same" as other sentences for purposes of this blog's question.

Posted by: Krystin Brehm | Sep 8, 2011 1:54:10 PM

I believe it’s a hard case to sell when saying the U.S. Constitution demands special procedural / substantive rules in regards to the death penalty. That being the case, I am all for, and not surprised to hear, other branches reaching out to intervene in what has typically been deemed the judiciary’s sentencing role (although we students know there are many “whos” in the equation). As recently as 2004, the NY, NJ, and NM legislative branches have all abandoned the death penalty. As NM Governor Bill Richardson stated when signing its bill, “[there is a lack of] confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the state is going to undertake the awesome responsibility, the system to impose the ultimate penalty must be perfect and can never be wrong.” This standard, albeit high, undoubtedly should be held as true. Yet we know all too well that is not always the case. As Congress has demonstrated, again in 2004, there was a strong need for the Justice For All Act, which consequently entailed the Innocence Protection Act. It was this Act that encompassed (1) Exonerating the Innocence through DNA Testing; (2) Improving the Quality of Representation in State Capital Cases, and (3) Compensation for the Wrongfully Convicted. While the list can go on, I think it suffice to say that because there is no definite way to make the U.S. Constitution justify special procedural / substantive rules – short of passing a new amendment -- the responsibility must fall upon the other branches.

Posted by: Isabella | Sep 8, 2011 1:59:50 PM

While it is a clever argument, I do not think the standard of due process changes based on a person being deprived of life, liberty, and property. However, I think what makes death different is that currently we cannot meet the standard of providing due process to citizens when applying the death penalty or any sentence for that matter. Due process to me has a basis in fundamental fairness. Currently, I do not think anyone can correctly argue that American citizens are capable of fairly applying the death penalty. While, it can be argued that they also are not able to fairly apply other sentences these sentences are different as they can be reversed and possible changed. However, once someone is killed this is something we cannot reverse therefore we need to make sure we can fairly apply death in order to use this type of sentence. Therefore, I believe we are unable to say that each defendant receives due process prior to being sentenced to death.

Posted by: Carmen Smith | Sep 8, 2011 2:07:45 PM

I think #3 is actually a good argument that capital punishment deserves special treatment. How many other issues arguably appear in 4 different places in the Constitution? The grand jury requirement of the 5th Amendment clearly shows that the framers intended more procedural protection in capital cases.

Posted by: Marco | Sep 12, 2011 8:04:24 PM

I find Carmen's argument re citizens' incapability to fairly apply the death penalty interesting. I'm not ready yet to agree that people are completely incapable of making such a decision - though her argument reminds me of the Bowers article discussing the Capital Jury Project's research (p. 261-263 of text). The study found that quite a few interviewed jurors did not understand the statutory standards supposedly guiding their sentencing discretion. A criticism of guided discretion statutes, set forth in the exerpt, is that jurors might place the burden of the decision on someone else's shoulders. This goes back to the idea that death is different. Apologies for being totally circular (and not necessarily answering the Q) - but it seems like, "Death is different, so we need to be careful," but even with guideposts in place, death is still different, and it's uncomfortable to render even a careful decision.

Posted by: Jennifer H. | Sep 13, 2011 11:57:39 AM

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