The Instigator
datapolitical
Con (against)
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The Contender
sethgecko13
Pro (for)
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19 Points

The Death Penalty is Unconstitutional

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Voting Style: Open Point System: 7 Point
Started: 12/25/2007 Category: Politics
Updated: 9 years ago Status: Voting Period
Viewed: 4,873 times Debate No: 985
Debate Rounds (3)
Comments (8)
Votes (7)

 

datapolitical

Con

The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The common arguments are that there is no form of execution which does not violate the Eighth Amendment, or that under substantive due process (look it up) that it is fundamentally unlawful to take a life.

The latter argument having been rejected by the legal community, the former is currently before the court in this term.

My argument in this case is simple. The Constitution cannot prohibit what its text explicitly permits.

In spite of the 8th Amendment, the Fifth Amendment states:

No persons shall be held to answer for a capital crime, unless on a presentment or indictment of a Grand Jury...nor be deprived of life without the due process of law.'

This clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the 'cruel and unusual punishments' prohibited by the Eighth Amendment.

Even if the Supreme Court finds the current cocktail used for Lethal Injection (which is the current case) to be unconstitutional, they must still hold that a legal combination of drugs exists, and give an indication as to what "punishment" must be avoided using that combination rather than the current one.

Either way, the Death Penalty is legal.
sethgecko13

Pro

Given the framework you've established for the Constitutionality of the death penalty, I disagree that the death penalty as currently implemented meets the constitutional criteria permitting capital punishment.

That said, I agree somewhat with the first argument you made, which centers on the current Supreme Court case Baze v. Rees which argues that lethal injection cannot guarantee a painless death so it is therefore unconstitutional given that it violates the Eighth Amendment (as you noted). Given the court's historical precedents governing executions, one could reasonably conclude that the court will rule capital punishment legal once a verifiably painless method of execution is developed.

The substance with my disagreement with your claim that capital punishment is constitutional centers on the second argument you made – citing the Fifth Amendment which states "No person shall be held to answer for a capital, or otherwise infamous crime, … nor be deprived of life … without due process of law; …" Given the current state of the criminal justice system in the United States, I don't believe that defendants (especially those in capital cases) are given due process of law before they're sentenced in capital cases.

Our criminal justice system is biased heavily against defendants who are poor and who are of minority status. It is not egalitarian, and the relative level of justice one gets from the system is commensurate with that individual's ability to buy it. There are reams of statistics as well as a variety of other indicators that attest to this fundamental lack of due process for many defendants in our criminal justice system. To wit:

- Of the limited number of defendants who have had access to DNA evidence in their defense since 1989, there have already been 210 post-conviction DNA exonerations in the United States according to the Innocence Project.

- Minorities comprise 43 percent of total executions since 1976, while comprising only around 25 percent of the population ("Race and the Death Penalty"—American Civil Liberties Union, February 26, 2003).

- Since 1977, blacks and whites have been the victims of murders in almost equal numbers, yet 80 percent of the people executed in that period were convicted of murders involving white victims (Bureau of Justice Statistics).

- Despite being only 12 percent of the population, blacks account for 43 percent of current death row inmates ("Death by Discrimination – The Continuing Role of Race in Capital Cases."—Amnesty International, April 24, 2003).

- As the American Bar Association concluded in its 2004 report "Gideon's Broken Promise"; "Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America's courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States."

- Spending by states on prosecutions and expert witnesses far surpasses the expenditures on indigent defense counsel and expert witnesses for the defense. The practical consequences of this reality are that of found guilty, those represented by publicly financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation 88 percent compared to 77% in Federal courts and 71% compared to 54% in the most populous counties."

Further, there are a number of institutional factors that end up having an effect on the application of the death penalty;

- The United States relies too heavily on plea bargaining, which is not only an incentive for the innocent to plead guilty, but is also an incentive for prosecutors to overcharge defendants (with the goal of enticing them to plead to lesser charges).

- Many of the judges in our judicial system are elected to their posts. This means that the pressure frequently exists to rule in favor of the death penalty (regardless of the actual facts of the case and especially around election time) out of fear of public reprisal for being perceived to be soft on crime.

A second argument about the constitutionality of the death penalty has to do with the case of Trop v. Dulles in 1958 in which the Supreme Court concluded that the Eighth Amendment contained in it an "evolving standard of decency that marked the progress of a maturing society." Based on that precedent, it is reasonable to conclude that the relative constitutionality of capital punishment is based solely on the willingness of the citizens of the US to impose it. As Gallup Polls attest, support for Capital punishment has continued to decline over the past decade or so as DNA evidence has continued to illustrate the numerous flaws in our justice system. Moreover, the more people learn about the inequities in the justice system – the more they tend to oppose capital punishment. So it follows that the death penalty must be moving toward unconstitutionality (if it isn't there already).

Finally, I offer what I believe to be a novel argument that I don't think I've yet seen in most debate forums: capital punishment is unconstitutional because, as the Supreme Court has held in Ford v. Wainwright – it violates the Eighth Amendment to execute the insane. My logic is two-part;

1) as the Supreme Court has established, executing the criminally-insane violates the Eighth Amendment as it is cruel and unusual given that it is "executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life," …2) I would posit that anyone and everyone who is capable of committing a heinous enough violent crime as to render themselves eligible for capital punishment prosecution meets the criteria to qualify as insane … therefore, I argue that the death penalty is unconstitutional.
Debate Round No. 1
datapolitical

Con

datapolitical forfeited this round.
sethgecko13

Pro

I'll just wait around for the third round to see if any rebuttals are made or if any new points are raised.
Debate Round No. 2
datapolitical

Con

datapolitical forfeited this round.
sethgecko13

Pro

Given that DataPolitical has vanished, I'll instead take up MJG283 on the points he raised as they're quite good.

It seems to be little-acknowledged, but much of our case law precedents are based largely on the "evolving standards of society." Though lifetime appointment frees judges from being subject to the momentary passions of the public, they are tied to a time and place and their decisions (coupled with the composition of the court) don't always adhere to stare decisis (especially now as supreme court appointments are perhaps more politicized than ever).

Your question of political candidates on the issue of the death penalty is a good one – and there's a good explanation for it. Simply put, very few people have sympathy for (suspected) murderers or for the poor.

It's no coincidence that virtually all of the people on death row are poor (which is a major reason that they end up there in the first place) and there are very few advocates in power for those populations. Lacking numbers and money – such people have little power to wield in our political system.

It also doesn't help that, In our concision-oriented, demagogic culture - when you champion the rights of the accused as a politician, you're automatically painted as soft on crime. It's the same reason you don't see many politicians championing the rights of drunk drivers (which is why organizations like MADD can ram through virtually any legislation unopposed, regardless of how impractical or unconstitutional it may be). The same goes for child sex offenders; there are a slew of new laws that have been passed across the US that threaten to make recidivism rates higher by encouraging sex offenders to go underground – but because they sound good – there are few people opposed to them.

For those reasons, few make ending the death penalty a major platform of their campaign.

While it's true that the majority of the public still supports the death penalty, as you conceded that support wavers as soon as you start introducing nuance (like the possibility of life without parole). When people become educated about the various inequities in our justice system – that support drops further. That reality, in part, explains why we're at a 13-year low in terms of the number of executions nationwide.

The Constitutionality of the death penalty is debatable – that's what we're here for. Your argument doesn't really address the substance of what I was saying. I'm not arguing per se that the government lacks the constitutional authority to engage in the death penalty – I'm arguing that the death penalty is unconstitutional because due process (which is an essential component that strictly regulates the government's power to administer things like capital punishment) is denied to the defendants who are sentenced to death.

The notion that any law or practice is "moving toward unconstitutionality" is not ridiculous – the reality of the flexibility of what we consider to be constitutional surrounds us in examples from the gradual loosening of freedom of speech (especially with respect to "obscenity" and to criticism of the government) to the issue of Abortion. What's patently absurd is pretending that the history of our judiciary isn't rife with complete 180-degree changes in how the constitution is interpreted. There's no shortage of irony in the fact that some of the most ardent self-described "originalists" in the supreme court hold positions contrary to the original interpretations of the Constitution as enumerated by the framers.

Judicial Pragmatism doesn't eliminate the existence of "ironclad" or "consistent" limits on the power of government. It simply provides a framework whereby we take into account what the modern ramifications are for the intentions or spirit of the laws established by the framers. In an age where we can now look into the brain to observe the chemical reactions that govern our thought processes (which has led to vast changes in how we think about mental health) taking that modern information into account has bearing on the relative constitutionality of something like the death penalty.

Thanks for your excellent points – I appreciate you stepping up in Datapolitical's absence.
Debate Round No. 3
8 comments have been posted on this debate. Showing 1 through 8 records.
Posted by mjg283 9 years ago
mjg283
"What's patently absurd is pretending that the history of our judiciary isn't rife with complete 180-degree changes in how the constitution is interpreted."

Oh, I don't deny that at all. In fact, I lament it. And I agree that there are many self-described originalists and strict constructionists who aren't very principled. I even have a comment about that in the ACLU/Criminal/Communist debate. I try me best to be principled. As far as I'm aware the founders (and the framers of the 14th Amendment) believed the death penalty to be constitutional. Why do I believe this? Because they put PLAIN TEXT in the 5th and 14th amendments to this effect! (Indeed, during the time of the Founders and at common law, upon which the Founders explicitly relied, the Death Penalty was available for many more crimes than just plain old murder).

No amount of "modern information" changes that very basic reality. And no amount of "modern information" should in any way change what is patently clear from the text of the Constitution. If you can ignore the text with respect to the death penalty, you can ignore it as well with respect to freedom of speech, search and seizure, procedural due process, trial by jury, slavery, etc . . . ., all under the guise of "evolving standards" or "modern realities," or, more truthfully, "because that's what I want."

Don't give judges and lawyers that kind of power. I am a lawyer -- I speak from experience. We're arrogant SOB's. We know what's best for you better than you do. The only thing stopping us from implementing all of our enlightened ideas are those annoying textual limits. If they go, well, the 14th Amendment says all fetuses are lives with full protection, all same-sex marriages, civil unions and casual hand-holdings are forever prohibited, the government must carve George W. Bush's face onto Mount Rushmore with the word "Awesome" right below it, and Mike Gravel can't run for President ever.

Good debate.
Posted by mjg283 9 years ago
mjg283
"It seems to be little-acknowledged, but much of our case law precedents are based largely on the 'evolving standards of society.'"

Oh, I fully acknowledge that. I just disagree with those cases for the reasons I mentioned. It is an interesting debate in terms of why the death penalty is or isn't popular, but to me, it really is of no relevance since THIS topic is about the death penalty's constitutionality, which in my view, does not depend at all upon how many people happen to support it. The only reason I cited the numbers I did was to show that even under this rather vague "evolving standards of society" standard, the death penalty is probably still constitutional. What the heck does "evolving standards" even mean anyway? Does that mean that a practice becomes unconstitutional when a majority of people in the country stop supporting it? When the majority of STATES overturn it? When national support happens to go down by ten percentage points? The thing is, what you've really got when you set such a vague standard is a situation where a judge can overturn a law anytime he or she feels like it.

"I'm arguing that the death penalty is unconstitutional because due process (which is an essential component that strictly regulates the government's power to administer things like capital punishment) is denied to the defendants who are sentenced to death."

If you're arguing that due process is denied to EVERY defendant who is sentenced to death (that's a rather high burden to set for yourself, in my opinion), then you're arguing that the death penalty is per se unconstitutional. Of course, I would agree that ANY conviction that involved a denial of procedural due process is unconstitutional. That's hardly a controversial point, but the question in THIS debate is whether the specific punishment of the death penalty, independent of due process violations, is unconstitutional.

To be continued
Posted by mjg283 9 years ago
mjg283
On the "evolving standards" point, an October Gallup poll shows that roughly 69% of Americans continue to support the death penalty, and that number appears to have been increasing since mid-2005:

http://www.gallup.com...

Admittedly, support for the death penalty drops when presented with the alternative of life without parole. But if the question is whether the death penalty violates the standards of decency set by the majority of this society, clearly it does not.
Posted by mjg283 9 years ago
mjg283
This "evolving standards of society" um, standard, has never sat well with me. Certainly "society" remains willing to impose the death penalty in the states where it remains on the books (and possibly in states, such as New York, where it was effectively overturned by judicial fiat rather than by any vote of the legislature). Not to mention the fact that the FEDERAL death penalty remains on the books with no serious effort to overturn it from the people's representatives. If the death penalty is becoming so unpopular, why do so few (if any) political candidates make abolition a central focus of their platform?

The notion that the death penalty is per se unconstitutional in EVERY situation is absurd. The plain language of the 5th Amendment (passed at the same time as the 8th) and the 14th amendment (passed long after the 8th) both explicitly recognize the power of the government to impose the death penalty.

In any event, the notion that any law or practice is "moving toward unconstitutionality" is patently ridiculous. The Constitution is supposed to consist of ironclad, consistent limits on the power of government, regardless of what a majority of the population thinks. That is ultimately what protects freedom and civil liberties. If the Constitution is degenerating into nothing more than a glorified popularity contest, where "evolving standards of decency" overcome the plain text of the document, then I fear for the future of this republic.
Posted by policydebategod 9 years ago
policydebategod
This is a hard debate to win. But I'll be watching it. The definitions are hard to debate. Good luck CON.
Posted by symphonyofdissent 9 years ago
symphonyofdissent
I don't think that many anti-death penalty advocates are truly arguing that the death penalty is inherantly unconstitutional ( though it may violate their own states notion of cruel and unusual such as in New Jersey who recently got rid of the death penalty). Instead, most look to the lack of good empirical evidence in favor of it, the startling results of the innocence project (if one person is falsely executed the whole system become immoral) and the impossibly high cost of appeals and death row to prove their point.

To put it directly: Just because something is theoretically constitutional does not mean that we have to impose it.
Posted by AJmartinez 9 years ago
AJmartinez
im willing to take you up on this argument, but i have one question...are you for or against the death penalty?
Posted by arrivaltime 9 years ago
arrivaltime
I would take you up on this except I'll be gone for the entirety of my limit.

My issue with your argument is you assume ["due process of law" = A fair and impartial trial] is a reality.

Yet most of the people on death row are poor / minorities / certifiably insane and could not afford a defense that has DNA testing or expert witness. There's a huge difference from using a state provided attorney and a defense attorney from a private firm.
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