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What's Wrong with Our Death Penalty Jurisprudence?

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The text of the Constitution explicitly contemplates capital punishment, and the Eighth Amendment was not understood by its authors as banning it.  Instead, the purpose of the Eighth Amendment was to ban particularly vile ways of imposing it, or other punishments, such as disembowling and burning at the stake.

Q:  So why have we developed a jurisprudence in which the Supreme Court views itself as empowered to ban capital punishment in one class of cases or another, or, indeed, to ban it altogether, see Furman v. Georgia?

A:  Because the Court, in disregard of the limited and strictly judicial function assigned to it by the Constitution, has decided that it should become the arbiter of when there is a "national consensus" against capital punishment, or against various applications of it.

One can scarcely imagine a job for which the Court is less suited either by its capabilities or  --  and more importantly  --  its Constitutional role.  Has it dawned on anyone that the discernment of a national consensus on questions of criminal punishment is quintessentially a job for the elected branches? 

Well yes, it has.  It has dawned on the brilliant Richard Epstein.  His article, well worth the time to read  it all, says, inter alia, this:

 

A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens' argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.

In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.

Taken as a whole, what is so troublesome about Justice Stevens' general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required...

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