The Constitution Authorizes the Death Penalty

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The Constitution Authorizes the Death Penalty

Ernest van den Haag

In the following excerpt Ernest van den Haag asserts that the death penalty is constitutional in light of the Eighth, Fifth, and Fourteenth Amendments. Van den Haag first concedes that under the Eighth Amendment punishments must mesh with society's evolving standards (as ruled in the Supreme Court case Trop v. Dulles, 1958). However, he insists that this fact does not render the punishment unconstitutional. He points out that because the Constitution specifically refers to the deprivation of life under the Fifth Amendment, the penalty is authorized. To declare the penalty unconstitutional, without altering the Constitution itself, would render the Constitution a superfluous and meaningless document. Next, he states that both discrimination and "chanciness" are always factors in upholding the law, so it is unfair to single out capital punishment alone for abolition on these grounds. Finally, van den Haag states that proportionality, or the idea that similar crimes should receive similar punishments, is not a constitutional guarantee. Therefore, arguments that the penalty should be abolished because not all murders result in a death sentence should be disregarded. Van den Haag is a proponent of the death penalty and has written numerous books and articles on the subject.


Ernest van den Haag, "The Death Penalty Once More," University of California–Davis Law Review, vol. 18, Summer 1985, pp. 957–64. Copyright © 1985 by the University of California. Reproduced by permission.

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The fifth amendment, passed in 1791, states that "no person shall be deprived of life, liberty, or property, without due process of law." Thus, with "due process of law," the Constitution authorizes depriving persons "of life, liberty or property." The fourteenth amendment, passed in 1868, applies an identical provision to the states. The Constitution, then, authorizes the death penalty. It is left to elected bodies to decide whether or not to retain it.

The eighth amendment, reproducing almost verbatim a passage from the English Bill of Rights of 1689, prohibits "cruel and unusual punishments." This prohibition was not meant to repeal the fifth amendment since the amendments were passed simultaneously. "Cruel" punishment is not prohibited unless "unusual" as well, that is, new, rare, not legislated, or disproportionate to the crime punished. Neither the English Bill of Rights, nor the eighth amendment, hitherto has been found inconsistent with capital punishment.

Evolving Standards Do Not De-Authorize Death

Some commentators argue that, in Trop v. Dulles [1958], the Supreme Court indicated that "evolving standards of decency that mark the progress of a maturing society" allow courts to declare "cruel and unusual," punishments authorized by the Constitution. However, Trop was concerned with expatriation, a punishment that is not specifically authorized by the Constitution. The death penalty is. Trop did not suggest that "evolving standards" could de-authorize what the Constitution repeatedly authorizes. Indeed, Chief Justice [Earl] Warren, writing for the majority in Trop, declared that "the death penalty . . . cannot be said to violate the constitutional concept of cruelty." Furthermore, the argument based on "evolving standards" is paradoxical: the Constitution would be redundant if current views, enacted by judicial fiat, could supersede what it plainly says. If "standards of decency" currently invented or evolved could, without formal amendment, replace or repeal the standards authorized by the Constitution, the Constitution would be superfluous.

It must be remembered that the Constitution does not force capital punishment on the population but merely authorizes it. Elected bodies are left to decide whether to use the authorization. As for "evolving standards," how could courts detect them without popular consensus as a guide? Moral revelations accepted by judges, religious leaders, sociologists, or academic elites, but not by the majority of voters, cannot suffice. The opinions of the most organized, most articulate, or most vocal might receive unjustified deference. Surely the eighth amendment was meant to limit, but was not meant to replace, decisions by the legislative branch, or to enable the judiciary to do what the voters won't do. The general consensus on which the courts would have to rely could be registered only by elected bodies. They favor capital punishment. Indeed, at present, more than seventy percent of the voters approve of the death penalty. The state legislatures reflect as much. Wherefore, the Supreme Court, albeit reluctantly, rejected abolition of the death penalty by judicial fiat. This decision was subsequently qualified by a finding that the death penalty for rape is disproportionate to the crime, and by rejecting all mandatory capital punishment.

There Will Always Be Chanciness in Capital Punishment

Laws that allowed courts too much latitude to decide, perhaps capriciously, whether to actually impose the death penalty in capital cases also were found unconstitutional [Furman v. Georgia, 1972]. In response, more than two-thirds of the states have modified their death penalty statutes, listing aggravating and mitigating factors, and imposing capital punishment only when the former outweigh the latter. The Supreme Court is satisfied that this procedure meets the constitutional requirements of non-capriciousness [Gregg v. Georgia, 1976]. However, abolitionists are not.

In Capital Punishment: The Inevitability of Caprice and Mistake, Professor Charles Black contends that the death penalty is necessarily imposed capriciously, for irremediable reasons. If he is right, he has proved too much, unless capital punishment is imposed more capriciously now than it was in 1791 or 1868, when the fifth and fourteenth amendments were enacted. He does not contend that it is. Professor Black also stresses that the elements of chance, unavoidable in all penalizations, are least tolerable when capital punishment is involved. But the irreducible chanciness inherent in human efforts does not constitutionally require the abolition of capital punishment, unless the framers were less aware of chance and human frailty than Professor Black is. . . .

Considering Discrimination and the Death Penalty

Sociologists have demonstrated that the death penalty has been distributed in a discriminatory pattern in the past: black or poor defendants were more likely to be executed than equally guilty others. This argues for correction of the distributive process, but not for abolition of the penalty it distributes, unless constitutionally excessive maldistribution ineluctably inheres in the penalty. There is no evidence to that effect. Actually, although we cannot be sure that it has disappeared altogether, discrimination has greatly decreased compared to the past.

However, recently the debate on discrimination has taken a new turn. Statistical studies have found that, ceteris paribus [all things being equal], a black man who murders a white has a much greater chance to be executed than he would have had, had his victim been black. This discriminates against black victims of murder: they are not as fully, or as often, vindicated as are white victims. However, although unjustified per se, discrimination against a class of victims need not, and here does not, amount to discrimination against their victimizers. The pattern discriminates against black murderers of whites and for black murderers of blacks. One may describe it as discrimination for, or discrimination against, just as one may describe a glass of water as half full or half empty. Discrimination against one group (here, blacks who kill whites) is necessarily discrimination in favor of another (here, blacks who kill blacks).

Most black victims are killed by black murderers, and a disproportionate number of murder victims is black. Wherefore the discrimination in favor of murderers of black victims more than offsets, numerically, any remaining discrimination against other black murderers.

Comparative Excessiveness: Equality and Justice Are Not the Same

Recently lawyers have argued that the death penalty is unconstitutionally disproportionate if defendants, elsewhere in the state, received lesser sentences for comparable crimes. But the Constitution only requires that penalties be appropriate to the gravity of the crime, not that they cannot exceed penalties imposed elsewhere. Although some states have adopted "comparative excessiveness" reviews, there is no constitutional requirement to do so.

Unavoidably, different courts, prosecutors, defense lawyers, judges and juries produce different penalties even when crimes seem comparable. Chance plays a great role in human affairs. Some offenders are never caught or convicted, while others are executed; some are punished more than others guilty of worse crimes. Thus, a guilty person, or group of persons, may get away with no punishment, or with a light punishment, while others receive the punishment they deserve. Should we let these others go too, or punish them less severely? Should we abolish the penalty applied unequally or discriminatorily?

The late Justice [William O.] Douglas [in Furman] suggested an answer to these questions:

A law that . . . said that blacks, those who never went beyond the fifth grade in school, those who made less than $3,000 a year, or those who were unpopular or unstable should be the only people executed [would be wrong]. A law which in the overall view reaches that result in practice has no more sanctity than a law which in terms provides the same.

Justice Douglas' answer here conflates an imagined discriminatory law with the discriminatory application of a non-discriminatory law. His imagined law would be inconsistent with the "equal protection of the laws" demanded by the fourteenth amendment, and the Court would have to invalidate it ipso facto. But discrimination caused by uneven application of non-discriminatory death penalty laws may be remedied by means other than abolition, as long as the discrimination is not intrinsic to the laws.

Consider now, albeit fleetingly, the moral as distinguished from the constitutional bearing of discrimination. Suppose guilty defendants are justly executed, but only if poor, or black and not otherwise. This unequal justice would be morally offensive for what may be called tautological reasons. If any punishment for a given crime is just, then a greater or lesser punishment is not. Only one punishment can be just for all persons equally guilty of the same crime. Therefore, different punishments for equally guilty persons or group members are unjust: some offenders are punished more than they deserve, or others less.

Still, equality and justice are not the same. "Equal justice" is not a redundant phrase. Rather, we strive for two distinct ideals, justice and equality. Neither can replace the other. We want to have justice and, having it, we want to extend it equally to all. We would not want equal injustice. Yet, sometimes, we must choose between equal injustice and unequal justice. What should we prefer? Unequal justice is justice still, even if only for some, whereas equal injustice is injustice for all. If not every equally guilty person is punished equally, we have unequal justice. It seems preferable to equal injustice—having no guilty person punished as deserved. Since it is never possible to punish equally all equally guilty murderers, we should punish, as they deserve, as many of those we apprehend and convict as possible. Thus, even if the death penalty were inherently discriminatory—which is not the case—but deserved by those who receive it, it would be morally just to impose it on them. If, as I contend, capital punishment is just and not inherently discriminatory, it remains desirable to eliminate inequality in distribution, to apply the penalty to all who deserve it, sparing no racial or economic class. But if a guilty person or group escaped the penalty through our porous system, wherein is this an argument for sparing others?

If one does not believe capital punishment can be just, discrimination becomes a subordinate argument, since one would object to capital punishment even if it were distributed equally to all the guilty. If one does believe that capital punishment for murderers is deserved, discrimination against guilty black murderers and in favor of equally guilty white murderers is wrong, not because blacks receive the deserved punishment, but because whites escape it.

Consider a less emotionally charged analogy. Suppose traffic police ticketed all drivers who violated the rules, except drivers of luxury cars. Should we abolish tickets? Should we decide that the ticketed drivers of nonluxury cars were unjustly punished and ought not to pay their fines? Would they become innocent of the violation they are guilty of because others have not been ticketed? Surely the drivers of luxury cars should not be exempted. But the fact that they were is no reason to exempt drivers of nonluxury cars as well. Laws could never be applied if the escape of one person, or group, were accepted as grounds for not punishing another. To do justice is primarily to punish as deserved, and only secondarily to punish equally.

Guilt is personal. No one becomes less guilty or less deserving of punishment because another was punished leniently or not at all. That justice does not catch up with all guilty persons understandably is resented by those caught. But it does not affect their guilt. If some, or all, white and rich murderers escape the death penalty, how does that reduce the guilt of black or poor murderers, or make them less deserving of punishment, or deserving of a lesser punishment?

Some lawyers have insisted that the death penalty is distributed among those guilty of murder as though by a lottery and that the worst may escape it. They exaggerate, but suppose one grants the point. How do those among the guilty selected for execution by lottery become less deserving of punishment because others escaped it? What is wrong is that these others escaped, not that those among the guilty who were selected by the lottery did not.

Those among the guilty actually punished by a criminal justice system unavoidably are selected by chance, not because we want to so select them, but because the outcome of our efforts largely depends on chance. No murderer is punished unless he is unlucky enough both to be caught and to have convinced a court of his guilt. And courts consider evidence not truth. They find truth only when the evidence establishes it. Thus they may have reasonable doubts about the guilt of an actually guilty person. Although we may strive to make justice as equal as possible, unequal justice will remain our lot in this world. We should not give up justice, or the death penalty, because we cannot extend it as equally to all the guilty as we wish. If we were not to punish one offender because another got away because of caprice or discrimination, we would give up justice for the sake of equality. We would reverse the proper order of priorities.

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The Constitution Authorizes the Death Penalty

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The Constitution Authorizes the Death Penalty