Sparks Commentary: Actually, the death penalty IS constitutional (as the Fifth Amendment makes clear)

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

- Coffin et al v. United States (1895), the Supreme Court case which codified the presumption of innocence for people accused of crimes

People are innocent until proven guilty, and do not have to "prove" their innocence

There's a saying in America that is often quoted in these contexts, which is that people are "innocent until proven guilty." This saying is so familiar to Americans that we often take it for granted, I think. We may not always realize how rare it is in the world to have this kind of default assumption. In this country, the burden of proof is on the prosecution - or in civil cases, the "plaintiff" - rather than the defendant. The defendant is not even required to open his or her mouth to "prove" his or her own innocence. This is not written explicitly into our Constitution, but it is implied by a number of amendments, and was codified by the Supreme Court case quoted above. Moreover, a jurist from a previous century named Sir William Blackstone - a man who is quoted in the Federalist Papers - proclaimed that "the law holds, that it is better that ten guilty persons escape than one innocent suffer." (Source: Blackstone's "Commentaries," Book IV, Chapter 27) This doctrine is sometimes known as "Blackstone's formulation" or "Blackstone's Ratio."

William Blackstone

William Blackstone thought it "better that ten guilty persons escape than one innocent suffer"

John Adams expounded on "Blackstone's Ratio" in the "Boston Massacre" trial, when he said that "We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever." (Source: Adams' Argument for the Defense, 3-4 December 1770) When a person really is guilty of a crime (as sometimes happens), this can still make it somewhat difficult to bring criminals to justice, of course. Thus, the police force and prosecutors have to possess a high degree of skill to provide the necessary proof of these actions. But if these protections are not in place (and many countries don't have them), then innocent people are vulnerable to an arbitrary tyranny that can punish them at will; and there are few things that Americans fear more than an absolute government with unlimited power. Thus, there must be a balancing act in any free country between individual protections and criminal justice, where the people are protected against both unlimited government and violent criminals. Thus, it might be helpful to go over some of these constitutional protections from our Bill of Rights.

John Adams, the defense attorney in the "Boston Massacre" trial

Fifth Amendment requires due process of law, without double jeopardy or forced confessions

The Bill of Rights says that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (Source: Fifth Amendment) The part about being "compelled in any criminal case to be a witness against [one's self]" was a reaction to how confessions had sometimes been obtained through torture in previous generations, and were thus unreliable as actual indicators of the person's guilt. (We could not be sure, after all, that the accused was confessing because they were actually guilty, or because they just wanted to stop the torture from continuing - something that had made all such confessions suspect, and which are thus forbidden in America by this strict prohibition.) The refusal to testify against oneself is known in America as "pleading the Fifth," because of its origins in the Fifth Amendment that I just quoted here. This concept is well-established in American culture by this phrase.

Police read "Miranda rights" to a fugitive felon, 1984

Fifth Amendment also explicitly authorizes the death penalty ....

One should also note that the Fifth Amendment explicitly authorizes the death penalty (in at least some cases) in three very important ways. One is that it has some language saying "nor shall any person ... be twice put in jeopardy of life or limb," which only prohibits "jeopardy of life" two times (or in other words, "twice" per person per offense). Thus it states that you can put them in "jeopardy of life" at least one time (or in other words, once per person per offense). ("Jeopardy of life," of course, is an explicit reference to the death penalty.) There is even stronger evidence of this later on, when the amendment says that "nor [shall any person] be deprived of life, liberty, or property, without due process of law" - thus implying that if there is "due process of law," a person may be "deprived of life" anytime the due process is actually applied. As with "jeopardy of life," "deprived of life" is an explicit reference to the death penalty. This amendment also authorizes the death penalty yet again in an earlier clause by saying that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury" - thus explicitly authorizing the classification of "capital" crimes on a "presentment or indictment of a grand jury." This is the standard procedure for capital punishment in the United States, in fact, and part of the due process of law. "Capital punishment" is an alternative phrase for the death penalty in the English language, and "capital crimes" is an alternative phrase for those crimes eligible to be punished by it.

... in at least some cases ...

The "due process" part requires, of course, that the laws authorizing it be actually on the books; and does not require the death penalty to be used when they are not on the books. This is fortunate, when you consider that the death penalty has been sometimes used elsewhere for various minor offenses, or even for criticizing the government. This would be a violation of the First Amendment in this country, because of its protection for freedom of speech and freedom of the press. (That's a subject for another post, I suppose, because the First Amendment is worth a post all by itself, and covers too much ground to be addressed here. I have thus done a separate post on the First Amendment elsewhere.) Nonetheless, the use of the death penalty would seem to be clearly constitutional for the reasons stated here, whether or not one approves of its application to any particular circumstance. If one disagrees with this doctrine, I will present further evidence of this in the next paragraph, refuting a commonly-cited objection to the death penalty's constitutionality.

Execution of some of Abraham Lincoln's assassins, 1865

... and the clause about "cruel and unusual punishments" actually isn't seen as a barrier to this

The Eighth Amendment to the United States Constitution says that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Source: Eighth Amendment) Some have interpreted the "cruel and unusual punishments" part as prohibiting the death penalty, of course, as inherently "unconstitutional." They argue that this would supersede any explicit authorization of it in the Fifth Amendment, because the Eighth Amendment "came after" the Fifth Amendment. However, the clear fact is that the ten "Bill of Rights" amendments were all passed simultaneously - specifically, on December 15th, 1791. This means that the Fifth and Eighth Amendments were among those passed at this same specific moment. Thus, the Eighth Amendment's prohibition on "cruel and unusual punishments" cannot be taken as superseding the authorization of the death penalty in the Fifth Amendment, as the critics of the death penalty have sometimes claimed. The arguments against the death penalty would thus seem to impose some modern definitions of what constitutes "cruel[ty]" on the Constitution, which the amendment's authors would clearly not have held when it was used to punish the most serious crimes. Using the death penalty for some minor offenses would indeed be "cruel and unusual" even to the amendment's authors; but not for very heinous offenses like treason and murder, where they clearly saw it as permissible - perhaps even desirable in many cases. (One may "prohibit" the federal use of the death penalty by an act of Congress anytime, but not by a supposed "violation" of the Constitution which is deemed "untouchable" by this same Congress. The death penalty is explicitly authorized by the Constitution in three very important ways, as noted earlier, when the Congress deems it necessary.)

Confederate troops marching in Maryland, 1862 (people who committed actual treason, as defined by the Constitution)

The Constitution has its own definition of "treason"

Since treason is sometimes a capital crime, it might be helpful here to note the Constitution's (rather narrow) definition of "treason," written explicitly. This is different from the definitions found in some other countries. It also provides a lot of protection for American citizens. Some other countries define "treason" as "criticism of the government" or "criticism of the state religion," or any number of other things that would be considered "rights" under American law (and inalienable rights at that). Because of past experience with these broad definitions of treason (including in the mother country of Great Britain), the Constitution says that "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." (Source: Article 3, Section 3, Paragraph 1) The Constitution further clarified that "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." (Source: Article 3, Section 3, Paragraph 1) It would be difficult to overstate the importance of this provision, since it codified some very clear limits to the loyalty that the government can expect from its citizens. Thus, it limited the government's power by so doing. The Constitution further said that "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." (Source: Article 3, Section 3, Paragraph 2) The "corruption of blood" part just prevents people from being legally punished for what their ancestors did (or in some cases, were merely accused of doing). The "forfeiture" part prevents the government from construing rights as having been "forfeit[ed] ... [outside] the life of the person attainted" (or in other words, after the person dies). This definition obviously protects our rights in the most fundamental of ways.

James Madison, the Father of the Constitution and the author of the Bill of Rights

Rights may not be withheld merely because they aren't listed in the Bill of Rights

At the time this federal "Bill of Rights" was first proposed in America, some actually argued that it would be dangerous to have such a "bill of rights" in this country; since any right not listed in such a bill could be construed "not to exist" by the overly zealous interpreters of later generations. Thus, the Constitution threw in a Ninth Amendment that addressed this concern (written by James Madison). The amendment said that "The enumeration [or "listing"] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Source: Ninth Amendment) In other words, rights may not be withheld merely because they aren't listed in the Constitution. Thus the concern of those opposing the Bill of Rights was addressed, and this criticism was swept aside as "no longer relevant." Although it may have actually helped the Bill of Rights in the long run, by removing a potentially fatal weakness it had. This could have limited one's civil rights to those listed in the Constitution and no more, which would have been somewhat dangerous, and would have been terrible if implemented. Thus, it is quite clearly prohibited by the Constitution. This expands the scope of our rights to truly astonishing levels, and makes sure that they are not limited by an excessively narrow interpretation of the country's supreme laws.

Fourteenth Amendment in the national archives, page 1 of 2

Fourteenth Amendment applies other amendments to states (and not just federal government)

With this in mind, I should mention that the "Bill of Rights" amendments were once understood to apply only to the federal government, rather than to the states as well. There was a particular problem, I should note here, when you consider that the states had (at times) denied these protections to African Americans (and others), even after the abolition of slavery by the Thirteenth Amendment. Thus, the Bill of Rights was later applied to the states as well by the Fourteenth Amendment, ratified in 1868. The Fourteenth Amendment first prefaced this application by clarifying that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (Source: Section 1 of the amendment) Thus they clarified that African Americans who had been "born ... in the United States" were citizens under the law. I should also clarify that "naturaliz[ation]" is a word that means "becoming a citizen." With this in mind, the original Constitution had said that the federal Congress shall have the power to “establish an uniform rule of naturalization” (Source: Article 1, Section 8, Paragraph 4), which put the creation of immigration laws under federal control. Another reason that I mention this is to transition into discussing another major part of the Fourteenth Amendment, which is related to this. With these clarifications in mind, I will now quote the part of the Fourteenth Amendment that applies the Bill of Rights to the states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Source: Section 1 of the amendment) The phrase about "depriv[ing] any person of life" is another explicit reference to the death penalty, which authorizes capital punishment by the states when there is "due process of law." Equally importantly, the Fourteenth Amendment later added that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (Source: Section 5 of the Amendment)

George Mason, an advocate for a federal Bill of Rights

Patrick Henry, an advocate for a federal Bill of Rights

Conclusion: The Bill of Rights has some important protections for our basic rights

Thus, in any number of ways, the Constitution protects our rights under American law. It keeps the police and courts from doing any number of things that are "improper" under our current system of laws - or any system of laws, for that matter. The original Constitution had some important provisions related to this particular subject, I should reiterate here; but the bulk of them come from the "Bill of Rights" protections for the accused. This is a testament to how important it is in our country, and what a marvelous and powerful addition to the Constitution it really was.

What are the "Miranda rights"?

Americans have long been accustomed to seeing the "Miranda rights" read to accused persons in various TV shows, especially "cop" shows. The phrase comes from a famous decision by the U. S. Supreme Court called Miranda v. Arizona (1966), which established the "Miranda warnings" for accused persons. As Chief Justice William H. Rehnquist noted in a later decision called Dickerson v. United States (2000), "the [Miranda] warnings have become part of our national culture." They're repeated virtually anytime a character is arrested in these TV shows, and are thus easy to remember for a majority of Americans.

Because of this, it might be helpful to quote the relevant portion of this decision, which is so important for American case law. The decision says that "the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him." - Miranda v. Arizona (1966), Syllabus holding 1.(d)

When these requirements are not followed, the evidence from such interrogations may be ruled "inadmissible" by the courts and thrown out.

This is a continuation of a previous post. For the previous post, click here.

If you liked this post, you might also like:

The tyrannical police state: The worst nightmare of the Founding Fathers

The Bill of Rights: Historical context and strict construction

The First Amendment: Protecting religion from government (and not the other way around)

The First Amendment: Protecting freedom of speech and freedom of the press

The Second Amendment: Protecting the gun rights "of the people"

Part of a series about

The Constitution