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The death penalty: Is it still constitutionally legal?

A few things have enjoyed the ability to stir debate with equal extents of passionate support and passionate opposition. Death penalty rates high among this thing having stirred debate in political, legal, religious and public circles. Indeed, as many people as those who support death penalty oppose it using various justifications ranging from religious, moral to legal. In legal circles, death penalty has quite a number of people debating on its legality with those supporting it citing its deterrence ability as their main reason why they feel the practice I legal and should remain as such. On the other hand, opponents feel that death penalty undermines the constitutional right to life. With such battle within the legal circles, it would be interesting to find out whether there is any legal justification for the practice and everything goes back to the constitution. What is the constitutions take on death penalty? Is death penalty still constitutionally legal? The answer to this is subject to debate, but it seems the constitution supports death penalty.

The constitutionality of death penalty has been an issue of contentious debate for quite some time. In the United States of America, death penalty was considered constitutionally legal up to 1960s. Prior to the passing of the fifth, eighth, and fourteenth amendments to the US constitution, everybody considered death penalty legal and backed by the constitution (Herrmann 4). Arguments against the practice started emerging in the 1960s. Most arguments suggest that death penalty was inhumane. The felt that death penalty was a cruel and strange form of punishment, and this made it unconstitutional due to the provisions of the eight amendments . Abolitionists capitalised on the ruling of the Supreme Court in Trop v. Dulles in 1958 to challenge death penalty (Kommers 497). The Supreme Court in Top v. Dulles interpreted the eighth amendment to constitution stating that the amendment had an “evolving standard of decency that marked the progress of an evolving society.” (Kommers 497) Despite the fact that Trop v. Dulles case did not involve death penalty, and in fact was far from death penalty, the abolitionists capitalised on the interpretations of the eight amendment, and while applying the same logic used by the supreme court, went ahead to state the “in fact, the nation had progressed to a state of decency the could not tolerate the act of death penalty” (Kommers 497).

The abolitionist move was just the beginning of events that would cause heated debates on the legality of death penalty. As the 60s came to a closure, the Supreme Court started redesigning the administration of death penalty. These changes coincided with the Supreme Court presiding over to death penalty case in 1968. In the first case of US v. Jackson, the Supreme Court changed the handling of death penalty on kidnaping statute snapping the authority to pass death penalty from the jury. In the second case Witherspoon v. Illinois, the court’s decision set a precedence stating that jurors’ reservations were not grounds enough to deter death penalty (Foley 44). In fact, the Supreme Court made it possible for disqualification of juror based on a prosecutor’s irrevocable evidence that a juror had attitudes that would make them hesitant to give impartial verdicts on death penalty. The Supreme Court’s actions in these two cases were contrary to what the abolitionist desired. The Supreme Court not only upheld the legality of death penalty, it also ensured that criminals in death penalty cases would find it difficult to trick their way out.

The interpretation of the eight amendments to the constitution seemed a sure way to persuade legal institution from enforcing death penalty. The abolition brought issues of arbitrariness to the attention of the Supreme Court in the early 1970s, through the case of Furman v. Georgia (Del 28). The cases used the eight amendments to challenge the possibility of death penalty stating the capital cases frequently cause capricious and arbitrary sentencing.

Through a vote, the court held that Georgia capital punishment statutes had provisions that would lead to arbitrary sentencing of suspects. The court, therefore, found Georgia’s capital punishment cruel and strange, under the eighth amendments. Subsequently, the court neutralised 40 other capital punishment statutes in 40 other states which resulted in sparing of 629 death row convicts. This effectively made capital punishment illegal.

However, this did not end death penalty or the debate surrounding it. New legislation and statutes have been created and adopted as constitutional only to be thwarted later as unconstitutional. These events have also been confusing concerning the legality and constitutionality of death penalty. Despite the confusion, death penalty did not go away. While the abolitionists use the constitution to demonise it, proponents use the same constitution and always creatively come with new legislation to sustain the practice.

For over 200 year since the creation of the Americana constitution, the Supreme Court has always upheld and supported death penalty as constitutional. Death penalty was only considered unconstitutional between 1972 and 1976. Other than these years, the constitutional legality of death penalty has always been upheld. It surprising that the perceived constitutionality of death penalty continue to reign despite outright objection be part of the constitution, specifically the eight, fifth and fourteenth amendments (Herrmann 4). The 5th amendment states that “No person shall be deprived of life without a due process of the law. The 14th Amendment holds that “no state shall deprive any person of life without a due process of law”. On the other hand, the eighth amendment tackles issues of brutal and unusual punishment as well as capital punishment which are frequently practiced in several states across the country.

Clearly, the constitution still supports death penalty. It has supported death penalty since its inception, and the Supreme Court interpretations at different time have clearly expressed this constitutionality. Other the Supreme Court’s decision of 1972 which was changed in 1976 no decision has ever discouraged or stated that it is illegal. Most of the rulings were merely directions regarding capital punishments. They sought to ensure that capital punishments were conducted properly in line with the values and practices of the time.

In conclusion, death penalty is still constitutionally legal. The Supreme Court has repeatedly upheld it. Since the supreme is the highest organ in the nation that interprets the constitution, it arguable that its continuous clamour for death penalty is an indication that death penalty is constitutionally legal. Clearly the 5th amendment and 14th amendment that are considered to oppose death penalty do not entirely do so (Herrmann 4). The two amendments simply state how death penalty should be attained. Capital offense suspects must be given a fair trial before they are punished or released. If a suspect is found guilty there is no provision in the two amendments that protect them from execution. In fact, when suspects are sentenced to death through a due process, the provisions of the 5th and 14th amendments are satisfied (Herrmann, 4). This leaves the 8th amendment as the only provision within the constitution that discourages capital punishment. However, the amendment does not out rightly discourage capital punishment. In fact, the notion that the 8th amendment makes capital punishment unconstitutional is only inferred to the interpretation of the constitution by the Supreme Court. Therefore, death penalty is constitutionally legal, and all other provisions are merely guideline to the execution of the sentence.

Work Cited

Del, Carmen R. V, et al. The Death Penalty: Constitutional Issues, Commentaries and Case Briefs. Burlington: Elsevier Science, 2008. Print.

Foley, Michael A. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, Conn. [u.a.: Praeger, 2003. Print.

Kommers, Donald P, et al. American Constitutional Law: Essays, Cases, and Comparative Notes. Lanham: Rowman & Littlefield, 2004. Print.

Herrmann, Jacqueline. The History of the Death Penalty in the United States: Presented and analyzed on the basis of selected U.S. Supreme Court Cases. GRIN Verlag, 2008. Print

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