The Death Penalty and the Fifth Amendment
Joseph Blocher
The debate on whether capital punishment is constitutional or not has been on-going for many years. On the pro death penalty side, they argue that the 5th amendment “explicitly contemplates” the death penalty, and in doing so makes capital punishment constitutional. And then there are those against the death penalty, who believe that even though the founding fathers believed at the time the death penalty was permissible, it does not mean that it is a permanent legal punishment immune to constitutional challenge. They also believe that the death penalty constitutes cruel and unusual punishment, which clearly violates the provision in the eighth amendment protecting citizens against such punishments, therefore making capital punishment unconstitutional. So, if you concede that the death penalty is considered cruel and unusual punishment, you therefore must acknowledge that the death penalty is unconstitutional as it clearly violates the eighth amendment, and you can no longer use the fifth amendment to defend the death penalty. However, in 1976, the Supreme Court ruled in Gregg v Georgia that if states follow the previous guidelines set in place in 1972 in Furman v. Georgia, that capital punishment is constitutional. However, since then, three of the Supreme Court judges who voted in favor of capital punishment have changed their stance and stated that they believe capital punishment is in fact considered cruel and unusual punishment. This basically makes the fifth amendment a piss poor defense of the death penalty, however the inverse is just as poor. “To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so.” (Blocher 278). Nonetheless, to this day whether the constitutional allows or prohibits the death penalty is being debated. Justice Blackmun, a skeptic of the death penalty, has even stated “the Constitution appears to permit[] the penalty of death.”, but then also said “From this day forward, I no longer shall tinker with the machinery of death.”
Thoughts for later: If those justices changed their opinion on the death penalty being cruel and unusual punishment, why has Gregg v. Georgia not been overturned, and why has the death penalty not been ruled cruel and unusual punishment? If the constitution is not specific at all about whether the death penalty is legal or not, why hasn’t a concrete amendment been added to the constitution stating where it’s legal or not, and if it is, what provisions must be set for states to allow the punishment? I
Joseph Blocher
The debate on whether capital punishment is constitutional or not has been on-going for many years. On the pro death penalty side, they argue that the 5th amendment “explicitly contemplates” the death penalty, and in doing so makes capital punishment constitutional. And then there are those against the death penalty, who believe that even though the founding fathers believed at the time the death penalty was permissible, it does not mean that it is a permanent legal punishment immune to constitutional challenge. They also believe that the death penalty constitutes cruel and unusual punishment, which clearly violates the provision in the eighth amendment protecting citizens against such punishments, therefore making capital punishment unconstitutional. So, if you concede that the death penalty is considered cruel and unusual punishment, you therefore must acknowledge that the death penalty is unconstitutional as it clearly violates the eighth amendment, and you can no longer use the fifth amendment to defend the death penalty. However, in 1976, the Supreme Court ruled in Gregg v Georgia that if states follow the previous guidelines set in place in 1972 in Furman v. Georgia, that capital punishment is constitutional. However, since then, three of the Supreme Court judges who voted in favor of capital punishment have changed their stance and stated that they believe capital punishment is in fact considered cruel and unusual punishment. This basically makes the fifth amendment a piss poor defense of the death penalty, however the inverse is just as poor. “To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so.” (Blocher 278). Nonetheless, to this day whether the constitutional allows or prohibits the death penalty is being debated. Justice Blackmun, a skeptic of the death penalty, has even stated “the Constitution appears to permit[] the penalty of death.”, but then also said “From this day forward, I no longer shall tinker with the machinery of death.”
Thoughts for later: If those justices changed their opinion on the death penalty being cruel and unusual punishment, why has Gregg v. Georgia not been overturned, and why has the death penalty not been ruled cruel and unusual punishment? If the constitution is not specific at all about whether the death penalty is legal or not, why hasn’t a concrete amendment been added to the constitution stating where it’s legal or not, and if it is, what provisions must be set for states to allow the punishment? I
Works Cited:
Blocher, Joseph. "The Death Penalty and the Fifth Amendment." Northwestern University Law Review, vol. 111, no. 1, 15 Nov. 2016, pp. 275-293. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=120553778&site=ehost-live.
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