On the September night that the state of Georgia put Troy Davis to death, a crowd of several hundred gathered at the Supreme Court in Washington to protest America's continued practice of capital punishment. But they were in the wrong place. The protesters should have assembled 600 miles southeast, in Atlanta. The Constitution does not empower the Supreme Court to proscribe capital punishment or to regulate it out of existence, and those who ignore that point have made it increasingly expensive and less effective.
Every legal argument against the death penalty begins with the 8th or 5th Amendment. The 8th bars "cruel and unusual punishments," and the 5th guarantees "due process of law" before a person can be "deprived of life, liberty or property." But there is no serious constitutional argument against the death penalty. The 5th Amendment itself recognizes the existence of "capital" crimes, and executions were common before and after the Constitution's framing. No framer ever suggested that the Constitution divested states of this part of their historical punishment power, nor has there been a constitutional amendment that does so.
Matters not addressed by the Constitution are left to the democratic process and, in the main, to the states. As in Europe and Canada, a solid majority of American citizens supports the death penalty, believing it to serve both as a deterrent and an appropriate societal response to particularly heinous crimes. Unlike in Europe and Canada, however, U.S. courts and political leaders have not overridden public opinion to end the practice.
But they have tried. At the tail end of the criminal rights revolution of the 1960s and 1970s, the Supreme Court put a halt to all executions. While the public acquiesced or supported other innovations in criminal law, such as Miranda warnings, the death penalty moratorium was less well received. Pushed by their citizens, states passed new laws requiring juries to find specific "aggravating factors" justifying the death penalty, and in 1976, the court allowed executions to resume on that basis.
Those laws were early additions to the elaborate legal superstructure that has been erected around capital punishment. Since then, the courts have gradually "discovered" additional capital-punishment-related constitutional requirements. These include exhaustive prescriptions for trials involving capital cases, performance standards for defense attorneys representing those facing the death penalty, and limits on who may face execution — not rapists, not minors, not those with low IQs. Every single one is now the subject of endless litigation.
The result has been to narrow the death penalty's availability while enormously extending the burden of imposing the sentence. Appeals and post-conviction reviews regularly take a decade or more and can cost millions in legal expenses. States seek the death penalty more rarely than in the past, and the number of executions is also in decline.
And that, say those pushing today to end the death penalty, actually renders it unconstitutional. Because it is so rarely carried out, they argue, its application is inevitably arbitrary and fundamentally incompatible with the requirements of due process. But it's an absurd leap of logic to say that because many of those eligible for and deserving of the death penalty aren't executed, those who are actually put to death — after all the elaborate safeguards and procedures — have been subjected to unlawful punishment or denied due process.
The dry term "due process" does not even begin to describe the path to execution. First there is a trial, with a separate "penalty phase" after conviction. Then there are appeals in state courts, and perhaps a request that the Supreme Court take the case. Then state post-conviction proceedings, followed by appeals, followed by habeas review in a federal court, appeals, then another request to the Supreme Court. In all, the average case is likely to be reviewed by various courts 10 times — and that's not even counting the inevitable last-minute habeas filings that keep judges up late at night or requests for executive clemency, which has fallen into unfortunate disuse as courts usurped the right of reprieve.
Troy Davis even received a rare extra round of review after he petitioned the Supreme Court directly for relief. The result was a 174-page decision that concluded flatly, "Mr. Davis is not innocent."
Unable to convince the public on the merits of abolition, death-penalty opponents have a new strategy, attacking capital punishment on fiscal grounds. That is the basis for a ballot initiative to stop executions in California that backers of a capital punishment ban hope to qualify for the November 2012 ballot. They do have half a point: Litigation has driven up the cost of executions, and delays and expense mean that states don't always seek death for the worst of the worst.
But this argument is beyond hypocritical, coming from the same groups that have thrown up every possible roadblock to timely and efficient administration of capital punishment.
If these groups took their fiscal rhetoric seriously, they would do better to acknowledge the Constitution's text and history and drop their endless campaigns to litigate the death penalty out of existence, which cost taxpayers millions to defend. The public should not be denied the choice that the Constitution allows: an affordable and effective ultimate punishment.
David B. Rivkin Jr. and Andrew Grossman are lawyers in Washington, D.C. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.