The Death Penalty is Unconstitutional

Given the framework you've established for the Constitutionality of the death penalty, I disagree that the death penalty as currently implemented meets the constitutional criteria permitting capital punishment. That said, I agree somewhat with the first argument you made, which centers on the current Supreme Court case Baze v. Rees which argues that lethal injection cannot guarantee a painless death so it is therefore unconstitutional given that it violates the Eighth Amendment (as you noted). Given the court's historical precedents governing executions, one could reasonably conclude that the court will rule capital punishment legal once a verifiably painless method of execution is developed. The substance with my disagreement with your claim that capital punishment is constitutional centers on the second argument you made – citing the Fifth Amendment which states "No person shall be held to answer for a capital, or otherwise infamous crime, … nor be deprived of life … without due process of law; …" Given the current state of the criminal justice system in the United States, I don't believe that defendants (especially those in capital cases) are given due process of law before they're sentenced in capital cases. Our criminal justice system is biased heavily against defendants who are poor and who are of minority status. It is not egalitarian, and the relative level of justice one gets from the system is commensurate with that individual's ability to buy it. There are reams of statistics as well as a variety of other indicators that attest to this fundamental lack of due process for many defendants in our criminal justice system. To wit: - Of the limited number of defendants who have had access to DNA evidence in their defense since 1989, there have already been 210 post-conviction DNA exonerations in the United States according to the Innocence Project. - Minorities comprise 43 percent of total executions since 1976, while comprising only around 25 percent of the population ("Race and the Death Penalty"—American Civil Liberties Union, February 26, 2003). - Since 1977, blacks and whites have been the victims of murders in almost equal numbers, yet 80 percent of the people executed in that period were convicted of murders involving white victims (Bureau of Justice Statistics). - Despite being only 12 percent of the population, blacks account for 43 percent of current death row inmates ("Death by Discrimination – The Continuing Role of Race in Capital Cases."—Amnesty International, April 24, 2003). - As the American Bar Association concluded in its 2004 report "Gideon's Broken Promise"; "Overall, our hearings support the disturbing conclusion that thousands of persons are processed through America's courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume apply to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States." - Spending by states on prosecutions and expert witnesses far surpasses the expenditures on indigent defense counsel and expert witnesses for the defense. The practical consequences of this reality are that of found guilty, those represented by publicly financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation 88 percent compared to 77% in Federal courts and 71% compared to 54% in the most populous counties." Further, there are a number of institutional factors that end up having an effect on the application of the death penalty; - The United States relies too heavily on plea bargaining, which is not only an incentive for the innocent to plead guilty, but is also an incentive for prosecutors to overcharge defendants (with the goal of enticing them to plead to lesser charges). - Many of the judges in our judicial system are elected to their posts. This means that the pressure frequently exists to rule in favor of the death penalty (regardless of the actual facts of the case and especially around election time) out of fear of public reprisal for being perceived to be soft on crime. A second argument about the constitutionality of the death penalty has to do with the case of Trop v. Dulles in 1958 in which the Supreme Court concluded that the Eighth Amendment contained in it an "evolving standard of decency that marked the progress of a maturing society." Based on that precedent, it is reasonable to conclude that the relative constitutionality of capital punishment is based solely on the willingness of the citizens of the US to impose it. As Gallup Polls attest, support for Capital punishment has continued to decline over the past decade or so as DNA evidence has continued to illustrate the numerous flaws in our justice system. Moreover, the more people learn about the inequities in the justice system – the more they tend to oppose capital punishment. So it follows that the death penalty must be moving toward unconstitutionality (if it isn't there already). Finally, I offer what I believe to be a novel argument that I don't think I've yet seen in most debate forums: capital punishment is unconstitutional because, as the Supreme Court has held in Ford v. Wainwright – it violates the Eighth Amendment to execute the insane. My logic is two-part; 1) as the Supreme Court has established, executing the criminally-insane violates the Eighth Amendment as it is cruel and unusual given that it is "executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life," …2) I would posit that anyone and everyone who is capable of committing a heinous enough violent crime as to render themselves eligible for capital punishment prosecution meets the criteria to qualify as insane … therefore, I argue that the death penalty is unconstitutional.