A police officer directs visitors to the U.S. Supreme Court building in 2015. (Jonathan Ernst/Reuters)

This is not jurisprudence but jurispretext.

The headlines say the justices of the Supreme Court are “openly feuding” and “sniping” at one another over the death penalty. What they are in fact doing is nibbling around the edges.

Some opponents of the death penalty wish to see the Supreme Court declare it unconstitutional, and they are not too picky about how that gets done: not jurisprudence but jurispretext.


The problem with that is that the Constitution itself categorically sanctions capital punishment, for instance by specifying in the Fifth Amendment certain limitations on the conditions in which a person may be “deprived of life.” Whatever “cruel and unusual punishment” means in the Eighth Amendment, no one involved in the drafting of that language or the ratification of the Constitution believed that it prohibited capital punishment. “We should not pretend the Constitution is silent or ambivalent about the basic existence of the practice,” writes Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court. “Like it or not, the death penalty is constitutional.”

The current Supreme Court action regarding the death penalty, from a legal point of view, amounts to little more than trivia. In some states, only prison employees may be present in the death chamber, which means that if there is a Christian or Muslim chaplain on the prison staff, he may be physically present, but a Buddhist or Zoroastrian may be denied similar consolation if there is no affiliated clergyman on the payroll. That case would be of scant interest if not for its intersection with the issue of capital punishment. Another case involves a man who suffers from a rare disease that, according to his lawyers, would cause him to endure horrifying pain if he were to be put to death via lethal injection. Likewise, that case has little to do with the merits or acceptability of capital punishment as such.

There is a long history of this sort of thing when it comes to the death penalty. The Furman case found the Supreme Court handing down a national moratorium on executions in an intellectually and legally incoherent decision — it was a 5–4 case with five different majority opinions — based on the nebulous considerations of arbitrariness and loosely defined “discrimination.”



Most of the popular arguments against the death penalty are like most investment advice and Republican campaign promises: I want to believe, and am inclined to do so, but they do not stand up to much scrutiny. It may very well be the case that an innocent man will be sentenced to death, but that also is an argument against incarceration, speeding tickets, and much else. An execution cannot be undone, but neither can the damage from 40 years’ wrongful incarceration. The irreversibility of the death penalty is an argument for prudence in its use, as indeed we must be prudent in all uses of state violence. It is not an argument against the thing itself. Neither is the related argument that the wealthy and well-connected tend to achieve better outcomes in capital cases than do the poor and the marginalized. There is little doubt that this accords with the facts on record — everybody hates lawyers until one is needed, and in a murder case, there is practically no expense that will not be endured — but, again, this is an argument for procedural reform rather than argument against a mode of punishment.

The myth that it is wildly more expensive to pursue a death-penalty case than to manage a lifelong incarceration would, even if it were true, be a sterile argument. There are many good occasions for the green eyeshades, but responding to murder or other heinous crimes is not one of them.


The fundamental obstacle to arguments against capital punishment is that it is not as a general matter unjust, though it may be unjustly applied in some particular case. Capital punishment is applied unevenly and in ways that often are perplexing, but it is applied relatively rarely, and it is applied in the context of a legal system that, whatever its faults, provides the accused with representation, procedural openness, a generous appellate process, and much more. Our prisons are a scandal, but the process by which offenders are remanded there is admirable, strange as that word may sound in this grim context. It is not perfect or free from abuse — including the willful abuses and occasional incompetence of police, investigators, and prosecutors, which are serious problems — but perfection is not the criterion of legitimacy or constitutionality.


There is a more straightforward case against the death penalty: that, on balance, it adds more violence and horror to our society than it is worth, that it does not bring out the best in us or in our institutions, that in our necessary pursuit of justice we need not see to it that the bitter cup is drained to the dregs in every instance, that we are better off showing mercy in this matter, and that what mercy entails is forbearance toward those who in fact deserve the worst that we might hand down.


But these are not questions for the Supreme Court. They are considerations for Congress and the states, which have the power to end the practice of capital punishment whenever they so choose. The Democrats who currently are in control of the House of Representatives could, if they had the courage of their convictions, make an issue of the death penalty in federal cases, and could probably count on the cooperation of at least a few Republicans in Congress and many more conservatives outside of elected office.

And it would be a far better thing to eliminate capital punishment on principle rather than on pretext.