FIRST, it amazes me how Congress can act so lawlessly, because we are in fact under a treaty obligation not to impose the death penalty. We acceded to the Second Optional Protocol to the Covenant on Civil and Political Rights that prohibits us from imposing the death penalty.
If we disregard treaties in cavalier fashion like this, should we be surprised when other States with more muscle than we have trample our treaty-guaranteed and protected rights? And there is no denunciation of human rights treaties.
Second, the Constitution itself forbids “cruel and unusual” punishment. That it allows the death penalty “for heinous crimes” does not cancel the fundamental prohibition against cruel punishment. It is cruel for a person to know that on a given day, at a given hour, his life will be calculatedly taken from him by the State. It is cruel to make him bide the hours in fear, dread, trembling. It is cruel to escort him to the execution chamber there to face his death. Finally, there is no mode of execution that is not cruel. The very fact of execution is cruel. So the presumption of the allowance for the death penalty in our Constitution is that it can be executed in a non-cruel manner, but if no non-cruel means can be found, then there is no permissible way of executing the death sentence.
Third, there is injustice visited on the family of the condemned person, especially if he or she has children. The family was not part of the criminal act, nor were the children – and yet their suffering is immense, incalculable and cruel: as they await their loved one’s execution and finally witness or suffer with him or her through her death throes. And they will, for their lifetimes and even beyond, bear the stigma of being parents or children or siblings or relatives of an executed convict.
Fourth, that the condemned person may have acted cruelly and remorselessly is no reason for the State to act with like cruelty. The death penalty is stylized vengeance, and vengeance is always condemnable because it perpetuates the cycle of violence, hatred and destructiveness that the law is meant to eradicate. By transferring the violence perpetrated by the offender to the violence perpetrated by the State through the death sentence, no progress is made. The cycle of violence continues.
Fifth, whether it is a deterrent or not is no argument for the death penalty. Quartering, disemboweling and mutilating a criminal are very strong deterrents, but our moral sense that has thankfully evolved forbids all this now. It is still good ethical teaching that the end does not justify the means.
Sixth, there is a problem with the judicial notion of “certitude”. “Truth” is what the evidence establishes, but the fact is that evidence can be conjured, testimony can be perjured – and it would be putting too much faith in the process of cross-examination to assume that every lie and liar is trapped at cross-examination. There are also some legal precepts that militate against the “certitude” of “judicial certitude.” Among these: The client is bound by the mistakes of his lawyer. Therefore, no matter that evidence should have been presented at trial that could have mitigated the culpability of the accused or even brought about an acquittal, if it is not raised at trial it cannot be introduced in the appeal, no matter that the omission is owed to counsel’s insouciance.
Second doctrine: When the trial court and the appellate court are in agreement as to the facts, the findings are controlling on the Supreme Court which is not a trier of fact. The trouble, however, is that when appeals are brought before the Court of Appeals, the usual retort given to challenges to the trial court’s findings of fact is: Between the trial court and the appellate court, the trial court is in a better position to observe the conduct and demeanor of the witness. So it is that inaccurate findings of fact become established truths – to the detriment of the convict.