CAPITAL PUNISHMENT AND DUE PROCESS

Capital Punishment

"I should like to have every court begin, 'I beseech ye in the bowels of Christ, think that we may be mistaken.'"

Just. Learned Hand - 1951

On a prima facie basis, capital punishment is patently constitutional. The Fifth and Fourteenth Amendments both specifically guarantee that government cannot deprive any person of "life, liberty or property, without the due process of law." By direct inference, therefore, the converse must be true, as well. Any person can be deprived of life, liberty or property with the due process of law. Many opponents to capital punishment contend that the death penalty is inherently unconstitutional because it is uniquely corporeal and, hence, violates the Eight Amendment's prohibition against "cruel and unusual punishments." The Eighth Amendment does not define the phrase "cruel and unusual punishments," however. Therefore, a prohibition against corporeal punishment can only be inferred from it indirectly. Direct inference is always a stronger argument than indirect inference. For example, if the word "life" in the Fifth and Fourteenth Amendments had been replaced by the phrase "life or limb," it would necessarily follow that punishment by amputation would be permissible constitutionally. Since it was not, amputation can be presumed to be a violation of the Eighth Amendment's prohibition against cruel and unusual punishments. In determining constitutionality, explicit permission or prohibition is always a stronger argument than direct inference, which in turn is always a stronger argument than indirect inference, which in turn is always a stronger argument than silence.

Thus, capital punishment is constitutionally permissible if the due process of law has been maintained. Yet, it is within the contemporary application of due process by American jurisprudence that the imposition of this method of punishment becomes fundamentally unconstitutional. In addition to being uniquely corporeal, the execution of an individual is also uniquely irreversible. As long as people are human, they will make mistakes. When a mistake occurs in a court of law, it is a miscarriage of justice. Despite the best efforts and intentions of the judge, the jury, the prosecution, the defense and the police, innocent people may be convicted and guilty ones may be exonerated. Although the frequency of injustices may be debated, their occurrence cannot be disputed. Because erroneous convictions can be rescinded in every facet of criminal jurisprudence except in capital punishment, the due process of the law in capital cases should include the application of a correspondingly unique standard of evidentiary proof. In specific, because the punishment meted out by the death penalty is absolutely immutable, the verdict that imposes it should contain a corresponding degree of accuracy in order to ensure that the due process of law in capital litigation possesses the ethical validity necessary to ensure its constitutionality. Thus, the novel aspect of capital punishment that mandates a comprehensive revision of its application pertains not to the moral repercussions of inflicting cruel punishments but rather to the ethical imperative of the due process of law. Since the irreversible nature of capital punishment is unique within the construct of American jurisprudence, the application of the due process of law that is required for the imposition of the death penalty by the Fifth and Fourteenth Amendments should be unique, as well.

Because the death penalty either necessitates or permits a direct appeal to the state's highest court in every state that permits this form of punishment, this appellate process establishes a higher standard of accuracy in capital cases than exists in other types of criminal cases. Nevertheless, it is simply insufficient to justify the absolute irrevocability of human execution. In short, a more rigorous standard of evidentiary proof should be adopted in the adjudication of capital cases. The inalienable human right of liberty can be revoked ethically with an unreasonable degree of doubt or uncertainty in the veracity of the verdict; the inalienable human right of life, however, cannot.

A fundamental principle included in the modern definition of substantive due process is that ethical convictions and punishments cannot violate the natural rights of the individual. As the Eight Amendment's prohibition against the infliction of "cruel and unusual punishments" exemplifies, the tenet that the punishment fit the crime is a venerated bulwark of substantive due process. Hence, the syllogism becomes clear. If the nature of the punishment is irrevocable and if the ethicality of irrevocable punishments is predicated upon total verity, then it follows logically that the only ethical application of the death penalty should be predicated upon absolute exactitude. Hence, a guilty verdict in a capital case cannot be permitted to contain any scintilla of doubt whatsoever, regardless of the plausibility of that doubt, for it to retain its functional validity within a civilized society. Guilty verdicts in capital cases that do not meet this elevated standard of evidentiary proof, that are not uncontrovertibly accurate, violate substantive due process, and hence, the punishments that they inflict are unconstitutional contraventions of the Fifth and Fourteenth Amendments.

What Can We Do?

Congress might consider revising the definition of the due process of law in capital litigation because its ethical application is essential to legitimize the imposition of the death penalty within a civilized and democratic society. The rationale for this revision might be demonstrated most efficaciously by examining those possessions protected by the due process of law as enumerated by the Fifth and Fourteenth Amendments. By considering these possessions in the reverse order in which they are listed in these amendments (i.e. property, liberty and life), the evidentiary standard that the due process of law mandates in order to determine culpability evinces a graduated threshold of proof clearly:

Issues pertaining to the possession of property are resolved by civil litigation, and the burden of proof in civil cases is "the preponderance of the evidence."

Issues pertaining to the possession of liberty are resolved by criminal litigation, and the burden of proof in criminal cases is "beyond a reasonable doubt."

Therefore, it is reasonable presume that the next logical step in this escalating degree of evidentiary proof might read as follows:

Issues pertaining to the possession of life are resolved by capital litigation, and the burden of proof in capital cases could rise to "beyond all possible doubt."

Graphically, these differences could be represented as follows:

Issue	Litigation	Evidentiary Standard
Property	Civil	The Preponderance of the Evidence
Liberty	Criminal	Beyond a Reasonable Doubt
Life	Capital	Beyond All Possible Doubt

This elevated burden of proof implies that the penalty of death could be applied only when mentally competent defendants acknowledge their guilt in open court during the sentencing phase of capital litigation. In combination with the veracity of incontrovertible physical evidence or unimpeachable testimonial evidence required to prove criminal culpability beyond a reasonable doubt, this admission in open court could become the sole method of ascertaining guilt beyond all possible doubt. If defendants denied their guilt, or were mentally handicapped to the point that they did not understand the lethal consequences of their confessions, the penalty of death could not be imposed without violating the protection of substantive due process guaranteed by the Fifth and Fourteenth Amendments. The net result of the adoption of this method of adjudicating capital cases would provide convicted murderers with a choice between life in prison or death by execution as a punishment for their crimes, thereby obviating a reoccurrence the fiasco of the execution of Gary Gilmore in 1977. Finally, the recantation of a defendant's confession at any time prior to the execution of a death sentence might cast some degree of doubt upon the veracity of that verdict. Thus, even if the doubt created by this recantation is infinitesimally small and highly implausible, the threshold of absolute certainty would not be met, and that offender's sentence could be commuted to life in prison without the possibility of parole.

In conclusion, Congress could revise the US Code to stipulate that capital litigation should be considered to be as different from criminal and civil litigation as they are from each another and should be adjudicated accordingly. As implied by the doctrine of substantive due process, therefore, these different types of litigation should differ in kind, not merely in degree. Because of its uniquely irreversible nature, no doubt whatsoever, reasonable or unreasonable, should be permitted to exist when a person's life may be extinguished by the due process of law. Therefore, the only ethical application of due process in capital cases would be to raise the evidentiary standard in litigation that may result in the death of the defendant to an infallible level, i.e. absolute certainty. If fallible human beings, regardless of the conferral of any public authority, are to assume a divine role in determining matters of human mortality, they should possess at least the same amount of information as the divinity possesses before doing so. To presume omnipotence without omniscience is an act of flagitious hubris.