When The State Kills – by Rick Fisk
Why the Death Penalty is Already Illegal
Due to recent scrutiny of American jurisprudence, specifically, an astonishing number of death row exonerations, there has been renewed debate regarding use of the death penalty. Some argue that the death penalty should be abolished because too many innocent people have been convicted, some seek to end its practice because it is biased against the poor and people of color, some are against it because it is “cruel and unusual,” and some adamantly argue that it should be continued even if the state must illegally obtain the drugs which make executions “legal” under the eighth amendment. None on either side of the debate satisfactorily explains where governments obtain the authority to administer death.
Through courts, media, and academia, we settle on some facts about the death penalty:
- About 60% of Americans have favored the death penalty for the past 40 years, in spite of the growing number of exonerations -154 as of 6/8/2015. [Death Penalty Information Center].
- The death penalty has virtually no effect as a deterrent to crime. Death penalty proponents argue this doesn’t matter.
- Carrying out the death penalty costs more than housing a convict for life.
- You are 22 times more likely to receive the death penalty for murder if you are black and the victim is white, than if you are white and the victim is black
- For every nine people executed in the U.S., one has been exonerated. Contrary to many death penalty proponents, innocence is far from “rare.”
In fact, it may be the epitome of understatement to say that governments have a collective, sordid history of murdering innocent people with varied levels of “due process” employed to create illusions of legitimacy.
For instance, imagine a country that routinely conducts no-knock raids on private homes, rounding up those it deems its enemies. In many instances, entire families are simply taken to a field, shot, and pushed into a mass grave. Others are taken to prisons and made to work as slave laborers. By the time the practice ends, twenty-million men, women, and children die at the hands of the state.
Sadly, it really happened. There are many accounts by historians and survivors, documenting the U.S.S.R.’s imprisonment and murder of its own people. We can look back on the Soviet pogroms today and make the standard clucking noises of contempt, but until we acknowledge the root causes of states run amok, we may eventually come face to face with a regime completely unfriendly to critics. Under Stalin, critics were imprisoned or killed, or both, with a little bit of torture thrown in for special cases.
It is estimated that between six and eight million people were killed in German-occupied territory between 1939 and 1945. Many were gassed, many died of typhus due to harsh prison camp conditions, and many were shot or worked to death.
Estimates vary, but China is believed to have murdered about eighty million of its own citizens.
One could list dozens more governments that brutally turned on its citizens and note different reasons and chronologies describing how these governments devolved into nightmares, but they would have limited use in explaining how such tragedy could come to pass, however fascinating any individual history might be. At the root of all are governments which believed they had legal authority to administer death to its so-called outlaws.
One might argue that the cases mentioned cannot be used as cautionary tales for a free people because they are examples of totalitarian regimes which had no checks against indiscriminate use of murder. Here in the U.S., we have courts which act as a barrier to prevent miscarriages of justice and a constitution limiting government’s power to only use murder (deliberate, premeditated homicide) after certain strict conditions are met. We only kill those who really deserve it. Granted, it may be a “slippery slope” argument to say that the U.S. will devolve into something akin to Stalin’s paranoid killing regime, but it also isn’t far-fetched. The U.S. government has killed millions itself, even if it hasn’t always targeted its own citizens. However, just like all of these regimes mentioned, it is assured that federal and state authorities have the power to administer death. The assumption is erroneous.
Both proponents and detractors of the death penalty skip the question of authority. Due to history and practice, it is assumed that governments must possess the power to murder. Yet, no explicit power to murder is listed in our state or federal constitutions, a prerequisite to its legitimate use. Nor could it be, no matter how hard potential despots might wish it so.
On its face, the idea that a state or the federal government could murder people legitimately seems wrong. Even more so when you try to imagine where the legitimacy could be derived. It would have to come from somewhere. Some place, some thing, some person. Where does the Governor of Texas, or the President of the United States, get the authority to sign anyone’s death warrant?
When the federal constitution was written, it echoed sentiments found in the Declaration of Independence, noting that all of its authority was derived from “We the People.” All powers listed were ones the individuals who drafted it and those it claimed to represent, possessed as individuals. Powers and authorities they would and might use with or without a government in effect. Eventually, a list of exclusions was proposed in case future officials forgot that their authority was strictly limited to just the powers listed.
It is important to note that Madison, often credited as the ‘Constitution’s architect,’ argued against the Bill of Rights. “Crazy,” you might think to yourself! But, his argument was quite sensible. He believed that by attaching a list of exclusions, it would give the impression that the constitution contained the authority to commit the transgressions being excluded. No power to restrict religious expression, ban weapons, arrest without probable cause, punish cruelly, or quarter soldiers, existed in the Constitution’s enumerated powers, so these exclusions were legally unnecessary.
Nevertheless, the Bill of Rights was included, because some state legislatures were threatening not to ratify without assurances like the ones included in the Bill of Rights.
Those who drafted the Constitution of the United States, and those who wrote the state constitutions, did so with the concept of individual sovereignty in mind. It’s why so many state constitutions echo these words, or something similar: “All political power is vested in the people.”
Unlike the monarchy from which they were breaking, no single, God-ordained Sovereign ruled over men. All men were sovereign, each endowed by his creator to rule himself or to join with others to consent to governance by law, their selected representatives subject to that same law. No man could be above the law.
Thus, consider the absurdity of man agreeing that murder is outside the purview of normal individuals and explicitly defining it as the premeditated, systematic killing of another human being, and then prescribing murder as its own punishment. How can two men agree that murder is illegal and legal at the same time? Even more importantly, how can a man give another man the authority to do something he himself is not authorized to do? If government authority comes from the individual, can it possess the power to murder, given that all moral, religious, and legal authorities deny an individual’s authority to kill? Is government omnipotent? Above its own laws?
Most importantly, there is no language that gives government the power to murder.
You might argue that the power to murder is implied in your right to life. Government’s power to wage war is derived from an individual’s right to defend himself. But, self-defense and war have limitations. Common law decisions over centuries and statutes clarifying those decisions are pretty clear about when self-defense applies. Self defense is only valid at the time of an attack, and only to thwart the attack. Retaliation is considered murder under the law.
In spite of the facts, states and the Federal Government assumed authority to murder, a.k.a., the death penalty, shortly after ratifying the U.S. Constitution. State legislatures prescribed murder as a punishment for more crimes than just murder, and the Federal Congress threatened those found guilty of “debasing the currency” with death. None were legal, though it is understandable that legislatures acted as they did, since the death penalty at the time, no matter how barbaric a practice, was quite “usual” for crimes such as petty theft.
Unfortunately, transgressions against the Constitution can take a great deal of time to remedy, if relying on the courts.
Consider, for instance, marriage. Black’s Law defines a license as “permission to do a thing which would otherwise be illegal.” A license is therefore a legal exception. Why would anyone need a license to marry? Because states had outlawed miscegeny – interracial marriage (interracial being a nonsense term, given there is only one race in scientific taxonomy of our species). State legislatures took no notice that they were totally barred from regulating religious practices and from “impairing the obligation of contracts.” The marriage license was a tool created by the states to discriminate against black people. It took over 100 years (until 1966) before the Supreme Court ruled that laws against mixed marriage were unconstitutional.
Back to the death penalty. Though it is totally illegal, outside all human authority, we are still trying to use the courts to strike it down, using arguments that are illogical and self-defeating. Lawyers try to persuade the courts that it is cruel as administered, but the argument is subjective and wasted on men and women rarely moved to empathy, even when shown evidence of burning flesh and exploding eyeballs.
Such an approach is fatally flawed because it fails to challenge government’s fundamental authority to commit criminal acts in order to administer ‘justice.’ Should a future technology be discovered which could render death painlessly, officials could merrily continue their serial killing.
The death penalty is not wrong because it is cruel, unequally applied against the poor and/or minority defendants, and too many times finds innocent men and women in its grasp. It’s all those things, yes. But it is wrong, legally and morally, because it is, in its best scenario, premeditated murder, revenge which would be vigorously prosecuted were any individual to take it upon themselves.
Allowing government to operate under such double standards has terrible consequences. Our justice system is in shambles. Not only can states murder, but the courts agree that police can “legally” lie to extract confessions, while witnesses and suspects are imprisoned for lying to investigators. If you pay attention to the actions of police, prosecutors and judges in many death penalty exonerations, you find patterns of misconduct and hubris testifying to the utter contempt with which officials treat the accused and the oaths they swore to uphold.
The use of murder as a tool is so corrupting that we now have a federal “assassination list” that has already been successfully used to murder at least four American citizens (one of whom was a 16 year-old boy), without even the slightest patina of due process applied. So much for that slippery slope.
The good news about the death penalty is that we don’t have to wait another 250 years before we correct the error. We can render pain-free death technologies that may be invented or discovered in the future forever barred from falling into the hands of “corrections” officials; by moving the legislatures now, to abolish government’s access to murder as a tool, ending all possibility that further innocents will be murdered in our name.
Rick Fisk, TDCJ