Constitutionality of US federal death penalty

August 27, 2009 1:34 PM

How would a more qualified person refute my dumb legal theory regarding the death penalty?

Article II, Section 2 of the US Constitution states that the President "shall have power to grant reprieves and pardons for offences against the United States". The Supreme Court has interpreted this language to include the power to grant pardons, commutations of sentence, remissions of fines and forfeitures, and amnesties.

The death penalty unnecessarily infringes on this executive power by killing the inmate. The inmate’s punishment can no longer be reprieved (and arguably no legitimate pardon can be issued). Therefore the federal death penalty is unconstitutional, and the Bureau of Prisons has an obligation to attempt to keep prisoners alive so that the President can decide to issue a reprieve of their punishment.

Has this argument or a related one been dealt with in court?

posted by East Manitoba Regional Junior Kabaddi Champion '94 to law & government (18 comments total)

Pardon whom?

Once a prisoner is executed, he ceases to be, and is therefore (in my IANAL opinion) not entitled to the protections of the constitution.
posted by TheNewWazoo at 1:39 PM on August 27

Once a prisoner is executed, he ceases to be, and is therefore (in my IANAL opinion) not entitled to the protections of the constitution.

Not a lawyer either, but using the same logic, couldn't you argue that the courts could also skip the "speedy and public trial" part of the Constitution by just executing people immediately?
posted by burnmp3s at 1:45 PM on August 27

The dealth penalty, when carried out, does cause a president to no longer be able to exercise the power to grant a reprieve, pardon, or commutation of the death sentence; however, it is not the case that the president was denied an opportunity or barred while attempting to exercise that power prior to the execution. The constitution empowers the president in various ways, but that it does not mean it can be used to bar an action because it might potentially create a scenario in which it would no longer be possible for the president to preserve the option to exercise such powers in perpetuity with respect to a given convict. That is, the president is not entitled to have the perpetual option to eventually intervene in an execution; rather, he or she is empowered and has the opportunity to do so, and can do so, before the execution takes place.
posted by onshi at 1:52 PM on August 27

Two posthumous pardons have been granted by United States Presidents. Clinton granted one to Lt. Henry Flipper in 1999 [pdf], and W granted one to Charlie Winters in 2008.

That first link is a law journal article discussing the posthumous pardon. One of the main arguments is that the Presidential pardon power is coextensive with the pardon power of the British Crown, and Queen Elizabeth II, acting on the advice of the Home Secretary, granted a posthumous pardon in 1966. Since the pardon power had not been expanded since 1787, it is then argued that the same posthumous pardon power is vested in the President.

Since pardons may be granted posthumously, the death penalty cannot interfere with the pardon power per se though plainly it blunts its effect. Bear in mind also that the President can always commute a death sentence to a sentence of life in prison. If the President did not wish an execution to deprive him or her of that power, then he or she could simply commute the sentence first and pardon later if new evidence came to light.
posted by jedicus at 1:52 PM on August 27 [3 favorites]

The president had the power to commute the sentence before the person was executed. He chose not to exercise it; the Bureau of Prisons doesn't have a responsibility to hold that option open forever. In terms of finality, the days that a prisoner has already spent in jail are also irretrievable -- so by this argument, executing any punishment at all would infringe on the president's right to commute.
posted by katemonster at 1:55 PM on August 27 [2 favorites]

The inmate’s punishment can no longer be reprieved (and arguably no legitimate pardon can be issued)

This is only true after the sentence is carried out. The punishment (typically) does not happen immediately. Before execution, the President is free to pardon, reprieve, commute sentence, or whatever. The fact that the President didn't pardon someone to be executed would be treated as a choice to not exercise that power. (also, what onshi and jedicus said)

Also, your argument would only apply to the death penalty for Federal crimes. I don't think it would apply to the executions carried out by the States.

(not even close to being a lawyer)
posted by ArgentCorvid at 1:55 PM on August 27

In other words, what onshi said. And jedicus makes a good point too.
posted by katemonster at 1:56 PM on August 27

IAAL.

The president's Pardon Power lets him/her grant pardons. It has nothing to do with punishment. You might as well argue that the Pardon Power is frustrated when someone is sentenced to 10 days for vagrancy, sent to the lockup and pardoned after the sentence is over.

In fact, people have been pardoned posthumously.
posted by KRS at 1:57 PM on August 27

Also, your argument would only apply to the death penalty for Federal crimes. I don't think it would apply to the executions carried out by the States.

At least some states grant their Governors the power to grant posthumous pardons. Governors of Massachusetts, Pennsylvania, Oklahoma, Maryland, California, Arizona, Nebraska, and Nevada have all granted posthumous pardons, according to this article suggesting that the Texas governor may also have that power [pdf].
posted by jedicus at 1:58 PM on August 27

That's just a strained reading of the pardon power language. One way to oppose it would be to present evidence that the framers (etc) of the Constitution did not expect to be outlawing the death penalty, and that the historical antecedents of the pardon power (royal prerogatives) were understood as consistent with the death penalty.
posted by grobstein at 2:00 PM on August 27

Thanks for your answers.

Since pardons may be granted posthumously, the death penalty cannot interfere with the pardon power per se though plainly it blunts its effect.

If the President has the right to issue a pardon, does he not also have the right to issue a reprieve? But this right is curtailed because of the execution.

Clearly there are many times when a president has the right to limit a future President's powers, but perhaps this is a case where the constitutionally-mandated right to reprieve the punishment outweighs the non-mandated ability to execute the inmate?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:00 PM on August 27

If the President has the right to issue a pardon, does he not also have the right to issue a reprieve? But this right is curtailed because of the execution.

That right is also curtailed by the natural death of the inmate. Even mandatory language like "he shall have power to grant reprieves and pardons" has limitations imposed by common sense.

And remember, the Presidential pardon power is coextensive with the royal pardon power of England in 1787. You aren't seriously disputing that the King of England had the power to execute people in 1787, are you?
posted by jedicus at 2:04 PM on August 27

You know how some people are always going on about how income tax is unconstitutional? Well other people are always correcting them, but it really does not matter, because sometimes things are "legal" just because they are. We do them don't we? If you don't pay your damn income taxes then people with guns are going to come take you and lock you up aren't they? Well then income taxes must be legal huh chief?

This is the same kind of thing. That is a cute theory and all, and somebody smarter than me can come and give you reasons why it is wrong legally, but I will tell you why it is wrong practically. We still have the death penalty, so it must be constitutional. Law isn't like a poorly designed board game where you can exploit a loophole to win automatically. You can't walk into a courtroom and point at a couple of parts of the constitution and accomplish anything. If there is a political will to end the death penalty which outweighs the political will to maintain it, then the death penalty will be abolished. But it won't be because of some clever legal theory. You will know the death penalty is unconstitutional when we don't have it anymore. Until that day, if we are still executing people then it is still constitutional.
posted by ND¢ at 2:06 PM on August 27 [1 favorite]

If the President has the right to issue a pardon, does he not also have the right to issue a reprieve? But this right is curtailed because of the execution.

Consider the logical equivalent of your argument:

Prison sentences that are not indefinite must be unconstitutional because they will eventually -- once the sentence is completed -- deny the president his right to issue a reprieve.

Therefore, every sentence must be indefinite -- people have to stay locked away until the president pardons them or grants them a reprieve. This is, of course, silly.
posted by toomuchpete at 2:17 PM on August 27

[a few comments removed - this is for getting your question answered, not for starting a debate about your question - metatalk is your option otherwise.]
posted by jessamyn at 2:19 PM on August 27

If the President has the right to issue a pardon, does he not also have the right to issue a reprieve? But this right is curtailed because of the execution.

The wording is power. A power is not a right. The President's powers are not absolute and are constrained in many ways, and the judiciary is an equal branch to the executive. The way you are trying to interpret it could also be turned on its head: The Constitution, by granting the power of reprieve to the President, curtails the powers and responsibilities of the judiciary. That the judiciary would be constrained from doing its job by an unexercised power makes no real sense. Either the President exercises this power, or he abjures it.

I agree that this is a "cute" reading of the Constitution. It was obviously not the intent of the clause and arguing that it should be read that way is disingenuous. It's not as poorly motivated, say, as arguing that the US federal courts are not civilian courts because the flag has a fringe (or no fringe, I forget), but it's along the same lines.

The actual Supreme Court has ruled against the death penalty on a variety of rationales, which I think are grounded much more firmly in both jurisprudence and the real world. These include that we cannot seem to administer the death penalty fairly. Pursuing these objections is both more likely to succeed and more likely to stick in the long run.

Consider that overturning laws by finding loopholes has a fatal flaw. If the society believes the law is the way it is, for whatever reason, they will use the system to restore it.
posted by dhartung at 5:24 PM on August 27 [1 favorite]

KRS has by far the most sensible take. All punishments are irreversible after they've been carried out -- the pardon power is the power to put a stop to future punishments.
posted by paultopia at 7:07 PM on August 27

To follow on from dhartung, the Supreme Court has upheld the death penalty against much stronger arguments than this one. It has also upheld stricter limits on executive power than the far-fetched limitation you posit here.
posted by sinfony at 1:25 AM on August 28