Fuzzy Memory and the death penalty

Years ago, I read a short citation about judicial decisions concerning the death penalty. It appeared an American history textbook – those ‘review questions’ that were always printed at the end of each chapter, to see if you were paying attention when you read your homework. It included a quote from a Supreme Court justice. I filed the quote away, and occasionally it rises out of my memory banks when I read about the death penalty. The quote was something like, “The death penalty is our way of saying to someone, you messed up your life here, go take your chances elsewhere.”

The Justice’s context, supposedly, was that such a statement was empty. The death penalty was not a human or humane way to treat another individual, no matter how heinous the crime.

I decided to search for that quote, and typed variations into the Google search bar. Either my memory, or that textbook, was fuzzier than I expected. Probably both.

The case was Furman v Georgia, the seminal 1972 case in which the Supreme Court determined that the death penalty was cruel and inhuman punishment and was contrary to the Eighth and Fourteenth Amendment of the Constitution. Justice William Brennan, in his concurring opinion, quoted a line from an 1864 tract written in favor of the death penalty, in which that phrase “take your chance elsewhere” was used. Judge Brennan did not use the phrase directly to support his own argument.

But much of his written opinion is brilliant, nonetheless. The citation is from the Cornell University web site of US Supreme Court decisions ( http://www.law.cornell.edu/supt-cgi/ ):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose "the right to have rights." A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a "person" for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, see Witherspoon v. Illinois, 391 U.S. 510 (1968), yet the finality of death precludes relief. An executed person has indeed "lost the right to have rights." As one 19th century proponent of punishing criminals by death declared,

When a man is hung, there is an end of our relations with him. His execution is a way of saying, "You are not fit for this world, take your chance elsewhere." [n39] [p291]

39. Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864).