Thursday, November 19, 2015

Erwin Chemerinsky on the Death Penalty

Erwin Chemerinsky

Erwin Chemerinsky, who is the dean of UC Irvine's law school, writes a column for the Orange County Register every Thursday. Typically, Chemerinsky, a liberal, takes an issue and argues that the liberal side of the argument is the constitutional side while the opposing viewpoint is, naturally, unconstitutional.

Since Chemerinsky is opposed to the death penalty, he tries to argue that it must be unconstitutional (at least in California), which would come as a surprise to the framers of the Constitution.

Here is today's edition of Thursdays with Erwin.

Admittedly, it takes a lawyer to get around Chemerinsky's rather tortured reasoning, and a lawyer I am not. I do know that California has the longest appeal process in the nation for death penalty cases. Chemerinsky tries to downplay the role defense attorneys and their endless appeals play in this process, but it is hardly the fault of the prosecution side that the process takes so long. And Chemerinsky thinks this constitutes "cruel and inhuman punishment"?

And just who is this Earnest Dewayne Jones who Chemerinsky is taking sides with? Let's take a look.

This was not mentioned in Chemerinsky's article, nor was the name of Jones' victim, Julia Miller.

I don't have a problem with an appeals process, especially in capital cases. After all, we do want to get it right. California's absurd process only exists because the powers that be don't want executions in California at all though the citizens disagree. Claiming cruel and inhuman punishment after you tie up the process for so long is like the convicted murderer (no pun intended) of his parents asking for mercy on the grounds that he is an orphan.

Come to think of it, however, I guess the framers of the Constitution never heard of California, did they?

1 comment:

elwood p suggins said...

Two SCOTUS justices (Breyer and Ginsburg) are also making noises about the death penalty being unconstitutional on its face. How silly.

Notwithstanding the statement in the non-legally binding "Declaration of Independence" (a very fine document indeed) that the right to life is "unalienable", the legally-binding Fifth Amendment to the U.S. Constitution, in which the both the Founders/Framers and "the people" obviously anticipated the availability of the death penalty, promptly trumps the Declaration.

This amendment's double jeopardy clause specifically mentions life, an apparent confirmation of the fact that one's life may legally be put in jeopardy once. The amendment further provides that no person shall be deprived of life "without due process of law". The corollary to that would appear to be that one may indeed be deprived of life (via the death penalty, how else??) as long as due process is properly applied.

The only other possible bar to the death penalty I can think of lies in the legally-binding Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual" punishments.

Taking the second first, it does not appear at all unusual that the ultimate crime should result in the ultimate penalty. After all, we may be deprived of both property (money) and liberty (at least temporarily/briefly) for things like unpaid parking tickets, traffic violations, jaywalking, or spitting on the sidewalk.

As far as "cruelty" is concerned, with particular reference to lethal injection, execution is really not inherently different, except for the final result, than thousands upon thousands of surgical/medical procedures performed daily throughout the country. Seems to me that if one is cruel, then both are; conversely, however, if one is not cruel, then neither is.