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Amending for justice

| Friday, February 12, 2021

The death penalty, at its core, is the murder of a defenseless human person. Those persons don’t pose a credible threat to others, given the security of America’s prison industrial complex. Those two sentences should be enough to convince anyone, especially Christians, that the death penalty is morally abhorrent. If you’re not yet convinced, I’ve written about the need for pro-life activists to combat the death penalty, the ACLU has written about the role of racism in its application, Pope Francis’ most recent papal encyclical called for its abolition and Amnesty International found that its cost is 70% more than alternatives. I also highly recommend Bryan Stevenson’s book “Just Mercy” or even the movie adaptation. This column, however, isn’t about the need to abolish the death penalty. It’s about how we get there. 

Good news: President Biden is the first United States president to be elected on a platform that included the abolition of the death penalty. Bad news: Biden hasn’t done anything concerning the death penalty as of yet, even though he has the power to commute the sentences of all the prisoners currently on federal death row. Worse news: Biden can’t take any unilateral action to end the federal death penalty, Congress may not be willing to pass the legislation required to do so and the states have historically killed many more prisoners than the federal government anyway. In fact, before last year, the combined state governments had murdered over 1500 prisoners since 1977, and the federal government had killed only three in the same time period. Given former President Trump’s push to execute as many defenseless humans as possible in the last year of his presidency, the number of lives ended by the federal government in this manner since 1977 has quadrupled. 

Biden absolutely should take any action he can to end or effectively end the federal death penalty. It is morally imperative that he do so. But I am not convinced that this should be the end of the fight against capital punishment at the federal level. There are three paths, as far as I can tell, to entirely eradicating this sinful stain from our country. One of them is to pressure every state government to abolish its own death row. That piecemeal process has steadily progressed over the last decades: Only 12 states had outlawed capital punishment as of 2000, and that number has risen to 22 in the 20 years since. At that rate, abolition will be entirely complete in this country by 2077. Another path is through the Supreme Court, which has the power to interpret the Eighth Amendment to preclude state executions. That seems exceedingly unlikely, since the Court is both currently accepting of the death penalty and virtually immune from public pressure. The third path is that which I think would prove most fruitful: Let’s propose a constitutional amendment which clarifies that capital punishment is a cruel and unusual punishment in violation of the Eighth Amendment. 

It takes two-thirds of each chamber of Congress, plus three-quarters of the state legislatures, to ratify an amendment to the Constitution. That’s a tall order, given the facts: Less than half of the states have even eliminated their own death penalties, and Congress would be required to take bold bipartisan action, an idea that seems almost laughable. Compared to the alternatives, however, I believe it to be the best path we have to complete abolition of the death penalty on American soil. 

Consider this: Every single state in the nation needs to oppose the death penalty for the piecemeal approach to be ultimately successful. If a constitutional amendment is used, on the other hand, 12 states can be opposed to the measure without hindering its ratification. The state of Texas has carried out about a third of America’s capital punishments since 1977; almost 75% of Texans said they support the death penalty in a Texas Tribune poll in 2013, and nearly half of Texans in that poll said that they strongly support it. Is it really feasible that we could convince the state of Texas to eliminate the death penalty? I certainly believe it is far less realistic than convincing a supermajority of other states to support a constitutional amendment. 

Amending our nation’s foundational document to specify the illegality of the death penalty would not only be practically beneficial, however. It would codify a moral victory, creating a lasting testament to the value of human life. It would be an act of defiance towards a culture focused on hatred, punishment and racist violence; it would move us towards a culture of love, redemption and peace.

The fight against the death penalty should not be, must not be, a one-pronged attack. President Biden can take serious steps toward ending federal executions whenever he would like, and he absolutely should. We must continue to push state legislatures to end their attacks on their own defenseless citizens. Saving lives, wherever possible, is imperative. But I sincerely believe, since the absolute abolition of the death penalty should be our goal, we must take action to make the 28th Amendment the ultimate fulfillment of that goal.


Vince Mallett is a senior majoring in Philosophy, with a minor in Constitutional Studies. He currently lives off-campus, though he calls both New Jersey and Carroll Hall home. He can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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