In America's debate over the death penalty, emotion often overwhelms higher principle. For this reason, the merits of America's capital punishment policy are not being discussed here, only the methods being used to force its demise.
Last June, U.S. District Court Judge Jed Rakoff ruled that the federal death penalty was unconstitutional based on the assertion that under it, innocent people could be put to death.
His ruling relied heavily on two factors: the findings of Columbia University law professor James Liebman which claims 68 percent of capital punishment appeals result in reversal of the conviction, and a handful of death-row inmates who were later exonerated.
Unfortunately, Judge Rakoff ignored three things when making his ruling: authoritative criticism of Dr. Liebman's statistics (which included multiple findings on the same cases and did not account for reinstated convictions or resentenced prisoners), the fact that state convictions have no bearing on federal law, and the United States Constitution — the one document Judge Rakoff should use when ruling a law unconstitutional.
On Sept. 24, an emboldened U.S. district court judge, William Sessions, ruled similarly to Rakoff. Apparently, he too did not know his Constitution.
If the U.S. Constitution was to implicitly say that a state sponsored death sentence is unconstitutional, as these judges claim, it could not advocate the use of such a sentence anywhere within its wording, but it does.
In Article III, Section 3, the Constitution permits Congress to decide the appropriate punishment for those convicted of treason. In doing so, it makes direct reference to "attainder of treason," where "attainder" refers to the extinction of one's civil right upon the sentence of death.
Most people are not sentenced to death for treason; most are sentenced for capital crimes. For these cases we have the Fifth Amendment, which clearly outlines the constitutionality of a federal death sentence in capital cases.
Using the Fifth, the U.S. Supreme Court correctly ruled in June that Arizona's death penalty was unconstitutional since it allowed judges and not juries to impose the sentence. In the ruling they declared, once again, that the death penalty itself is constitutionally sound, but must be done as the framers had intended.
The Constitution is clear on the death penalty. Whether you agree with it or not, our forefathers did, and therefore, there is only one legitimate way to abolish it: a constitutional amendment.
An amendment to the Constitution requires approval of two-thirds of both federal congressional houses. In order to ratify an amendment that strikes down the death penalty, therefore, a vast majority of the country must be behind it.
According to a May Gallup Poll, 72 percent of Americans agree with its use. It's easy to see why those opposed to capital punishment would rather have a judge do the dirty work despite the fact such an act is not within the judiciary's power.
Asking judges to overstep their bounds, to rule based on opinion and not on law, is to ask them to violate that which the anti-capital punishment crowd so strongly lauds: the U.S. Constitution.
In recent years, there have been many questions raised about the fairness, effectiveness and accuracy of the death penalty. Perhaps these concerns warrant public dialogue, perhaps the system needs redress, but such changes must take place legitimately.
Once we allow judges to act as despots we enter a realm where laws and rights become equally meaningless.
To me, such a state is scary, as scary as death.
Joshua Billar is a chemical engineering graduate. Reach him at joshua.billar@asu.edu.
