Andrew Tallman

Previously, we learned that the distinction between innocence and guilt solves three of the common conceptual arguments against capital punishment. Let’s continue with the remainder of these arguments. 

Conceptual Objection: Execution violates the Eighth Amendment by being cruel and unusual. 

The wording of the Eighth Amendment is abundantly clear: only punishments which are both cruel and unusual violate it. Thus, no matter how cruel a punishment is, if it is administered with regularity, it cannot be unconstitutional. Likewise, no matter how unusual a punishment is, if it is administered humanely it is constitutional. Since the standards for execution are uniform (at least within a particular state) and the procedure used (lethal injection, most often) is humane (especially when compared to both past forms of execution and the ways murder victims suffer), this objection is a non-starter. 

The most serious arguments seem to derive from (1) the method not being completely painless; or (2) similar cases do not always receive the same penalty. Ironically, the primary reason that cases are not resolved identically is because we try so hard to confirm guilt. The conviction and appeals process produces varying results. Thus the simplest way to create more uniformity would be to execute the guilty immediately after every conviction. Obviously, this would not improve our system, although it might please certain bloodthirsty advocates of execution who are convinced that such a system would do a better job of deterring murder. Doubtless it would, but not at an acceptable price. 

Finally, whatever claims might be made about the Eighth Amendment, the Fifth Amendment specifically endorses the taking of life under the right circumstances. When it says that no person may be “deprived of life, liberty, or property without due process of law,” the Fifth Amendment is obviously granting permission to deprive people of any of these if due process is satisfied. Any interpretation of the Eighth Amendment that is used to oppose capital punishment must fail in light of what the Fifth Amendment so clearly authorizes. And we know that the founders were not conflicted on this point since all thirteen colonies maintained capital crime statutes. I know that some issues of Constitutional interpretation are complex, but this is not one of them. 

Conceptual Objection: Capital punishment is barbaric and hateful. 


Andrew Tallman

Andrew Tallman is host of The Andrew Tallman Show on AM 1360 KPXQ from 5-7PM weekdays in Phoenix, AZ.

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