Reflection: Death and Dignity in American Law

Reflection: Death and Dignity in American Law

Description

Dignity serves many purposes in American jurisprudence. Over the past century, courts in the United States have invoked the concept of dignity to limit intrusive searches by the police and to bar discrimination on account of race and gender. Dignity surfaces in discussions of sexual violence, marriage, citizenship, and the privacy of both the body and the home. Yet nowhere is this concept more vital than debates about the death penalty. In American law, dignity’s most prominent role is to mediate the state’s capacity to kill. An account of the relationship between dignity and capital punishment requires some context. At present, the United States has the highest incarceration rate in the world. Men of color are especially likely to be imprisoned. In 2008, black men were six times more likely to be incarcerated than white men of the same age, and today, close to one in three African American men will be incarcerated in his lifetime. The penal institutions in which these people are held, though varied, are notoriously harsh. Like incarceration rates, the death penalty is related to structural inequities in wealth and power, and in particular, to race. In the now famous Baldus study, a group of social scientists found that defendants who murdered white victims were more than four times as likely to be sentenced to death as those who killed people of color. These numbers grow even more disproportionate when the defendant is black, and become especially sobering in a comparative frame. The United States is one of only 18 countries in the United Nations, a body composed of 193 member states, to use the death penalty. It is the only western country that permits the punishment of death. There was a time, not long ago, when capital punishment was illegal in the United States. In 1972, the Supreme Court ruled that the death penalty violated the Eighth Amendment’s prohibition on “cruel and unusual” punishment. That case, Furman v. Georgia, established a moratorium on capital punishment that lasted four years. The Furman decision was fractured—no justice wholly endorsed another’s reasoning—but in each concurrence, dignity did significant conceptual work. Justice William Brennan began his oft-cited opinion with a declaration: “The basic concept underlying the [ban on cruel and unusual punishment] is nothing less than the dignity of man.” He went on to extract from this claim a set of rules about when punishment comports with the Constitution. First, the Justice argued, punishment that is too severe is “degrading to the dignity of human beings.” Dignity also prohibits the “arbitrary infliction” of punishment and requires social acceptance for a sanction to be just. Finally, Justice Brennan wrote, punishment “must not be excessive,” for it violates “human dignity” to impose one punishment when an adequate and more moderate alternative exists. Justice Brennan’s voice was not the only one in Furman v. Georgia, but his reasoning reflects a key feature of dignity’s treatment in the law. In this opinion, a moment when dignity did some of its heaviest lifting, the concept was less a quality of personhood than a principle of governance. Dignity is neither clearly defined nor especially tied to human nature in the Supreme Court’s analysis of the death penalty. Instead, the term grounds a particular vision of political organization. Justice Brennan derived from dignity the values of moderation, democratic participation, and consistency in the application of law. His opinion, and others that have followed it, repeatedly stated that dignity requires “civilized” societies to constrain punishment. Justice Thurgood Marshall used similar diction, condemning the death penalty as a punishment inconsistent with “practices of other civilized nations of the world.”

Source Publication

Dignity: A History

Source Editors/Authors

Remy Debes

Publication Date

2017

Reflection: Death and Dignity in American Law

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