case study of due process of law

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Due Process Supreme Court Cases

A Due Process Clause appears in both the Fifth Amendment and the Fourteenth Amendment to the U.S. Constitution. These provide that nobody may be deprived of life, liberty, or property without due process of law. Courts have developed two branches of due process doctrine: procedural due process and substantive due process.

First, procedural due process involves the steps that must be taken before someone is deprived of an interest involving life, liberty, or property. These vary depending on the situation but typically include notice and an opportunity to be heard, as well as an unbiased decision-maker. Sometimes procedural due process also may entail a right to present evidence, a right to cross-examine opposing witnesses, and an opportunity to be represented by counsel, among other protections.

Meanwhile, substantive due process involves certain fundamental rights that are deeply rooted in American history and tradition. Notable areas in which this doctrine has arisen include reproductive rights, LGBTQ+ rights, and end-of-life decisions. A court usually applies strict scrutiny to government actions that affect fundamental rights, which means that the government must show that its action furthered a compelling interest and was narrowly tailored to achieve that interest. Earlier in its history, the Supreme Court reviewed some economic regulations through the lens of substantive due process, but it has largely abandoned this approach.

Below is a selection of Supreme Court cases involving due process, arranged from newest to oldest.

Author: Samuel A. Alito, Jr.

The Constitution does not confer a right to abortion. Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.

Author: Elena Kagan

Due process does not require a state to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong.

Author: Ruth Bader Ginsburg

The Excessive Fines Clause of the Eighth Amendment is an incorporated protection applicable to the states under the Fourteenth Amendment's Due Process Clause.

Author: Anthony Kennedy

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outside the state.

The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

Author: John Paul Stevens

Vagueness may invalidate a criminal law if it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, or if it authorizes or encourages arbitrary and discriminatory enforcement.

Author: William Rehnquist

A “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. Thus, a state law banning physician-assisted suicide does not violate due process.

Author: Anthony Kennedy , David Souter , Sandra Day O’Connor

An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

The Constitution does not forbid a state from requiring that evidence of an incompetent person's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence.

Coercive police activity is a necessary predicate to finding that a suspect's confession is not voluntary within the meaning of the Due Process Clause. More generally, the sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.

Author: Byron White

While the legislature may elect not to confer a property interest in public employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.

A due process violation does not arise from the unauthorized failure of state agents to follow established state procedure when the state provides an adequate post-deprivation remedy.

Author: Lewis Powell

When the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and a court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. More generally, appropriate limits on substantive due process come not from drawing arbitrary lines, but from careful respect for the teachings of history and solid recognition of the basic values that underlie our society.

The Due Process Clause does not require notice and a hearing prior to imposition of corporal punishment in public schools as that practice is authorized and limited by the common law.

Identifying the specific dictates of due process generally requires considering three factors: the private interest that will be affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (An evidentiary hearing is not required prior to the termination of Social Security disability payments.)

Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause.

Strict judicial scrutiny is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. (Poverty is not a suspect class, and education is not a fundamental right.)

Author: Harry Blackmun

The Due Process Clause protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Although the state cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a compelling point at various stages of the woman's approach to term.

Author: Potter Stewart

The Fourteenth Amendment does not require an opportunity for a hearing prior to the non-renewal of a non-tenured state teacher's contract unless they can show that the non-renewal deprived them of an interest in liberty, or that they had a property interest in continued employment, despite the lack of tenure or a formal contract.

From the standpoint of due process, it is immaterial that a deprivation of property may be temporary and non-final.

Author: William Brennan

A pre-termination evidentiary hearing is necessary to provide a recipient of welfare benefits with procedural due process. The interest of an eligible recipient in the uninterrupted receipt of public assistance, coupled with the state's interest in not erroneously terminating their payments, clearly outweighs the state's competing concern to prevent any increase in its fiscal and administrative burdens.

Author: Earl Warren

A statutory scheme to prevent marriages between persons solely on the basis of racial classifications violates the Fourteenth Amendment.

Author: William O. Douglas

A state law forbidding the use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.

Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Author: John Marshall Harlan II

Particularly when dealing with a withholding of a non-contractual benefit under a social welfare program, the Due Process Clause interposes a bar only if the statute manifests a patently arbitrary classification, utterly lacking rational justification.

The Due Process Clause no longer should be used to strike down state laws regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.

Author: Felix Frankfurter

Involuntary verbal confessions are inadmissible in a criminal trial under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.

Author: Robert H. Jackson

A fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Author: Harlan Fiske Stone

Regulatory legislation affecting ordinary commercial transactions is not unconstitutional unless it is of such a character as to preclude the assumption that the law rests on a rational basis within the knowledge and experience of the legislature. (Footnote 4 laid the foundation for heightened scrutiny in certain situations involving fundamental rights, the political process, and racial, national, or religious minorities.)

Author: Charles Evans Hughes

A restraint or regulation of the liberty to contract is due process if it is reasonable in relation to its subject and adopted for the protection of the community against evils menacing the health, safety, morals, and welfare of the people. Also, in dealing with the relation of employer and employed, the legislature has a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to ensure wholesome conditions of work and freedom from oppression.

Author: Owen Josephus Roberts

The Due Process Clause conditions the exertion of regulatory power by requiring that the end shall be accomplished by methods consistent with due process, that the regulation shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.

Author: George Sutherland

The right of the accused, at least in a capital case, to have the aid of counsel for their defense is one of the fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment. This includes the right to have sufficient time to advise with counsel and prepare a defense.

Author: Oliver Wendell Holmes, Jr.

A state may provide for the sexual sterilization of inmates of institutions supported by the state who are found to be afflicted with a hereditary form of insanity or imbecility.

Author: James Clark McReynolds

The fundamental theory of liberty on which all governments in the U.S. rest excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

A trial for murder in a state court in which the accused are hurried to conviction under mob domination without regard for their rights is without due process and void.

A state law forbidding the teaching of any modern language other than English to a child who has not successfully passed the eighth grade invades the liberty guaranteed by the Fourteenth Amendment.

Legislation fixing hours or conditions of work may properly take into account the physical differences between men and women, but the doctrine that women of mature age require (or may be subjected to) restrictions on their liberty of contract that could not lawfully be imposed on men in similar circumstances must be rejected.

Author: John Marshall Harlan

It is not within the power of Congress to make it a criminal offense against the United States for a carrier engaged in interstate commerce to discharge an employee simply because of their membership in a labor organization. A provision to that effect is an invasion of personal liberty and the right of property and is unenforceable under the Due Process Clause.

Author: David Josiah Brewer

The regulation of the working hours of women falls within the police power of the state, and a statute directed exclusively to such regulation does not conflict with the Due Process or Equal Protection Clauses.

Author: Rufus Wheeler Peckham

The general right to make a contract in relation to one's business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the state in the legitimate exercise of its police power.

In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation to it.

A judgment of a state court, even if authorized by statute, whereby private property is taken for public use without compensation made or secured to the owner, is wanting in the due process of law required by the Fourteenth Amendment.

Author: Joseph Bradley

It is state action of a particular character that is prohibited by the Fourteenth Amendment. Individual invasion of individual rights is not the subject matter of the amendment.

Author: Samuel Freeman Miller

The privileges and immunities of citizens of the United States are those that arise out of the nature and essential character of the national government, the provisions of the Constitution, or federal laws and treaties made in pursuance thereof. (The main holding of this case addressed the Privileges or Immunities Clause of the Fourteenth Amendment, rather than the Due Process Clause. However, it is significant for due process doctrine because it made the Due Process Clause the foundation for most Fourteenth Amendment claims involving fundamental rights. This function otherwise might have been served by the Privileges or Immunities Clause.)

Author: Roger Taney

An act of Congress that deprives a citizen of the United States of his liberty or property merely because he came or brought his property into a particular territory of the United States could hardly be dignified with the name of due process of law.

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment provides that “no person” shall be deprived of “life, liberty, or property, without due process of law.” 1 Footnote U.S. Const. amend. V . Generally, “due process” guarantees protect individual rights by limiting the exercise of government power. 2 Footnote Due Process , Black’s Law Dictionary 610 (10th ed. 2014) . The Supreme Court has held that the Fifth Amendment , which applies to federal government action, provides persons with both procedural and substantive due process guarantees. If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment ’s Due Process Clause requires that the government first provide certain procedural protections. 3 Footnote See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961) ). Procedural due process often requires the government to provide a person with notice and an opportunity for a hearing before such a deprivation. 4 Footnote Twining v. New Jersey, 211 U.S. 78, 110 (1908) ; Jacob v. Roberts, 223 U.S. 261, 265 (1912) . In addition, the Supreme Court has interpreted the Fifth Amendment ’s Due Process Clause to include substantive due process guarantees that protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law. 5 Footnote E.g. , Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia , 388 U. S. 1 (1967) ). Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The Fifth Amendment ’s Due Process Clause protects all persons within U.S. territory, including corporations, 6 Footnote Sinking Fund Cases, 99 U.S. 700, 719 (1879) . aliens, 7 Footnote Wong Wing v. United States, 163 U.S. 228, 238 (1896) . and, presumptively, citizens seeking readmission to the United States. 8 Footnote United States v. Ju Toy, 198 U.S. 253, 263 (1905) ; cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927) . However, the states are not entitled to due process protections against the federal government. 9 Footnote South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966) . The clause is effective in the District of Columbia 10 Footnote Wight v. Davidson, 181 U.S. 371, 384 (1901) . and in territories that are part of the United States, 11 Footnote Lovato v. New Mexico, 242 U.S. 199, 201 (1916) . but it does not apply of its own force to unincorporated territories. 12 Footnote Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920) . Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States. 13 Footnote Johnson v. Eisentrager, 339 U.S. 763 (1950) ; In re Yamashita, 327 U.S. 1 (1946) . The Clause restrains Congress in addition to the Executive and Judicial Branches and “cannot be so construed as to leave Congress free to make any process ‘due process of law’ by enacting legislation to that effect.” 14 Footnote Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) . See also Massachusetts Supreme Judicial Court Chief Justice Lemuel Shaw’s opinion in Jones v. Robbins , 74 Mass. (8 Gray) 329 (1857) .

Due process cases may arise under both the Fifth and Fourteenth Amendment s. Both amendments use the same language but have a different history. 15 Footnote French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901) . The Supreme Court has construed the Fourteenth Amendment ’s Due Process Clause to impose the same due process limitations on the states as the Fifth Amendment does on the federal government. 16 Footnote Cf. Arnett v. Kennedy, 416 U.S. 134 (1974) ; Heiner v. Donnan, 285 U.S. 312, 326 (1932) ( “The restraint imposed upon legislation by the due process clauses of the two amendments is the same.” ); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 610 (1936) . Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment . Except for areas in which the federal government is the actor, much of the Constitution Annotated 's discussion of due process appears in the Fourteenth Amendment essays. 17 Footnote See Amdt14.S1.3 Due Process Generally.

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US government and civics

Course: us government and civics   >   unit 3.

• The Fifth Amendment
• The Sixth Amendment
• Miranda v. Arizona

Due process and the rights of the accused: lesson overview

• Due process and the rights of the accused

Key takeaways

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Due Process

Mallory v. norfolk southern railway co., precedent, reliance, and  dobbs.

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Separation of powers and thuraissigiam : the entry fiction as judicial aggrandizement.

• Brandon Hallett Thomas

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The right to be free from arbitrary probation detention, affirmative duties in immigration detention, swain v. junior.

Eleventh Circuit Holds that a Florida Jail Was Not Deliberately Indifferent to the Spread of COVID-19.

Doe v. University of the Sciences

Third Circuit Holds Pennsylvania Law Guarantees a “Real, Live, and Adversarial Hearing.

United States v. Vaello-Madero

First Circuit Affirms that Unequal Federal Benefits Program in Puerto Rico Violates Fifth Amendment.

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5 Equal Justice and Due Process of Law

• Published: September 2003
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The principles of equality and due process lie at the heart of the rule of law, when interpreted as an ideal of constitutionalism, based on each citizen's equal dignity. The meaning of the rule of law cannot be confined to matters of procedure, narrowly interpreted: ‘procedure’ is merely an aspect of ‘process’, whose integrity preserves the fundamental right of equality, or equal citizenship. Since due process supplements fair procedures by insisting on the application, by public officials, of appropriate criteria of decision, it imposes substantive limitations on their power. Legislative and administrative judgments alike must be made within a constitutional framework that identifies, and enforces, explicit and widely acknowledged precepts of justice. Conformity to these precepts ensures a genuine —substantive —equality of all before a law that serves a coherent (if capacious and adaptable) conception of the common good. This chapter discusses administrative justice and constitutional principle, judicial functions and executive agencies, and legislative classifications and the definition of ‘act of attainder’.

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Liberty, Equality and Due Process: Cases, Controversies, and Contexts in Constitutional Law

Ruthann Robson

Copyright Year: 2018

Last Update: 2019

Publisher: CALI's eLangdell® Press

Language: English

Formats Available

Conditions of use.

Learn more about reviews.

Reviewed by Melissa Randall, Instructor, Colorado State Board of Higher Education on 11/16/19

Professor Robson does an excellent job identifying and editing cases related to the current issues in Constitutional Law. While discussing some important historical cases and principles, her focus is on current legal standards and issues about... read more

Comprehensiveness rating: 5 see less

Professor Robson does an excellent job identifying and editing cases related to the current issues in Constitutional Law. While discussing some important historical cases and principles, her focus is on current legal standards and issues about which students will need and want to learn.

Content Accuracy rating: 5

Professor Robson's book is written as a law school case book. Her introductions to legal concepts are concise and as unbiased as possible given the hot button issues the cases address. She introduces the cases and poses reflection questions to encourage honest student dialogue around those issues.

Relevance/Longevity rating: 4

This book is subject to the dynamic nature of the evolving body of law. As soon as the courts announce opinions related to Constitutional rights, a case book will need to be updated. This is the unavoidable nature of law. However, this book is organized around legal principles in a way that should make updating the book relatively straightforward.

Clarity rating: 5

For a law textbook, this case book is very accessible to readers. The legal terminology is necessary and appropriate, especially when the precise meaning of the legal terms of art are at issue in the cases. It is clear that Professor Robson's goal is to help students understand the law, not to lose them in an avalanche of pedantic paragraphs.

Consistency rating: 5

Professor Robson's organization and presentation of concepts are consistent throughout the book.

Modularity rating: 5

The book is organized extremely well, especially given the complex legal principles in the cases. The book is organized by overarching legal concepts, with a brief introduction to the legal principles, followed by the relevant edited cases, and ending with homework/reflection questions. It is obvious that Professor Robson has devoted significant time thinking through how to present the information in modules for her students so that they can use the case book as their primary source for class preparation and discussions.

Organization/Structure/Flow rating: 5

The book follows a logical order of topics. After discussing federalism and judicial review, the book delves into the historical development of slavery and race issues. From there, the book starts to follow more thematic than chronological topics--equal protection in the context of different protected groups and evolving issues.

Interface rating: 4

This book focuses on the language of the court cases, along with written descriptions of them. As a result, there are not any interface issues regarding images and graphics. However, some of the edited cases may be challenging for students utilizing e-readers because of the density and formatting of the court cases.

Grammatical Errors rating: 4

For the length of the book, there are very few typos and grammatical errors. The main typo that I found affecting the meaning of the content is on page 149 in the discussion of Loving v. Virginia. There is a typo in the sentence regarding the year in which they pleaded guilty.

Cultural Relevance rating: 5

This case book discusses the equal protection of different protected classes under the US Constitution, with a final chapter discussing some state constitutional provisions. Therefore, it has extensive examples of individuals from different groups within our society. The tone of Professor Robson's writing is culturally sensitive and unbiased, even when the US Supreme Court Justices are not.

This book is written for law students who are studying Constitutional Law and, therefore, utilizes a traditional case book format. A case book may not fit the needs of instructors outside of the law school environment. However, Professor Robson's introductions and summaries of key legal principles may be useful in undergraduate law classes, and her editing of the court opinions is extremely well done. As a result, the edited cases may be useful for instructors to use when preparing for their classes, even if they do not assign the book to their students.

Table of Contents

• Chapter One: An Introduction to Constitutional Law and The Issue of State Action
• Chapter Two: Introduction To Constitutional Interpretation and Judicial Review
• Chapter Three: Slavery and Racial Equality
• Chapter Four: Race and Equal Protection
• Chapter Five: Nonracial Classifications and Equal Protection
• Chapter Six: Fundamental Rights and Equal Protection
• Chapter Seven: The Privileges or Immunities Clause
• Chapter Eight: Incorporation and Fundamental Rights
• Chapter Nine: The Second Amendment
• Chapter Ten: Unenumerated Rights and Due Process
• Chapter Eleven: Liberty, Due Process, and Equal Protection
• Chapter Twelve: State Constitutions

Ancillary Material

• Ancillary materials are available by contacting the author or publisher .

About the Book

This Casebook is intended to be used in a course which concentrates on Constitutional Rights and centers the Fourteenth Amendment. It can be used in a first year Law School course with a title such as “Liberty, Equality, and Due Process,” as it is at CUNY School of Law, an upper division Constitutional Rights course, or an advanced undergraduate course focusing on constitutional rights, especially equality and due process.

The Casebook begins with the threshold issue of “state action” which orients students to a basic but often under-taught principle of constitutional law. The Casebook then considers judicial review and constitutional interpretation. Chapters 3-6 center on equality, including slavery before the Reconstruction Amendments, equal protection for racial, gender, and other classifications, affirmative action, and fundamental rights in equal protection doctrine. Chapters 7-9 are shorter chapters that consider the Privileges or Immunities Clause, Incorporation of Bill of Rights provisions to the states, and the Second Amendment. Chapter 10 focuses on substantive due process, with Chapter 11 treating the “synergy” between due process and equal protection regarding fundamental rights. The brief last Chapter, Chapter 12, includes materials on state constitutional rights, which can be omitted or integrated into previous subjects.

About the Contributors

Ruthann Robson is Professor of Law and University Distinguished Professor at the City University of New York (CUNY) School of Law.

She is the author of FIRST AMENDMENT : CASES , CONTROVERSIES , AND CONTEXTS (eLangdell).

Her other books include DRESSING CONSTITUTIONALLY: HIERARCHY, SEXUALITY, AND DEMOCRACY (2013); SAPPHO GOES TO LAW SCHOOL (1998); GAY MEN, LESBIANS, AND THE LAW (1996); and LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992).

She is also the editor of the three volume set, INTERNATIONAL LIBRARY OF ESSAYS IN SEXUALITY & LAW (2011). She is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on constitutional and sexuality issues.

She is one of the 26 professors selected for inclusion in WHAT THE BEST LAW TEACHERS DO (Harvard University Press, 2013) .

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Legal Dictionary

The Law Dictionary for Everyone

Due Process

The Due Process Clause is included in both the Fifth and Fourteenth Amendments to the United States Constitution . The clause prohibits the government from depriving a person of their right to liberty or property without due process. This clause has helped the federal and state governments adopt fairness standards to ensure people’s rights are not violated. When the justice system fails to treat a person accused of a crime in a fair manner, this treatment violates the person’s rights to Due Process. To explore this concept, consider the following Due Process Clause definition.

Definition of Due Process Clause

• Clause included in the Fifth and Fourteenth Amendments to the United States Constitution ensuring that no person is deprived of his life, liberty, or property without due process of law.

Proposed in 1788, Fourteenth Amendment ratified to include Due Process in 1868.

Adoption of the Due Process Clause

The subject of Due Process dates back to 1215 when King John of England issued clause 39 of the Magna Carta. During his rule, King John promised his people that they would not be stripped of their basic human rights. This English rule set the standards for due process in the United States and other countries around the world. James Madison drafted the Due Process Clause in 1788, after New York asked Congress to consider adding “due process language” to the U.S. Constitution. Madison made some changes to the language recommended by New York, and Congress adopted the Bill of Rights as part of the Constitution in 1791. In 1868, the Fourteenth amendment was ratified to include a Due Process Clause.

Types of Protection Provided by Due Process

Though some laws in certain jurisdictions have slightly different interpretations of individual rights, they all prevent the government from harming a person without following the specified procedures of the law. This is known as “due process.” The Due Process Clause provides four basic areas of protection, all of which are overseen by the U.S. Supreme Court:

• Substantive due process
• Procedural due process
• Prohibition against vague laws
• As a means to incorporate the Bill of Rights

Substantive Due Process

Substantive Due Process pertains to those rights not listed specifically in the U.S. Constitution, but which are recognized as an important part of an individual’s liberty. Substantive due process is often related to areas such as voting, minorities, and the rights of children. When determining whether the government has violated a person’s substantive due process rights, the judicial system first determines whether the issue at hand was a fundamental right.

Procedural Due Process

Procedural due process protects individuals during governmental proceedings, whether they are civil or criminal. Procedural due process also pertains to parole hearings, governmental benefit hearings, and full criminal trials. The rights afforded in this section include, but are not limited to:

• The right to an unbiased trial
• The right to be given notice of the proposed trial and the reason for it
• The right of the individual to be aware of evidence against him
• The right to cross-examine witnesses for the opposition
• The right to present evidence and call witnesses
• The right to be represented by counsel

Prohibition Against Vague Laws

The Due Process Clause protects citizens against laws that are too vague for the average person to understand. If the laws are written in such a manner that an ordinary person cannot determine whether the conduct is expressly prohibited, or that a punishment can be rendered if they carry out the conduct, the court can determine the law to be “void for vagueness.” This prohibition against vague laws ensures that the laws are understandable and that ignorance cannot be used as a defense in criminal offenses.

Incorporating Protections into the Bill of Rights

The Bill of Rights was originally intended to apply only to the federal government , but the ratification of the Fourteenth Amendment placed prohibitions on the actions of individual states as well. As time went on, the Supreme Court made a number of rulings that certain state laws or policies violated protections guaranteed by the Bill of Rights, thus “incorporating” those protections, applying them to all U.S. citizens.

Related Legal Terms and Issues

• Fifth Amendment – The Fifth Amendment protects people from being tried for the same crime twice, and specifies that no person can be compelled to testify against himself.
• Seventh Amendment – The Seventh Amendment ensures an individual’s specific right to a fair trial.
• Fourteenth Amendment – The Fourteenth Amendment extends American citizenship to all people that are born or naturalized in the country.
• Ratify – To sign or give consent making something such as a law or Amendment officially valid.

Due Process of Law in the US Constitution

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Due process of law in government is a constitutional guarantee that actions of the government will not impact its citizens in an abusive manner. As applied today, due process dictates that all courts must operate under a clearly defined set of standards crafted to protect peoples’ personal liberty.

Due process of law as a legal doctrine first appeared in 1354 as a substitute for the English Magna Carta’s “the law of the land” in a statute of King Edward III that restated Magna Carta’s guarantee of the liberty of the subject. This statute read: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law .” Though the doctrine of due process was not directly upheld in later English law, it was incorporated into the United States Constitution.

Due Process of Law in the United States

Both the Fifth and Fourteenth Amendments to the U.S. Constitution contain a Due Process Clause protecting citizens against the arbitrary denial of life, liberty, or property by the government. These clauses have been interpreted by the U.S. Supreme Court as providing for the protection of these natural rights through both procedural and substantive law and the prohibition against vaguely stated laws. 

The Constitution’s Fifth Amendment adamantly commands that no person may be “deprived of life, liberty or property without due process of law” by any act of the federal government. The Fourteenth Amendment, ratified in 1868, uses exactly the same phrase, called the Due Process Clause, to extend the same requirement to the state governments. 

In making due process of law a constitutional guarantee, America’s Founding Fathers drew on a key phrase in the English Magna Carta of 1215, providing that no citizen should be made to forfeit his or her property, rights, or freedom except “by the law of the land,” as applied by the court. The exact phrase “due process of law” first appeared as a substitute for Magna Carta’s “the law of the land” in a 1354 statute adopted under King Edward III that restated the Magna Carta’s guarantee of the liberty.

The exact phrase from the 1354 statutory rendition of the Magna Carta referring to “due process of law” reads:

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken nor disinherited, nor put to death, without he be brought to answer by due process of law .” (emphasis added)

At the time, “taken” was interpreted to mean being arrested or deprived of liberty by the government.

‘Due Process of Law’ and ‘Equal Protection of the Laws’

While the Fourteenth Amendment applied the Bill of Rights’ Fifth Amendment guarantee of due process of law to the states it also provides that the states may not deny any person within their jurisdiction “the equal protection of the laws.” That’s fine for the states, but does the Fourteenth Amendment’s “Equal Protection Clause” also apply to the federal government and to all U.S. citizens, regardless of where they live?

The Equal Protection Clause was mainly intended to enforce the equality provision of the Civil Rights Act of 1866 , which provided that all U.S. citizens (except Indigenous Americans) should be given “full and equal benefit of all laws and proceedings for the security of person and property.”

So, the Equal Protection Clause itself applies only to state and local governments. But, enter the U.S. Supreme Court and its interpretation the Due Process Clause.

In its decision in the 1954 case of Bolling v. Sharpe , the U.S. Supreme Court ruled that the Fourteenth Amendment’s Equal Protection Clause requirements apply to the federal government through the Fifth Amendment’s Due Process Clause. The Court’s Bolling v. Sharpe decision illustrates one of the five “other” ways the Constitution has been amended over the years. 

As the source of much debate, especially during the tumultuous days of school integration, the Equal Protection Clause gave rise to the wider legal tenet of “Equal Justice Under Law.”

The term “Equal Justice Under Law” would soon become the foundation of the Supreme Court’s landmark decision in the 1954 case of Brown v. Board of Education , which led to the end of racial segregation in public schools, as well as dozens of laws prohibiting discrimination against persons belonging to various legally define protected groups.

Key Rights and Protections Offered by Due Process of Law

The basic rights and protections inherent in the Due Process of Law clause apply in all federal and state government proceedings that could result in a person’s “deprivation,” basically meaning the loss of “life, liberty” or property. The rights of due process apply in all state and federal criminal and civil proceedings from hearings and depositions to full-blown trials. These rights include:

• The right to an unbiased and speedy trial
• The right to be provided with notice of the criminal charges or civil action involved and the legal grounds for those charges or actions
• The right present reasons why a proposed action should not be taken
• The right to present evidence, including the right to call witnesses
• The right to know the opposing evidence ( disclosure )
• The right to cross-examine adverse witnesses
• The right to a decision based solely on the evidence and testimony presented
• The right to be represented by a lawyer
• The requirement that the court or other tribunal prepare a written record of the evidence and testimony presented
• The requirement that the court or other tribunal prepare written findings of fact and reasons for its decision

Fundamental Rights and the Substantive Due Process Doctrine

While court decisions like Brown v. Board of Education have established the Due Process Clause as sort of a proxy for a wide range of rights dealing with social equality, those rights were at least expressed in the Constitution. But what about those rights not mentioned in the Constitution, like the right to marry the person of your choice or the right to have children and raise them as you choose?

Indeed, the thorniest constitutional debates over the last half century have involved those other rights of “personal privacy” like marriage, sexual preference, and reproductive rights. To justify the enactment of federal and state laws dealing with such issues, the courts have evolved the doctrine of “substantive due process of law.”

As applied today, substantive due process holds that the Fifth and the Fourteenth Amendments requires that all laws restricting certain “fundamental rights” must be fair and reasonable and that the issue in question must be a legitimate concern of the government. Over the years, the Supreme Court has used substantive due process to emphasize the protections of the Fourth, Fifth and Sixth Amendments of the Constitution in cases dealing with the fundamental rights by constraining certain actions taken by police, legislatures, prosecutors, and judges.

The Fundamental Rights

The “fundamental rights” are defined as those having some relationship to the rights of autonomy or privacy. Fundamental rights, whether they are enumerated in the Constitution or not, are sometimes called “liberty interests.” Some examples of these rights recognized by the courts but not enumerated in the Constitution include, but are not limited to:

• The right to marry and procreate
• The right to have custody of one’s own children and to raise then as one sees fit
• The right to practice contraception
• The right to identify as being of the gender of one’s choice
• The right work at the job of one’s choice
• The right to refuse medical treatment

The fact that a certain law may restrict or even prohibit the practice of a fundamental right does not in all cases mean that the law is unconstitutional under the Due Process Clause. Unless a court decides that it was unnecessary or inappropriate for the government to restrict the right in order to achieve some compelling governmental objective the law will be allowed to stand.

• Bolling v. Sharpe: Supreme Court Case, Arguments, Impact
• Obergefell v. Hodges: Supreme Court Case, Arguments, Impacts
• Importance of the Magna Carta to the US Constitution
• Lawrence v. Texas: Supreme Court Case, Arguments, Impact
• 14th Amendment Summary
• Do Undocumented Immigrants Have Constitutional Rights?
• Gitlow v. New York: Can States Prohibit Politically Threatening Speech?
• Washington v. Davis: Supreme Court Case, Arguments, Impact
• Duncan v. Louisiana: Supreme Court Case, Arguments, Impact
• Civil Liberties: Is Marriage a Right?
• About the Civil Rights Cases of 1883
• Where Did the Right to Privacy Come From?
• What Is Judicial Review?
• Sex Discrimination and the U.S. Constitution
• Women's Rights and the Fourteenth Amendment
• The Fifth Amendment: Text, Origins, and Meaning

Our Cases: Due Process Rights

The National Health Law Program works with state and national partners to protect and ensure Due Process rights and make sure that state agencies are clearly explaining why decisions are made and giving people access to their legal right to appeal.

Automated Decision-Making Systems and Due Process Rights

Algorithms, artificial intelligence, and other automated decision-making systems (ADS) are omnipresent features of Medicaid and other health care systems. ADS make decisions about eligibility and services that greatly impact whether people get the services they need and for which they are eligible. Enrollees often do not understand ADS has made the decision or how, which may violate fundamental constitutional protections, including due process rights. From NHeLP’s decades-long experience working to stop harm from ADS in Medicaid, we know that ADS are rarely, if ever, going to be perfect. Learn more about our work ensuring due process rights regarding Automated Decision Making Systems here .

• Due Process

Maldanado (formerly N.B.) v. District of Columbia , D.C. District Court, D.C. Circuit"> Maldanado (formerly N.B.) v. District of Columbia , D.C. District Court, D.C. Circuit

Plaintiffs filed this class action case on behalf of Medicaid beneficiaries in the District of Columbia whose requests for…

Franklin v. Kinsley, Eastern District of North Carolina"> Franklin v. Kinsley, Eastern District of North Carolina

This case was formerly known as Hawkins v. Cohen. Adults and children enrolled in Medicaid filed a class action…

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws “the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so “harsh, freakish, and arbitrary” as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that “the punishment of death does not invariably violate the Constitution.” The Court ruled that the new death penalty statutes contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn’t solve our society’s crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called “war on drugs.” The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because “a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. “

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty “does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.” Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court’s ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that “the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation’s death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one’s conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that “the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims.” (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was “a constitutionally significant risk of racial bias….” (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was “best presented to the legislative bodies,” subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process…”

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet “approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.”) Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , “One searches our chronicles in vain for the execution of any member of the affluent strata in this society”(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. “Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.”(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted “… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court “do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.”

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge’s instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. “Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law.”

Even if the jury’s sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the governor’s final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be “a haphazard maze of unfair practices.”

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler’s explanation of the child’s cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury’s recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian’s behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants’ innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, “One of you two is going to hang for this.” Looking at Brandley, the officer said, “Since you’re the nigger, you’re elected.” In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant’s previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

“At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

“The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

“At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.” Afterwards, officials were embarrassed by what one observer called the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be a very clean manner of administering death.”

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a “cruel and unusual punishment.” Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

“When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

“At this point Don’s body started convulsing violently…. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

“After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

“Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die.” ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is “substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation.” ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

“The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.”

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 “the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser.” In 1988, during the execution of Raymond Landry, “a tube attached to a needle inside the inmate’s right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses.”

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. “I was ashamed,” writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. “I was an intruder, the only member of the public who had trespassed on [the condemned man’s] private moment of anguish. In my face he could see the horror of his own death.”

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

“If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The ‘last mile’ seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. ‘No more. I don’t want to do this anymore.'” 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. “I received more than seven hundred applications for the position, many of them offering cut-rate prices.” (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “useful” deterrent, it would still be an “example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – “making the punishment fit the crime.” If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, “As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder.” (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

“I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.’ I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief.”(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment.”

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out “You can’t fight murder with murder . . .(l)ife in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., “Capital Losses” 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs “approximately 42 percent more than a case resulting in a non-death sentence.” In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation’s most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.” (David von Drehle, “Capital Punishment in Paralysis,” Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina’s capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, “My frustration is more about the fact that the death penalty does not serve any useful purpose and it’s very expensive.” Don Heller, a Republican and former prosecutor, wrote “I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility.” Heller emphasized that he is not “soft on crime,” but that “life without parole protects public safety better than a death sentence.” Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. “Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety.” [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s (and society’s) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty “resource centers” charged with providing counsel on appeal in the federal courts. (Carol Castenada, “Death Penalty Centers Losing Support Funds,” USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism….” 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met–executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

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A Case Study in Due Process

The specific reasons for his conversion to Socialism and then to Trotskyism do not emerge clearly in his autobiography, The Case of the Legless Veteran . But it seems highly improbable that they were ideological; neither in his book, nor in his recorded testimony before any of the hearing boards he has faced in recent years, does Kutcher give any impression of familiarity with or even interest in the fine shadings of doctrine which distinguish Trotskyites from all other men, and the Socialist Workers party, to which he belongs, from all other Trotskyites. On the whole, Kutcher seems far more likely to have been motivated by personal loyalties; one gets the impression that these have, in his case, always been rather strong.

So far, his life was essentially uneventful. But it diverged from the pattern of millions of his contemporaries, who, while they had more or less similar experiences during the depression, did not become Trotskyites. Those who did never exceeded a few thousand in all. Except to the Communist party, which customarily cited them to the Dies Committee and similar bodies as proper objects of investigation, the Trotskyites hardly seemed a major menace. Kutcher’s Trotskyism seems to have supplied him with a social life of sorts, to have caused him to join a certain number of picket lines and distribute a good many leaflets, and to have filled many of his leisure hours with the addressing of envelopes. Essentially a shy and almost timid man, he appears to have done little if any direct proselytizing for his cause.

Then, on January 21, 1941, he was drafted into the United States Army. As a Trotskyite, he was opposed to the war; he was also theoretically committed to trying to win other soldiers over to the Trotskyite point of view. In fact, according to his own testimony and that of fellow soldiers, he did nothing of the kind. Instead, he tried to become a good soldier, obeyed orders, and on November 9, 1943, was seriously wounded by a mortar shell near San Pietro in Italy. On the same evening, both his legs were amputated. Then came almost two years of treatment and training in the use of artificial legs. Finally, on September 27, 1945, he was discharged from the army.

He received a disability pension. This, together with the small Social Security pay- received by his parents (and the fact that they lived in a low-rent public housing development), just about met the family’s expenses on a very modest standard. The rising cost of living placed Kutcher under increasing financial pressure; even more important, he wanted the feeling of usefulness and belonging that a job would give. He therefore took and passed a civil service examination, and in August 1946 he was appointed a clerk in the Newark office of the Veterans Administration.

Of this job, Kutcher writes:

My pay started at $38 a week, rising to $39 a year later. Veterans who wanted to get a loan under the GI Bill to buy a house or start a business had to come to the Loan Guarantee Division for a certificate of eligibility. I entered their claims in a register, stamped their discharge papers, and issued the certificate which was typed up by one of the girls in our office. My efficiency rating in this job was “excellent.” After more than a year, I was transferred to the Vocational and Rehabilitation Division where I handled contracts made between employers and veterans getting on-the-job training. I recorded information about the amount and frequency of wage increases due the veterans, checking to make sure the wage progressions were correct. My rating in this job was “very good.” Toward the end of my second year Congress passed a bill granting pay increases of about $6 a week to all civil service employees. . . . For the first time in my life, I had a sense of security. For the first time I had a real job. I was filling it satisfactorily, and although I did not magnify its importance I was making a slight contribution to the welfare of other veterans. But above all was the realization that I was not socially useless after all, that despite my disability I could hold a job like other people, that in certain ways I was even better off than before I was drafted! All in all, this was the happiest time of my life since my schooldays. . . . I remained a member of the party, interested as before in social and political developments, but not as active; I still took minutes at meetings, but had no time now to help in the clerical work. . . . And then on August 16, 1948, came a bombshell more stunning than any I ever experienced in the war: The manager of the Veterans Administration in Newark . . . handed me a letter telling me I was scheduled to be fired within 30 days on the ground that I was “disloyal” to the government of the United States.

_____________

Thus was James Kutcher launched on a career as a national figure. For from that day on, he has been engaged in a continuing fight to defend himself (and his parents as well) against the attacks of various government agencies.

The charges against Kutcher, brought under President Truman’s loyalty program, Executive Order 9835 of March 21, 1947, all arose out of his membership and activity in the Socialist Workers party. This ineffectual splinter group was certainly no instrument of any foreign power. It was devoted to the doctrines of Leon Trotsky, and was anathema to the Communists.

Nonetheless, it had long been an object of special concern to the government. Its leaders were the first persons prosecuted under the Smith Act. In 1941, years before the first prosecution directed against the leaders of the Communist party, eighteen major and minor leaders of the Socialist Workers party were convicted and sentenced to prison in a trial initiated by the then Attorney General, Francis Biddle. About the same time, Biddle drew up a more or less informal list of subversive organizations for the guidance of government agencies. This list included a number of Communist and Fascist groups, as well as the Socialist Workers party, the dissident Trotskyists of the Workers party (later called the Independent Socialist League), and the Industrial Workers of the World. Executive Order 9835 gave official status to a revised and expanded version of this list, drawn up by Attorney General Tom Clark. Membership in any organization on the list was to be considered as showing a need for further investigation of an employee’s loyalty. In drawing up the list, neither Biddle nor Clark gave any hearing to the organizations concerned. Later, the courts held (in the case of the Joint Anti-Fascist Refugee Committee) that the failure to grant a hearing was a violation of due process. Nevertheless, the Socialist Workers party has to this day been unable to secure such a hearing. (Its application for one was rejected by Attorney General Brownell on the ground that it was signed only by the party’s secretary, Farrell Dobbs, and not by its chairman, James Cannon.)

The lack of due process in establishing the Attorney General’s list does not, of course, mean that membership in organizations on the list is irrelevant to fitness for a sensitive position in the government. It merely means that the list itself is not valid proof of such relevance. Certainly there are a great many positions of such a nature that membership in the Socialist Workers party and adherence to its doctrines would be ample ground for disqualification. This is true even without going into the question of security—it is obvious, for instance, that a member of the SWP would not be a much better choice than Judith Coplon was for the position she held in the Department of Justice.

But the case of James Kutcher has never, in any of its aspects, even remotely involved security, or even suitability. The action taken against Kutcher seems to have been intended to punish him for his beliefs and affiliations, and it seems neither to have had nor pretended to have any other purpose.

Kutcher replied to the charges by affirming his membership in the SWP and challenging the validity of the loyalty program in general and the Attorney General’s list in particular. In accordance with the procedure established under the executive order, he was given a hearing before the Veterans Administration Branch Loyalty Board on September 10, 1948. The government representative opened the hearing by declaring: “The charges are based upon investigation, reports of which are in the possession of the Board, and no witnesses will be presented on behalf of the government. I wish to call the Board’s attention to the reply of the employee by letter dated August 25, 1948, wherein it was stated in paragraph 2, ‘I have never denied my membership in the Socialist Workers Party; I do not deny it now; on the contrary, I proudly affirm it.’ I have nothing further to present at this time.”

In accordance with the regulations under which it operated, the Board refused to permit any evidence designed to challenge the validity of the Attorney General’s designation of the SWP as subversive; it held that his decision on this point was binding on it. It did, however, permit Kutcher to testify as to his own beliefs, his relation to the party, and his interpretation of its doctrines. And the government stipulated that his job was not a sensitive one. On October 12, Kutcher received notice that, after considering all the evidence, the Board had decided that there were reasonable grounds for believing him disloyal, and that he was suspended from his job. Despite the formal reference to “all the evidence,” it was clear that his dismissal was based solely on his membership in the SWP.

Had there been any doubt on this point, it was dispelled by the decison of the Assistant Administrator of the Veterans Administration in response to Kutcher’s appeal. On December 29, 1948, he wrote: “. . . there is no choice but to affirm the action of the Deputy Administrator in suspending you from duty and pay. You have admitted and therefore it must be concluded to be a fact that you are a member of the Socialist Workers Party. . . . The Attorney-General has determined that the Socialist Workers Party is an organizaton that seeks to alter the form of government of the United States by unconstitutional means. The Veterans Administration is bound by that determination of the Attorney General. The Chairman of the Loyalty Review Board, in a memorandum dated December 17, 1948, copy of which is enclosed, states that section 9A of the Hatch Act makes it mandatory to remove from the service any employee found to be a member of that organization.”

Kutcher then appealed to the national Loyalty Review Board. Here his case was heard by a panel of three distinguished and liberal-minded men: John Harlan Amen, John Kirkland Clark, and Henry Parkman. The Loyalty Review Board agreed to hear testimony on the doctrines of the SWP from the party’s secretary, Farrell Dobbs—and then decided that the determination of the Attorney General was binding on it as a matter of law, and that it therefore had no choice but to affirm Kutcher’s dismissal. Kutcher was notified of this on April 25, 1949.

There remained the courts. Here, after the Federal District Court had upheld his dismissal, he secured a reversal from the Court of Appeals of the District of Columbia. The court held on October 16, 1952, that, despite the hearing board’s statement that it had considered all the evidence, the Administrator had based his action solely on Kutcher’s membership in the SWP. And this, it held, was insufficient basis for dismissal under the Executive Order. It therefore directed the Administrator to reconsider the case, taking all the evidence into account.

The Administrator, holding that the court had found fault with his determination, but not with the original loyalty hearing, did not convene a new loyalty board to hear the case de novo . He did, however, give Kutcher a new hearing before the VA’s Loyalty Board of Appeals. This took place on March 9, 1953. The Board questioned Kutcher rather extensively on his views; it was clearly seeking to develop further evidence, beyond Kutcher’s membership in the SWP, to prove him subversive. In response to specific and repeated questions, he reiterated his own opposition to the use of force, violence, or other unconstitutional means to alter the form of government of the United States. (In the original hearing, some very confused questions on these points had produced answers which were not models of clarity—although they were not inconsistent with the position Kutcher now stated unequivocally.)

Three points in the questioning deserve specific mention, because they were cited by the Board as part of the basis for its ruling, handed down on February 7, 1955, reaffirming Kutcher’s dismissal. In the questioning on his beliefs, the following colloquy took place:

Mr. Lynch (board member): Have you read the Communist Manifesto? Mr. Kutcher: Yes, sir. Mr. Lynch: Do we find therein representative views of Karl Marx? Mr. Kutcher: Yes, sir. Mr. Lynch: And you say that we would not find therein advocacy or force and violence? Mr. Kutcher: That’s right. Mr. Lynch: Do you advocate the course of action as advocated by Karl Marx? Mr. Kutcher: Yes, sir. Mr. Lynch: Does that include world revolution? Mr. Kutcher: That includes bringing about socialism all over the world. Mr. Lynch: Is that action based upon destruction by force and violence, if necessary, of our present capitalistic system, the system under which we live under the Constitution of the United States? Mr. Kutcher: It doesn’t say that at all.

In its decision, the Board used this as a basis for impeaching the integrity of Kutcher’s testimony, asserting: “He denied that the Communist Manifesto . . . contemplated revolution and destruction by force and violence, if necessary, of our present constitutional Government and way of life. Such denials were made in the face of his assertion of having read the Manifesto and, what appears to be, in fact, his fair understanding of the teachings of Marx set out, among other places, in the Communist Manifesto. . . .” The Board then quoted the concluding paragraph of the Manifesto, calling for “the forcible overthrow of the whole extant social order.”

The Board also asked Kutcher a number of questions as to whether he remembered certain activities of various individuals in the SWP. He answered that he did not; then, after a recess in which he conferred with his counsel Joseph Rauh, he changed his testimony and admitted that he did remember them and had denied it in order to avoid involving others. This also seemed to the Board to cast “serious question” on the integrity of Kutcher’s testimony.

And as a clincher, the Board cited Kutcher’s testimony, in answer to a hypothetical question, that if he knew “a very close friend” to be a member of the Communist party, he did not think he would voluntarily go and report him to the FBI if the individual in question had not committed any overt act against the government. On the basis of this, the Board declared: “In other words, his pretended loyalty to this Government is overcome by his admitted loyalty to those who seek to destroy it.” This writer suspects that if Kutcher’s answer on this point is proof of disloyalty, many, many other people would have to be branded as disloyal—though perhaps not all of them would be as truthful about it as Kutcher if their jobs were at stake.

Aside from these points the Board based its decision on the subversive character of the Socialist Workers party—buttressing its case by citing the evidence in the 1941 Smith Act trial.

Kutcher again appealed to the courts for relief. His petition, turned down by the United States District Court, is now before the United States Court of Appeals. It is based partly on procedural grounds, one of which is the use by the Board of evidence (including the material on the SWP’s subversive character) which had not been presented at the hearing so that Kutcher could refute it. It again challenges the listing of the SWP. And it maintains that dismissal from a non-sensitive post on the grounds given violates Kutcher’s rights under the First Amendment.

Meanwhile, new troubles were brewing for Kutcher. In July 1952 Congress passed the Gwinn Amendment to the Independent Offices Bill, barring from federally aided public housing all members of organizations on the Attorney General’s list. Hence the Newark Public Housing Authority demanded in December 1952 that all tenants of the Seth Boyden Housing Project, where Kutcher lives with his parents, certify that neither they nor any members of their families belonged to any such organization. Kutcher’s old and ailing father was not himself a member; neither was Kutcher’s mother. But as long as their son lived with them, they could not make the required certification. The Kutchers therefore went to court to seek an injunction against the enforcement of the requirement. This was granted by the lower court, appealed through various stages by the Newark Housing Authority, and affirmed on December 19, 1955, by the New Jersey Supreme Court, in a decision which avoids the constitutional issues involved. The Newark Housing Authority is seeking to appeal this decision to the Federal courts, which also have before them a number of other decisions in Gwinn Amendment cases by state and lower Federal courts—almost all of them favorable to the tenants. The United States Supreme Court will probably have to decide on the validity of the Gwinn Amendment. In view of the near unanimity of lower court decisions, the Court seems unlikely to uphold the provision; the question seems to be whether it will base its decision on the narrow grounds of lack of due process in the promulgation of the Attorney General’s list, or will deal with the broader constitutional issues.

The decision of the New Jersey Supreme Court came at a time when Kutcher was faced with what many regarded as the most outrageous attack of all. This was an attempt to deprive him of his disability pension on the ground of his membership in the SWP. On December 12, 1955, he was presented with a statement of charges and notice of suspension of pension payments, based on a provision of the law providing for the revocation of pensions in case of mutiny, sabotage, treason, or rendering assistance to the enemy. It was charged that by his membership in and activities on behalf of the SWP, Kutcher had assisted the North Koreans and Chinese during the Korean war.

This was the first time this provision had been invoked in a case similar to Kutcher’s. In the hearing on Kutcher’s case, which took place on December 30 before the VA’s Central Committee on Waivers and Forfeitures, the chairman stated that a number of cases of revocation under the same provision had taken place overseas. Further investigation reveals that most if not all of these were cases of veterans of World War I who had returned to their native countries and then served against the United States in World War II. If they had resumed their original citizenship—or perhaps had never become American citizens—they were obviously not guilty of treason. But they were certainly guilty of assisting the enemy. It appears more than probable that the law’s reference to “rendering assistance to the enemy” was intended to cover such cases, not to apply to persons whose political activities in the United States might be held to be indirectly of such assistance.

The actual precedent for the proceedings in the Kutcher case was the revocation of the disability pensions of two Communist leaders, Robert Thompson and Saul Well-man. Even these cases were by no means precisely parallel to Kutcher’s case; Thompson and Wellman had been convicted under the Smith Act—though not of the offense on the basis of which their pensions were revoked—and they had not concealed their sympathy for the Chinese and North Korean governments. But they were similar in that they represented a stretching of the law, of no conceivable benefit to the security of the United States, to deprive Americans of their contractual rights to pensions, under circumstances not contemplated by the law, for their political activities. (It is perhaps worth noting that after the Civil War, men who had risen in armed rebellion against the United States were nevertheless permitted to retain pensions based on prewar service.)

The threat to Kutcher’s pension resulted in an immediate outcry throughout the nation, from conservatives as well as liberals. Indeed, it would be hard to find a voice which defended the proposed revocation. The situation had, indeed, been similar when Kutcher was originally brought up on the loyalty charge in relation to his job. At that time, he had the support of almost every one of the many newspapers which commented on the case, as well as of organized labor and numerous other groups.

The one significant exception was the Communist party, whose West Coast organ, People’s World , declared on June 24, 1949: “To talk of ‘civil liberties’ for a Kutcher is to talk of ‘civil liberties’ for a Ward Warren or a Louis Budenz. It is to argue for the rights of a stool pigeon or a paid agent of fascism to sink a knife into the back of the people in their search for a better world. The American people are not in favor of awarding a purple heart to Hitler.” This position, however, completely isolated the Communists even from most of their closest friends; thus Kutcher received the support of Harry Bridges’ International Longshoremen’s and Warehousemen’s Union. Perhaps because of that experience, or because they had come to a belated realization that they could use the attack on Kutcher to serve their own purposes, the Communists now gave Kutcher half-hearted support.

Like the Communists, the Veterans Administration also now apparently realized that the Kutcher case was a very hot potato. Or perhaps it was simply that the law on pension forfeitures, by requiring that guilt be proved beyond a reasonable doubt, gave them an out which they lacked under the security program. In any case, the Committee on Waivers and Forfeitures ruled on January 6, 1956, that a reasonable doubt did exist and Kutcher could keep his pension.

The case of James Kutcher is in some ways the most outrageous example of its kind which has so far come to light. No other person seems to have been exposed to the multiple forms of jeopardy which the government has visited on him. But the infliction of a single injustice is bad enough, though a triple injustice is certainly worse. His case has a special pathos because of his personal circumstances; a persecution which would in any case be wrong becomes a supreme example of bureaucratic callousness. But James Kutcher’s physical condition is not the source of the wrong done to him; it merely aggravates it. Kutcher is a follower of Trotsky. But the treatment to which he has been subjected would be no more just if he were a Communist. The country is certainly no safer now that Robert Thompson and Saul Wellman have been deprived of their disability pensions and, it is reported, called on to refund the payments they have received since the end of the war. (Even under the Veterans Administration’s own highly questionable interpretation of the law, there would seem no basis for this last demand; the United States was not at war with any Communist power prior to 1950. It should also be noted that, even if Thompson’s conviction under the Smith Act were considered a substitute for a hearing on the charge of rendering assistance to the enemy, all the acts involved in his trial took place before 1950 and hence have no relevance to the charge; he has been convicted without a hearing of any sort in respect to the only acts relevant to the pension case, those committed during the Korean war.)

If the revocation of veterans’ pensions has been based on a strained and questionable interpretation of the law, the denial of Social Security funds to former Communist party officials (e.g. Alexander Bittelman) is based on a fantastic one. The assertion that the Communist party, because it has been designated as an agent of a foreign government by the Subversive Activities Control Board, comes under the exclusion of foreign government agencies from the provisions of the Social Security Act, represents a deliberate confusion of two very different things. The type of foreign government agency excluded from the Social Security Act has diplomatic or consular status; its exclusion follows from the legal inability of our government to tax it. It does not appear likely that the government plans to confer diplomatic immunity on the officials of the Communist party. The status of that party, under the determination—with which this writer agrees—that it is a foreign agent, is analogous to that of the various public relations firms which are paid propagandists for foreign governments. And it has not been suggested that they be excluded from the Social Security Act. (Of course, if the Communist party had not paid Social Security taxes, it would have been prosecuted for failing to do so.)

Some of these things have been done without warrant in law, or under laws of doubtful constitutionality. Others may be legally sound. But all of them have in common an absence of relation to any genuine considerations of security, a lack of moral justification, a departure from the basic principle that punishment shall be inflicted only in the form of prescribed penalties for definite offenses after a fair trial.

Any limitation of liberty without a clear need is tyranny; any injury to the individual without a clear benefit to society is pointless cruelty; any punishment without adequate grounds or due process of law is injustice. No matter what guilt men may bear, we still retain a basic responsibility toward them as human beings as long as we permit them to live at all—yes, even though they may be Communists or Fascists.

When the Russian army entered Germany near the end of the war, a Russian soldier whose whole family had been slaughtered by the Nazis vowed to an American correspondent to kill every German who fell into his hands. A few days later the correspondent observed him giving a cigarette to a German prisoner, and asked him how he explained his change of heart.

“Well,” said the soldier, “one kills, or one lets live. And if one lets live, a man must smoke.”

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Case: Individual Employment Rights/Procedural Due Process (M.D. Ala.)

An Alabama federal district court granted summary judgment to the top officials at Auburn University’s College of Veterinary Medicine on the claims of a scholarship advisor that she was discharged without being given adequate due process in violation of 42 U.S.C. § 1983, stating that the university showed that the advisor was given ample notice of the charges against her and provided adequate opportunity to be heard before her discharge.

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The Editorial Board

Donald Trump and American Justice

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values . It is separate from the newsroom.

The former and possibly future president of the United States is now on trial in Lower Manhattan, the first criminal prosecution of an American elected to the nation’s highest office. Donald Trump, who relentlessly undermined the justice system while in office and since, is enjoying the same protections and guarantees of fairness and due process before the law that he sought to deny to others during his term.

A jury of Americans will ultimately decide Mr. Trump’s legal fate. It may be the only one of the four criminal cases against the former president that comes to trial before the November election. Though the election interference charges are not the most serious of those he faces, the case will determine whether 12 of his fellow Americans find him guilty of a felony — a result that most voters say they would consider to be serious.

In the first two days of this trial, Mr. Trump has offered a defense of himself to the public, in brief appearances between his courtroom table and the television cameras: He portrays himself as a victim of an unfair and politically motivated prosecution. That defense is built on lies. Mr. Trump is no victim. He is fortunate to live in a country where the rule of law guarantees a presumption of innocence and robust rights for defendants.

A guiding principle of the American experiment is that the law applies to everyone equally. At the same time, prosecuting any current or former elected official requires vigilance against bias and awareness about how the case will be perceived by the public. For this reason, judges and prosecutors have an obligation to hew to stringent standards of fairness, to reduce the risk that they appear to be interfering in electoral politics by using criminal cases to damage or favor one candidate over another.

The former president refers to the four prosecutions he faces as “witch hunts” motivated by partisanship and part of a nefarious scheme to keep him from returning to the White House. He has repeated this narrative even though the prosecutions have been brought by different prosecutors around the country, and even though different grand juries, each composed of a random selection of regular citizens in different states, handed up indictments that now total 88 felony charges against him.

In the weeks leading up to the start of this trial, Mr. Trump has argued, dishonestly, that the judge and the prosecutor have treated him unfairly, and that it will be impossible for him to get a fair trial in Manhattan because New Yorkers are biased against him. But the opening days of the trial, devoted to jury selection, have already demonstrated the great care and respect with which everyone involved in the trial, except for Mr. Trump, has treated the process. Joshua Steinglass, a member of the office of the Manhattan district attorney, Alvin Bragg, told potential jurors on Tuesday that the case “has nothing to do with personal politics.”

“We don’t suggest you need to have been living under a rock for the last eight years, or the last 30 years,” he said . “We don’t expect you not to have heard about this, or not to have discussed this case with friends. What we do need is for you to keep an open mind.”

Dozens of potential jurors took those instructions seriously and admitted they could not be impartial. One man was excused from service after telling the judge that it was “going to be hard for me to be impartial,” since many of his family members and friends were Republicans. Justice Juan Merchan, the judge overseeing the trial, excused him, as other potential jurors stepped up. So far, seven jurors have been seated. At least two potential jurors were dismissed by the judge because of social media posts.

If anything, Justice Merchan has exhibited an extra degree of tolerance for Mr. Trump’s strategy of systematically attacking the legitimacy of the courts and court officials through repeated verbal outbursts and countless legal motions and other attempts to delay his trials. In the New York case, Mr. Trump received a short extension last month when federal prosecutors found a tranche of documents that had not been turned over to the defense team. In the week before the start of the trial, he filed three emergency appeals in three days , as The Times reported, including a civil action against the judge, which were quickly rejected by an appeals court.

The fact that he was able to have each of these motions fully considered is evidence of the justice system operating as it should, with deliberation and due process. Especially in criminal prosecutions, courts take the legal rights of litigants very seriously, to ensure that defendants receive fair trials. An appeals court is still considering Mr. Trump’s request to throw out a gag order that prevents him from verbally attacking witnesses, prosecutors or the judge’s family, but it will not delay the trial before the ruling. (Mr. Trump is not prevented from publicly criticizing the judge.)

In the other criminal cases against him, Mr. Trump has also been able to take full advantage of every legal protection available to him as a defendant.

He appealed his federal prosecution related to the Jan. 6 insurrection at the Capitol on the grounds that he enjoys absolute immunity for actions he took as president. This argument has been rejected by every judge to consider it. Still, the Supreme Court agreed to hear the appeal later this month, delaying the start of his trial in that case indefinitely, and possibly until after the election. While the Supreme Court weighs his immunity claim, the trial judge in the federal Jan. 6 case, Tanya Chutkan, put the proceedings on hold . In the other federal prosecution, on charges of illegally withholding highly classified national-security documents, Mr. Trump has had numerous favorable rulings from the judge handling that case.

The election-interference case out of Georgia was delayed by an extensive hearing on a possible conflict of interest for the lead prosecutor, Fani Willis, who had been in a romantic relationship with Nathan Wade, an outside prosecutor she hired to lead the case. After taking testimony from a series of witnesses, the judge decided Ms. Willis could remain on the case, but not with Mr. Wade. (Mr. Wade ultimately withdrew.) Mr. Trump appealed that decision, which the Georgia Court of Appeals is now considering.

The ability to file such appeals, successful or not, is essential to how the law functions in the United States. Despite having benefited from its protections, to Mr. Trump, the rule of law is nothing more than an obstacle to be overcome, an instrument of power to use at will.

Mr. Trump’s vision of an American legal system that protects his interests goes beyond his trial, of course, and extends in particular to the Justice Department. He has been explicit about his desire, if elected in November, to bring the Justice Department more fully under his control, to use it to protect his friends and, more important, punish his enemies. As president, Mr. Trump had an unparalleled record of abusing presidential pardons, and if he is re-elected, he appears likely to order the Justice Department to drop the criminal cases against him or to try to pardon himself for potential crimes. To Mr. Trump, independent prosecutors and Justice Department officials are precisely the problem. They will say no to him when he wants to do things that are illegal or unconstitutional, choosing to be faithful to the Constitution rather than to him. This Mr. Trump cannot abide.

Mr. Trump has said he intends to find a prosecutor to “go after” Mr. Biden and his family , suggesting that he intends to pursue prosecution with little regard to evidence or facts. According to The Washington Post , he also wants to investigate figures in his administration whom he perceives as being disloyal to him, including John Kelly, his former chief of staff; William Barr, his former attorney general; and Gen. Mark Milley, the former chair of the Joint Chiefs of Staff. (Mr. Trump has separately suggested General Milley should be executed for treason.)

As Mr. Kelly told The Post, “There is no question in my mind he is going to go after people that have turned on him.”

Mr. Trump has also repeatedly said that his prosecution is like no other. In fact, there are numerous examples of politicians, of both parties, who faced prosecution, and in some cases were convicted, during their candidacies. The former Texas governor Rick Perry, a Republican, ran for president in 2016 while under indictment for abuse of power . (Those charges were later dismissed.) Senator Robert Menendez, a Democrat of New Jersey, was indicted on federal bribery charges, and may run for re-election as an independent.

The former president is singular in one respect: As much as he accuses others of warping the justice system, he is the one who consistently demeans and disparages the role of the courts and the exercise of due process. The leaders of the Republican Party, echoing the views of Mr. Trump’s fervent base of followers, have fallen in line behind him, indicating that they will continue to support his candidacy even if he is a convicted felon.

While a Manhattan jury weighs the evidence of Mr. Trump’s alleged crimes, it’s the American people who will weigh the evidence of Mr. Trump’s actions. His party has allowed him to act with impunity, but voters still have the power to deliver accountability. They should consider not only the facts presented during the trial — the details about his judgment, his character and the way he conducted his life and his business — but also his disregard for the rule of law and his willingness to demean American justice when it suits his interests. Those actions render him manifestly unfit for office and would pose unique dangers to the United States during a second term. The greatest of those dangers, and the one that Americans should be most attuned to, is the damage that a second Trump presidency would inflict on the rule of law.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow the New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

Updated Biden administration rules will soon affect students across US: What to know

Students and school employees across America will be impacted in the fall by new changes to a rule that affects all federally-funded schools.

Practically, it's a sweeping update to how schools will have to handle sex discrimination and abuse cases. Politically, it's a part of a power struggle between the Trump and Biden administrations.

What's new? The Biden administration released a new set of rules this week overhauling the Trump administration's Title IX rules – which gave more rights to alleged perpetrators of sexual assault and harassment. The new rules also stipulate further protections for LGBTQ+ students as well as parenting and pregnant students.

What is Title IX? Title IX is a civil rights law that bans sex discrimination against students, employees and others at public schools, colleges and universities that receive federal funding.

What were some of the old rules? For cases of sexual assault, they stipulated that schools only had to investigate claims that met a certain threshold of sex discrimination and were made through a formal reporting process. It also raised the bar of proof for sexual misconduct on college campuses. They prohibited investigations of cases that occurred off campus.

Why does the change matter? Critics argued the Trump-era rules prevented people accused of sexual harassment, assault or discrimination from facing repercussions. Supporters contended the rules rightly strengthened due-process protections for accused students or faculty members.

Biden's new Title IX rules will affect people on the nation's school campuses starting in August.

What happened this week?

The Biden administration's new set of guidance overhauls Trump-era rules that in part narrowed which and how schools could investigate sex discrimination cases. President Joe Biden in his 2020 presidential campaign vowed to overturn the changes made under Education Secretary Betsy DeVos.

The new rules expand the definition of sexual assault and harassment. That means schools could investigate more cases of discrimination, abuse or harassment filed by people on school campuses under the scope of the law.

College student survivors will no longer be required to attend live hearings or go through cross examinations. And people will be given the right to "prompt and equitable grievance procedures," the rule reads.

LGBTQ+ students will be guaranteed protection under the law if they are discriminated against for their gender identity or sexual orientation.

Pregnant and parenting students who might receive unwanted sexual attention, shame or punishment at schools will also be granted more protections from sex discrimination in the admissions process and on campus.

“These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights," said U.S. Secretary of Education Miguel Cardona.

Who is impacted by the changes to Title IX?

The rule changes have a wide range of effects on students, among the most notable examples:

• Sexual assault survivors : The new rules will have sweeping effects on survivors of sexual misconduct and those accused of crimes. Among the changes: The definition of sexual assault will be expanded in K-12 schools and colleges.
• LGBTQ+ students : Biden's Title IX update stipulates protections from sex discrimination based gender identity for the first time.
• Pregnant and parenting students : The new regulations extend the definition of "sex-based harassment" to include pregnant people on campuses.

Ruling on transgender student participation in sports remains unsettled

The Biden administration did not rule on whether transgender and nonbinary students can participate on the sports teams that align with their gender.

The administration released a proposed rule in April 2023 that said schools and colleges largely could not ban nonbinary and transgender students from sports teams in the new Title IX rules.

Contact Kayla Jimenez at [email protected] .  Follow her on X at @kaylajjimenez.

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In re Name Change of Nichols

The case revolves around the petitioner, Tom Nichols, also known as Nikki, who is currently serving a prison sentence for sex crimes against children. Nikki, a transgender woman in the process of transitioning, filed a petition for a sealed-record name change, arguing that an open-record proceeding could jeopardize her safety due to her gender identity. The District Court of the Third Judicial District initially denied Nikki's petition. The court's decision was based on the fact that Nikki failed to demonstrate probable cause that her safety was at risk, a requirement under Section 27-31-201, MCA, for a petition to proceed on a sealed-record basis. The court also had to be satisfied that the petitioner was not attempting to avoid debt or hide a criminal record. Upon appeal, the Supreme Court of the State of Montana affirmed the lower court's decision. The Supreme Court noted that district courts have broad discretion to grant or deny a petition for a sealed-record name change. The Supreme Court would only reverse a district court decision if it was arbitrary or exceeded the bounds of reason, resulting in substantial injustice. In this case, the Supreme Court found that Nikki failed to provide specific instances of abuse or explain why an open-record proceeding would change her circumstances at the Montana State Prison. Furthermore, Nikki did not provide any support for the alleged risk of harm from members of the public. Therefore, the Supreme Court concluded that the District Court did not abuse its discretion when it determined the evidence was insufficient to support Nikki’s petition.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

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