Worried about government tyranny? Missouri executing Ernest Johnson should scare you

Missouri has been in the national and international news for what many consider an unconstitutional and immoral execution. On Oct. 5, the state put Ernest Johnson to death after Gov. Mike Parson refused to grant him clemency, despite pushback from community clergy, a former Missouri governor and Pope Francis.

Missouri is not alone in the United States for its willingness to press forward with legally and morally questionable executions. In 2017, Arkansas Gov. Asa Hutchinson ordered the execution of seven men in 11 days, as the state’s stock of lethal injection drugs was set to expire. The American Bar Association responded to by urging the importance of the constitutional right to due process. In 2014, Oklahoma perpetrated the callous and botched execution of Clayton Lockett, who had to be injected multiple times with needles in his arms, neck and groin. He ultimately died from a heart attack, not the drugs.

The Eighth Amendment of the Constitution prohibits “cruel and unusual punishments.” We hold the view that the death penalty is unconstitutional, regardless of the crime perpetrated. Many people who call themselves “constitutional originalists,” embodied most prominently perhaps by late Supreme Court Justice Antonin Scalia, believe that originalism allows for — and perhaps demands — a death penalty, because most states at the time of constitutional ratification had a death penalty.

This is mistaken, for at least two reasons. First, Scalia tempered his originalism in some death penalty cases, such as juveniles being put to death, despite its widely accepted practice at the time of the Eighth Amendment’s writing. This led Craig S. Lerner of George Mason University’s Antonin Scalia Law School to observe: “When America’s most famous originalist confronts the common law infancy defense in all its barbarity, he is apparently driven into the camp of ‘living constitutionalism.’”

Second, it overstates the sentiment toward government penalties in the early days of the republic, when constitutional contours were still being established. American criminal punishments were reduced between 1776 and 1789. That is, in the wake of throwing off the repressive shackles of monarchy, the original intent of the framers was to prevent excessive punishments by a government. For example, William Bradford, a close friend of James Madison and the second U.S. attorney general, argued that solitary imprisonment is worse than death itself, and should be preferred. Further, he stated, “the prevention of crimes is the sole end of punishment,” and “every punishment which is not absolutely necessary for that purpose is a cruel and tyrannical act.”

In 1821, Thomas Jefferson wrote in his autobiography that Cesare Beccaria, an Italian philosopher who fervently opposed capital punishment, “had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death; and hard labor … had been suggested as a proper substitute.” This simply confirms that many early American leaders felt the same way — including no less than Madison and Benjamin Franklin.

Thus, originalists should consider the tendency toward moderating punishment as the intent of the Founding Fathers and the framing generation that followed. If anything, then, the move to limit and eventually perhaps end the death penalty in the United States is found within the spirit of the nascent Constitution.

Ending the death penalty, then, aligns with the moderation of state penalties between the Declaration of Independence and the ratification of the Constitution. The Supreme Court has sometimes upheld this interpretation, as in Coker v. Georgia, which forbids the death penalty in the rape of an adult; Kennedy v. Louisiana, which forbids the death penalty in rape more generally; Ford v. Wainwright, which ends the practice of killing the criminally insane as “savage and inhumane;” and Atkins v. Virginia, which forbids state execution of person who is intellectually disabled. All these decisions are aligned with the original ideological intent of the framers, who knew that, as Jefferson remarked, that the death penalty was a “revolting principle.”

On Johnson’s execution, Parson said that the state was “prepared to deliver justice and carry out the lawful sentence.” Yet the Founding Fathers were quite aware the vengeance is not justice — it is revenge. An eye for an eye does not bring closure. It brings trauma. The Constitution was designed to prevent the tyranny of government acting as God. The continued reliance on the death penalty is not justified through originalism, nor is it justified morally.