Home » Capital Punishment » Boaz’s Blog 007. Capital punishment and the right to life.

Boaz’s Blog 007. Capital punishment and the right to life.


I once had a role in a capital punishment case that only became controversial after trial and sentencing. That’s because the defendant declined to appeal and wished to proceed with the scheduled date of execution. His would be the first execution of an American convict in more than ten years. His public defender attorneys their client’s choice not to appeal. Instead, they applied for and received a stay of execution, pending appeal. That’s when I entered the case.

I appeared with my recently retained client, Gary Gilmore, and asked the Utah Supreme Court to remove the stay of execution. The Court obliged, and ten weeks later Gilmore was dead; executed by firing squad. Suicide by judicial process, you might say.

It took me more than twenty years to admit that I had been wrong to assist Gilmore with his execution. Not that I went against the law or Gilmore’s intent. But, I was morally wrong to assist in the process of capital punishment; an act contrary to humanity’s higher values.

How do I know capital punishment is morally wrong? There came a tipping point for me when the data confirming racial and class discrimination in all phases of the criminal justice system, the disproportionate number of black and Latino convicts executed and awaiting execution, the numerous cases of faulty eyewitness testimony coupled with my professional experiences with it, and my belief in the rights to life and love, were so cumulatively overwhelming that I could no longer rationalize my role in Gilmore’s execution. The perpetuation of a system of justice meeting out decisions of life and death that has been proven to be ineffective and deeply flawed is, of itself, immoral, if not, cruel and unusual.

If you have read more than two of my blogs you know that I believe, as did the framers of the Declaration of Independence, that governments are created to secure people’s’ rights. I also believe that all rights of the Declaration of Independence should be included in the Constitution by way of constitutional amendments. Congress made it clear in the Ninth Amendment that human rights are independent from the form of government and are not to be demeaned because they are not included in the Constitution. These reminders are but a way of laying a foundation for the argument that the right to life (of the Declaration of Independence) should be a part of the Constitution; effectuating the end of capital punishment.

I have intermittently pondered why such fundamental and obvious rights as equality, democracy, life, liberty, the pursuit of happiness, happiness, and safety are not included in the Constitution. My conclusion is that the rights of the Declaration are notably absent from the Constitution because the will was not there to enforce the Declaration’s rights and to have pretended otherwise would have been a complete act of hypocrisy.

How could, in good conscience, constitutional delegates of 1787 acknowledge a right to equality when it was patently untrue in 1787 America that all men were treated as equals by government and society.  After all, indentured white male servants and other white men without property could not vote in public elections. And then, there was the denial of suffrage and equal protection of the law for women, native Americans, and slaves. With ongoing, overwhelming, and obvious evidence of inequality in America, it is not surprising that the right to equality never made it into the Constitution.

It would have been a complete hypocrisy had the Constitution acknowledged the right to liberty with so many indentured servants and millions of blacks kept in slavery and with ongoing regional genocidal wars and policies directed against native Americans?

How could the federal government guarantee the right to the pursuit of happiness if the right to an education was not a fundamental right?

The right to democracy (government by consent of the governed) could not have been guaranteed by a Constitution that imposed a buffer against democracy in the form of an Electoral College that negates the individual vote and a Cesarean type presidential veto that can thwart the will of the people’s elected representatives.

How could a constitutional right to safety have been enforced without a strong military and border defense, good health of citizens, or safe living and working conditions?

What a sham it would have been had the constitutional delegates of 1787 given citizens the right to “alter or abolish” the form of government whenever it becomes destructive of its goal to secure people’s rights; especially since there were no other rights recognized by the 1787 Constitution. (The first ten amendments were introduced and passed by Congress in 1789 and ratified by the states in 1791.)

The alter or abolish provision of the Declaration is partially resurrected in its diluted form as Article Five of the Constitution. Article Five allows citizens to convene a convention “for proposing amendments” to the Constitution, but only after 2/3 of all state legislatures apply to Congress to call for one. An Article Five Convention is my goal. It is this website’s goal. Had Article Five been a duplicate copy of the right to “alter or abolish” provision, we would have likely had several Article Five conventions by now.

At its most basic level, the right to life could not be guaranteed by a government that, in 1787, sanctioned capital punishment for non-capital crimes, and killed native Americans wantonly and slaves arbitrarily. For reasons expressed in an earlier blog, I believe the right to life is far more expansive than its literal meaning. I believe it is the equivalent of the right to a wide range of social rights; including voting rights, social pensions, public accommodations, and much more. More important than any other facet of the right to life means no more state sanctioned killing. And when Americans reach the humane conclusion, as the European Union has already done, to stop the legal killing of each other, perhaps we’ll begin to look at war with a different perspective as well.

In conclusion, the right to life and all other rights of the Declaration of Independence should be proposed and passed as constitutional amendments at an Article Five Convention.


Next: Blog 008. Student debt, free college, and the right to pursue happiness.

If you found this article to be provocative, you’ll find Boaz’s book, Seven Rights for Citizen Slackers to be revolutionary.  Expected publication in soft cover and e-book by late September or early October, 2016. Download 3 Free Chapters from the book here http://www.article5alive.org/signup/