05/15/2013 12:12 pm ET Updated Jul 15, 2013

Should Jodi Arias Have the Right to Choose the Death Penalty?

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Less than twenty-four hours after Jodi Arias was found guilty of the first-degree murder of her ex-boyfriend, the 32-year-old former waitress told a local Arizona television station that she would rather die than spend her life in prison, calling death "the ultimate freedom." Raising the question: Should Jodi Arias and other convicted murderers be allowed to choose the death penalty? At first glance, the death penalty appears to be the harsher sentence but if Arias prefers death, does life in prison become the harsher sentence? Would allowing her to die, absolve her of the punishment the sentence is meant to impose?

Since 1977, more than 100 inmates have "volunteered" for death according to John H. Blume, author of Killing the Willing: "Volunteers," Suicide and Competency. These inmates differ from Arias in that they were already on death row and simply waived their rights to appeal. Oklahoma City bomber Timothy McVeigh is among them. In some cases, the inmates' own lawyers tried to prevent them from not exhausting their rights to appeal. One lawyer argued his client should not be executed because he would see it as a reward rather than a punishment. Other lawyers have argued that their clients are not mentally competent to waive their rights to appeal. In some of those cases, the lawyers have claimed that their clients went insane, living for years on death row with limited exposure to people or even sunlight. Some death penalty opponents may call the conditions depraved or inhumane and say that for death row inmates, death becomes the more desirable option.

Gary Gilmore, the first inmate sentenced to death after the Supreme Court of the United States re-instituted capital punishment in 1976, abhorred the thought of staying on death row. He waived his rights to appeal and "volunteered" to die. His mother fought him in court, calling him incompetent. The majority ruled in Gilmore's favor and he was executed by firing squad.

It is in the dissent of the court's decision in Gilmore that we see a hint of how our highest court may rule if it was ever faced with the question, of whether a defendant like Arias, rather than a judge or jury should be allowed to choose her own sentence and choose death over life in prison. In the dissent, the Justices express two concerns. First, they are concerned that if a defendant is allowed to choose death, the state could become a vehicle for state-assisted suicide.

This argument recalls the case of Virginia inmate Robert Gleason Jr. He was sentenced to life in prison for murder but so desperately wanted to die that he killed two inmates and threatened to continue killing until he was sentenced to death. Rather than viewing death as a reward, Gleason saw it as a way of accepting responsibility. He told the Associated Press that he wanted to die so that his sons would learn from his mistakes. He was ultimately sentenced to death leading some to say that the State of Virginia turned itself into Gleason's own Dr. Kevorkian and assisted his suicide. This also led some to surmise that Gleason's killing spree would encourage copycats to also kill inmates to escape their life sentences and compel the state to execute them.

The dissenting justices in Gilmore also expressed another concern. They wrote that just because a defendant consents to death, it does not mean that the State can impose that punishment without violating the Eighth Amendment's prohibition on "cruel and unusual punishment."

It is the Constitution's prohibition on "cruel and unusual punishment" that underlies much of the evolution of death penalty laws in this country. The death penalty is only constitutional if its application does not result in cruel and unusual punishment. SCOTUS has ruled that a punishment is cruel and unusual if any of the following apply: "it is too severe for the crime, it is arbitrarily applied, it offends society's sense of justice or it is not more effective than a less severe penalty." It is the jury's role as a representative pool of society to determine whether the sentence is proportional to the crime.

In 1953, Julius and Ethel Rosenberg were executed for espionage. Up until 1977, people were ordered executed for crimes like rape. SCOTUS later said in one Georgia case that death was an "excessive" and "grossly disproportionate" punishment for the crime of rape. Thus, the death penalty law soon evolved to prevent the death penalty from being applied arbitrarily and murder almost exclusively became the standard for its application. SCOTUS later further limited its application and overruled the planned execution of convicts who were deemed insane, below the legal age or in some states, mentally retarded. Eventually, SCOTUS ruled that the death penalty could not be applied to "ordinary murder" and in a 1980 case out of Georgia, it ruled that for the death penalty to apply there should be "aggravating factors." That brings us to the Arias case and how it all ties in.

Arias is in the sentencing phase of her trial, called the "aggravating" phase. Jurors must find that at least one of ten aggravating factors exists to warrant the death penalty. The aggravating factors are outlined in the Arizona State Statute. Among them, are murders for hire, murders of law enforcement officers, and so on. The only aggravating factor that would fit the facts of the Arias case is the one that requires jurors to find that Arias killed her boyfriend Travis Alexander in an "especially heinous, cruel, or depraved manner."

The facts of the case could support such a finding. Arias admitted on the stand that she slit her ex-boyfriend's throat and prosecutors later used autopsy reports to try to prove that after a gunshot wound to the head and nearly 30 stab wounds, Alexander died a slow and painful death. So the death penalty is believed to be an option in this case. If Arias were allowed to choose it and the jurors did not go through the process of deciding whether the aggravating factors apply in this case, the death penalty would not comply with the Eighth Amendment. The process of determination by independent jurors is an essential part of what makes the death penalty's application constitutional.

Travis Alexander's friends have said they would prefer Arias be sentenced to death. Some members of the public have said "an eye for an eye" should apply and Arias should die. Arias says she wants to die. However, we see that the Court's main underlying concern may not be the preference of the convict or the victim's family but rather the concept of upholding the protections of the Constitution and making sure the death penalty is applied in the same procedural way in every case.

Of course, there are arguments to be made on both sides of the issue. Death penalty advocates could argue that it costs as much as $3 million dollars to execute a single prisoner on death row and that allowing Arias to die would reduce the public cost to house her, file her appeal, and keep her on suicide watch. Arias's family and death penalty opponents may argue that the death penalty is inhumane and that she should be kept alive.

One can also argue that defendants have the right to plead guilty, the right to waive a trial by jury and the right to waive an appeal so why not the right to choose death over life in prison?

For now, convicted murderers cannot choose their own sentences. However, the law is a living, breathing and evolving phenomenon that can change in an instant if the right case with the right factual circumstances reaches the U.S. Supreme Court. This could be it.