Death Penalty: Constitutional Or Not?

The death penalty, also known as capital punishment, is a highly contested topic in the United States. While Congress and state legislatures have the power to prescribe it for capital offenses, its constitutionality has been challenged on the grounds of cruel and unusual punishment. The Eighth Amendment, which protects against this, has been central to these debates, with the Supreme Court ruling that while the death penalty is not inherently unconstitutional, procedural safeguards must be in place to prevent discriminatory application. The Court's intervention in Furman v. Georgia in 1972, where it invalidated existing death penalty laws, set a precedent for evaluating the appropriateness of punishments according to evolving standards of decency. This decision, along with others like Kennedy v. Louisiana in 2008, has shaped the application of the death penalty, with 35 states rewriting their laws to address issues of arbitrariness and discrimination. Despite these reforms, concerns remain about the discriminatory application of the death penalty, particularly against minority and impoverished communities.

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The death penalty and the Eighth Amendment

The Eighth Amendment of the US Constitution forbids "cruel and unusual punishments". The death penalty, also known as capital punishment, is not inherently cruel and unusual and does not violate the Eighth Amendment when the jury decides that aggravating and mitigating factors carry equal weight. However, the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out.

In Furman v. Georgia (1972), the Supreme Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society. The Furman decision set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution". The Court approved new death penalty statutes in Florida, Georgia, and Texas, which were designed to address the issues of arbitrariness and discrimination. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

In subsequent years, the Supreme Court has handed down many decisions that define when and how the death penalty can be used. For example, in Kennedy v. Louisiana (2008), the Court held that the death penalty was disproportionate in a case involving the rape of a child. In Baze v. Rees (2008), the Court held that lethal injection does not constitute cruel and unusual punishment. In Ring v. Arizona (2002), the Court held that it is unconstitutional for a sentencing judge, without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty.

Despite these rulings, the death penalty remains controversial, with critics arguing that it is applied in arbitrary and discriminatory ways. Studies have found evidence of racial discrimination in capital cases, with black offenders who kill white victims more likely to receive the death penalty. The American Bar Association and the International Commission of Jurists have called for a moratorium on all executions due to unfair practices and constitutional errors.

Furman v. Georgia

The case of Furman v. Georgia (1972) was a landmark criminal case in US history. In this case, the US Supreme Court decided that the arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, constituting cruel and unusual punishment.

The case involved Furman, an armed burglar who tripped while fleeing a crime scene, accidentally discharging his gun and killing someone. Furman challenged the constitutionality of the death penalty, arguing that its arbitrary application—often left to the complete discretion of jurors—was a form of cruel and unusual punishment. The Supreme Court agreed in a 5-4 ruling, with each of the nine Justices writing separate opinions. The Court's decision invalidated the death sentences of nearly 700 people and mandated a degree of consistency in the application of the death penalty.

The Furman decision did not rule that the death penalty was wholly unconstitutional. However, it did place a moratorium on all executions until further guidance could be provided. This led to a de facto moratorium on capital punishment across the US, with dozens of states rewriting their death penalty laws to comply with the Court's ruling. The decision also influenced the exclusion of certain classes of people, such as juveniles and the mentally handicapped, from capital punishment.

The impact of Furman v. Georgia on the death penalty in the US was significant but short-lived. In 1976, the Supreme Court confirmed in Gregg v. Georgia that capital punishment was legal under limited circumstances. While Furman had made it more expensive and less attractive for local prosecutors to pursue the death penalty, the current Supreme Court has signalled a greater willingness to affirm capital sentences. Despite this, a categorical abolition of the death penalty across the nation is unlikely without another landmark case like Furman v. Georgia.

The death penalty's discriminatory application

The death penalty has been a contentious issue in the United States, with debates surrounding its constitutionality and ethical implications. While the Eighth Amendment of the Constitution forbids cruel and unusual punishment, it does not categorically prohibit the death penalty. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, the application of the death penalty has been a subject of controversy, particularly regarding its discriminatory nature.

In Furman v. Georgia (1972), the Court invalidated existing death penalty laws due to their discriminatory application, specifically against minority and impoverished communities. The Court held that the laws resulted in arbitrary and capricious sentencing, with juries having complete discretion in imposing the death penalty. This decision set a standard that a punishment would be considered cruel and unusual if it was too severe for the crime, arbitrary, offensive to society's sense of justice, or less effective than a less severe penalty.

Following Furman, 34 states rewrote their death penalty statutes to address the issues of arbitrariness and discrimination. In Gregg v. Georgia (1976), the Court upheld the revised sentencing procedures, finding that they did not violate the Eighth Amendment as they reduced the problem of arbitrary application. The Court also emphasized the role of capital punishment in deterring crime and providing retribution. However, critics argue that the death penalty continues to be applied in a discriminatory manner, particularly against minority defendants, the poor, and the politically unpopular.

The Supreme Court has acknowledged the importance of procedural safeguards to prevent discriminatory application, as seen in McGautha v. California. The Court upheld the constitutionality of jury discretion in death penalty cases but emphasized the need for guidelines to prevent arbitrariness. Despite these efforts, studies have found evidence of racial discrimination in capital cases, indicating that minority defendants, especially Black offenders, are more likely to receive the death penalty, particularly when the victim is white.

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The role of jurors in capital cases

Once a jury is selected, they are given instructions at various points in the case. Death penalty trials consist of two phases: the guilt phase and the sentencing phase. Jurors are instructed not to decide on sentencing until after finding the defendant guilty and hearing all the evidence in the sentencing phase. However, research by the Capital Jury Project found that approximately 50% of jurors decided on the penalty before the sentencing phase, indicating a lack of understanding of their instructions. The project also revealed that many jurors did not fully comprehend the legal distinctions between mitigating and aggravating factors, which are crucial in determining sentencing.

In death penalty cases, jurors must find at least one aggravating factor proven beyond a reasonable doubt to find the defendant eligible for the death penalty. Mitigating factors do not need to be proven beyond a reasonable doubt, and jurors need not agree on their existence or weight. However, the understanding and interpretation of these factors by jurors are essential in ensuring a fair trial. The Supreme Court has addressed the issue of arbitrariness in capital sentencing, setting a standard that punishment must not be "cruel and unusual" and must not offend society's sense of justice.

The death penalty in state legislatures

The death penalty, also known as capital punishment, is a highly contested issue in the United States, with state legislatures and the Supreme Court often at odds over its constitutionality. While the Eighth Amendment of the Constitution forbids "cruel and unusual punishment", it does not categorically prohibit the death penalty. The Supreme Court has ruled that the death penalty does not violate this amendment, but it has also handed down decisions that define when and how it can be used.

In the 1960s, the Supreme Court began scrutinising the application of the death penalty, particularly in relation to the discretion given to prosecutors and juries in capital cases. This period saw the Court hear cases such as U.S. v. Jackson (1968), where it was decided that it was unconstitutional for the death penalty to be imposed only upon the recommendation of a jury, as this encouraged defendants to waive their right to a jury trial. The Court also addressed the problems associated with jurors' unrestricted discretion in deciding whether defendants should live or die, as seen in Crampton v. Ohio and McGautha v. California (1971).

The landmark case of Furman v. Georgia (1972) further challenged the constitutionality of the death penalty. The Court invalidated existing death penalty laws, finding that they resulted in arbitrary and discriminatory sentencing, particularly against minority and impoverished communities. This decision set a standard that punishment would be considered cruel and unusual if it was too severe for the crime, arbitrary, offensive to society's sense of justice, or less effective than a less severe penalty. Despite this, the Court did not rule that the death penalty was per se unconstitutional, and in Gregg v. Georgia (1976), it upheld Georgia's new capital sentencing procedures, which reduced the problem of arbitrary application.

Subsequent cases have continued to refine the application of the death penalty. In Kansas v. Marsh (2006), the Court clarified that states could impose the death penalty when aggravating and mitigating factors were equally weighted, without violating the principle of individualised sentencing. The method of execution, however, must not inflict unnecessary or wanton pain upon the criminal, and lethal injection has been upheld as a constitutional method. In Kennedy v. Louisiana (2008), the Court held that the death penalty was disproportionate in cases involving the rape of a child, as only six states permitted this penalty for such crimes.

While the Supreme Court has provided guidance on the constitutional boundaries of the death penalty, its use remains a contentious issue. Some states have abolished capital punishment, while others have enacted new death penalty statutes that attempt to address concerns raised by the Court. The role of progressive prosecutors and state legislative activity also shape the landscape of capital punishment in the United States.

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