Isabella Carter
The death penalty, also known as capital punishment, is a legal penalty in 27 states in the United States, as well as in American Samoa and in some military contexts. The Eighth Amendment of the US Constitution does not prohibit the death penalty, and the Supreme Court has ruled that it does not violate the ban on cruel and unusual punishment. However, the Court has also ruled that the death penalty is unconstitutional when applied to non-homicidal crimes, and that it must be proportionate to the crime. The issue of arbitrariness in the application of the death penalty has been a key point of contention, with Furman v. Georgia (1972) finding that the death penalty was unconstitutional due to a lack of explicit guidelines for juries, and subsequent cases refining sentencing procedures to address these concerns.
| Characteristics | Values |
|---|---|
| Supreme Court rulings | Furman v. Georgia (1972), Woodson v. North Carolina (1976), Gregg v. Georgia (1976), Atkins v. Virginia (2002), Kansas v. Marsh (2006), Kennedy v. Louisiana (2008), Ring v. Arizona (2002), Brown v. (unknown), U.S. v. Jackson (1968), Witherspoon v. Illinois (1968), Crampton v. Ohio (1971), McGautha v. California (1971) |
| Constitutional Amendments | Fifth, Eighth, and Fourteenth Amendments |
| Number of states with the death penalty | 27 |
| Number of states with the death penalty and authority to execute | 21 |
| Number of states with moratoriums on the death penalty | 6 |
| Number of states that have abolished the death penalty | 23, plus the District of Columbia and Puerto Rico |
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What You'll Learn
The Eighth Amendment and cruel and unusual punishment
The Eighth Amendment of the US Constitution, adopted in 1791, forbids "cruel and unusual punishment". However, it does not categorically prohibit the death penalty. The federal government can still impose capital punishment, and some states have retained these laws despite a growing trend towards abolition.
The Eighth Amendment states:
> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The phrase "cruel and unusual punishments" was inspired by the case of Titus Oates in England, who, after the accession of King James II in 1685, was tried for multiple acts of perjury that led to the executions of those he had falsely accused. The punishment of Oates involved ordinary penalties collectively imposed in a barbaric, excessive, and bizarre manner. The prohibition against cruel and unusual punishments has led courts to hold that the Constitution totally prohibits certain kinds of punishment, such as drawing and quartering.
The Eighth Amendment does not prohibit the death penalty per se, but it must be proportionate to the crime, and sentencing procedures must be individualized. When reviewing an Eighth Amendment challenge, a court must decide whether a punishment is cruel or unusual according to evolving standards of decency in the community. For example, in Atkins v. Virginia (2002), the death penalty was deemed cruel and unusual punishment incompatible with the Eighth Amendment in the case of mental retardation.
The Supreme Court has given different answers to the issue of the constitutionality of the death penalty. In Furman v. Georgia (1972), the Court decided by a 5-4 majority that the death penalty was unconstitutional because it was administered in an arbitrary and capricious manner due to the lack of explicit guidelines for juries. However, in Gregg v. Georgia, the Court reversed course, determining that the revised sentencing procedures in capital cases did not violate the Eighth Amendment as they addressed the issue of discrimination.
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Furman v. Georgia (1972)
At the time of the case, there was growing public opposition to the death penalty, which led the Legal Defense Fund of the NAACP to challenge the constitutionality of death sentences. The Court issued a per curiam opinion, with five justices endorsing a short opinion overturning the death penalty statute of Georgia. Notably, there was no majority opinion, as all nine justices wrote separate opinions, totalling 243 pages. Justices Brennan and Marshall held that capital punishment was inherently unconstitutional, arguing that it was degrading to human dignity and ineffective as a crime deterrent. On the other hand, three other justices refused to rule on the legality of capital punishment itself but agreed that the absence of clear standards for juries and judges resulted in the arbitrary application of the death penalty.
The Furman decision invalidated the death sentences of nearly 700 people and mandated a degree of consistency in the application of the death penalties. It ushered in an era of heightened regulation, prompting many states to revise their death penalty statutes to address the Court's concerns. This decision effectively nullified all existing death sentences and halted executions for a four-year period. In response, 35 states and the federal government enacted new death penalty statutes to overcome the Court's concerns about arbitrariness.
The case of Furman v. Georgia significantly impacted the legal landscape surrounding capital punishment in the United States. While it did not directly rule that the death penalty was unconstitutional, it led many states to abolish capital punishment altogether. The use of the death penalty was put on hold until the 1976 case of Gregg v. Georgia, where the Court decided that the death penalty was constitutional if juries were provided with standards to guide sentencing deliberations.
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Supreme Court rulings
The Supreme Court has played a significant role in shaping the application of the death penalty in the United States. While the death penalty was initially deemed unconstitutional in the 1970s, the Court reinstated it as constitutional in 1976 through rulings such as Gregg v. Georgia. Since then, the Court has regularly considered multiple capital cases each term, addressing specific aspects of the death penalty's constitutionality.
In the late 1960s, the Supreme Court began "fine-tuning" the administration of the death penalty, hearing cases such as U.S. v. Jackson (1968) and Witherspoon v. Illinois (1968), which dealt with the discretion given to prosecutors and juries in capital cases. In the former, the Court ruled that requiring the death penalty upon a jury's recommendation was unconstitutional as it encouraged defendants to waive their right to a jury trial. In the latter, the Court held that a potential juror's reservations about the death penalty were insufficient grounds to prevent them from serving on a jury in a death penalty case.
The early 1970s saw the Supreme Court address issues related to juror discretion in capital cases, as evident in Crampton v. Ohio and McGautha v. California (1971). The defendants argued that unrestricted juror discretion violated their Fourteenth Amendment right to due process, resulting in arbitrary sentencing. However, the Court rejected these claims, upholding unfettered jury discretion.
In Furman v. Georgia (1972), the Supreme Court set a significant standard for determining "cruel and unusual" punishment, stating that it would include punishment that was too severe for the crime, arbitrary, offensive to society's sense of justice, or less effective than a less severe penalty. This case, along with Jackson v. Georgia and Branch v. Texas, collectively known as Furman, challenged the arbitrariness of the death penalty.
The Supreme Court has also ruled on specific aspects of the death penalty, such as the methods of execution. In Baze v. Rees (2008), the Court held that lethal injection did not constitute cruel and unusual punishment. Additionally, in Roper v. Simmons (2005), the Court banned the death penalty for juvenile offenders, citing teenagers' lack of maturity and vulnerability to negative influences.
The Court has also addressed the competency of defendants facing execution, as in the case of Scott Panetti, which set a precedent for determining when defendants are competent to face execution. Furthermore, the Court has considered racial discrimination challenges, as in McCleskey v. Kemp (1987), where the Court rejected the claim despite acknowledging the validity of the study documenting racial disparities.
While the Supreme Court has upheld the constitutionality of the death penalty, individual justices have expressed varying opinions. Justices Marshall and Brennan, for example, dissented from every death sentence and execution from 1976 until their retirement, maintaining that the death penalty violated the Eighth and Fourteenth Amendments. More recently, the departure of Justices Anthony Kennedy and Ruth Bader Ginsburg has shifted the Court's composition, potentially influencing future rulings on capital punishment and protections for prisoners.
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Capital punishment in individual states
Capital punishment, or the death penalty, is a highly contested issue in the United States. The US Constitution does not require the use of capital punishment, but it does allow it. The Eighth Amendment forbids cruel and unusual punishment, but this does not prohibit the death penalty outright. The Fourteenth Amendment also incorporates the Eighth Amendment ban on cruel and unusual punishment, and this applies to individual states.
The US Supreme Court has a history of giving conflicting answers on the constitutionality of the death penalty. In Furman v. Georgia (1972), the Court decided that the death penalty was unconstitutional due to its arbitrary application and lack of guidelines for juries. However, in Gregg v. Georgia (1976), the Court reversed its position, stating that the revised sentencing procedures addressed discrimination concerns and did not violate the Eighth Amendment. The Court has also ruled that mandatory death sentences are unconstitutional, as they fail to consider special circumstances.
At the state level, there are varying approaches to capital punishment. Some states have abolished it, while others have kept these laws, with the methods of execution differing across states. For example, in 2021-22, South Carolina faced a shortage of drugs used for lethal injections, leading inmates to choose between the electric chair and firing squad. Executions in Utah have also included firing squads. The application of the death penalty has been influenced by racial bias, with a disproportionate impact on minority populations and individuals from impoverished backgrounds. This has been acknowledged by the Supreme Court, but it has not been deemed sufficient to overturn specific death penalty verdicts.
The cost of executing individuals is another factor in the debate. Opponents argue that it is much more expensive than life imprisonment, and there is also the risk of executing innocent people. Since 1973, over 100 death row inmates have been exonerated. Capital punishment is a complex issue, and while some argue that it serves as a deterrent and provides retribution, others highlight the racial discrimination and ethical concerns surrounding its application.
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The cost of executing people
The Eighth Amendment of the US Constitution forbids "cruel and unusual" punishment, but this has not been interpreted as a prohibition of the death penalty. However, the high costs associated with executing people have been a significant point of contention.
Executing people is expensive, with costs varying from $2.16 million to many millions per execution. These costs are incurred through the need for a second trial, extra security, and other factors. In California, the current system costs $137 million per year, while a system without the death penalty would cost $11.5 million. A 2003 legislative audit in Kansas found that the cost of a death penalty case was 70% more than a comparable non-death penalty case, with a median cost of $1.26 million compared to $740,000 for life imprisonment. These higher costs are attributed to additional investigative expenses, special motions, and extra time for jury selection in capital cases.
The financial burden of the death penalty extends beyond the initial trial and execution. When death penalty trials do not result in a death sentence or are reversed, taxpayers bear the costs of capital pretrial and trial proceedings, as well as the subsequent incarceration or retrial expenses. These additional costs reduce resources available for crime prevention, mental health treatment, education, and other vital services.
The high cost of executing people has led to debates about the efficiency and morality of capital punishment. Opponents argue that the death penalty is not only expensive but also irreversible in the face of potential innocence. Since 1973, more than 100 death row inmates have been exonerated, highlighting the fallibility of the justice system. Additionally, the impact of class and racial disparities in death sentencing further complicates the discussion, with defendants from minority or impoverished backgrounds facing a disproportionately higher likelihood of receiving capital punishment.
While the death penalty has been deemed constitutional, the financial implications of executing people are significant. The high costs associated with capital punishment, coupled with concerns about fairness and accuracy, have fueled ongoing debates and a growing trend toward abolition at the state level.
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Frequently asked questions
No, the death penalty is not unconstitutional per se, but it must be proportionate to the crime. The Eighth Amendment forbids cruel and unusual punishment, but this does not prohibit the death penalty. The Fourteenth Amendment's Due Process Clause incorporates the Eighth Amendment ban on cruel and unusual punishment and applies it to the states.
Furman v. Georgia (1972) is a landmark case in which the Supreme Court decided that the death penalty was unconstitutional because it was administered in an arbitrary and capricious manner. However, in Gregg v. Georgia (1976), the Court reversed its decision, holding that the death penalty was not per se unconstitutional and could serve the social purposes of retribution and deterrence. Another important case is Kennedy v. Louisiana (2008), where the Supreme Court held that the death penalty is unconstitutional for non-homicidal crimes, including child rape.
Public opinion has played a significant role in the debate. In the 1960s, it was suggested that the death penalty constituted "cruel and unusual" punishment and was therefore unconstitutional under the Eighth Amendment. The Supreme Court, in Trop v. Dulles (1958), acknowledged an "evolving standard of decency" in interpreting the Eighth Amendment. Abolitionists used this logic to argue that the US had progressed to a point where the death penalty should no longer be tolerated. Since then, a growing trend toward abolition at the state level has led to 23 states and the District of Columbia abolishing the death penalty for all crimes.
