Evolution of the Death Penalty in Supreme Court Jurisprudence
Capital punishment has been in existence for centuries. As early back as the Eighteenth Century B.C., the use of the death penalty was found in the Code of King Hammurabi (Death Penalty Information Center [DPIC], 2010). The utilization of the death penalty for designated crimes continued through the years and became incorporated in Britain's penal system (DPIC, 2010). Britain's use of capital punishment carried over into colonial America (DPIC, 2010). Since that time, the death penalty has been a part of the American criminal justice system. However, its use has not been without strong opposition. This paper explores the Supreme Court cases exploring this controversial topic and discusses the evolution of jurisprudence on the subject matter.
Much of the legal support or opposition for the use of the death penalty has been at the state level. Where the death penalty has been abolished, it has been by states. Beginning in the Nineteenth Century, some states began outlawing capital punishment (DPIC, 2010). However, this was not a permanent change as the national security concerns in the early Twentieth Century led to a reinstatement of the death penalty in some states and the 1930's had the highest number of executions (DPIC, 2010). By the 1950's, there was a drastic reduction in the execution rate (DPIC, 2010). The international community and, in particular, many allied nations limited or abolished the death penalty (DPIC, 2010). While the United States did not follow suit, there were fewer executions from this point forward.
Supreme Court capital punishment cases began in the late 1960's. The first cases dealt more with issues of administration of the death penalty, rather than the legality of its usage. For example, the first capital punishment case, U.S. v. Jackson (1968) dealt with the imposition of the death penalty in kidnapping cases only upon the recommendation of a jury. There, the Supreme Court found that rule unconstitutional because it incentivized defendants foregoing their right to jury trial to avoid a potential capital sentence (U.S. v. Jackson, 1968). After that, Witherspoon v. Illinois (1968) addressed jury selection in capital cases and McGautha v. California (1971) rejected concerns that juries were not given standards for imposing the death penalty.
Furman v. Georgia (1972) first addressed the legality of the death penalty as a whole. The case consolidated three separate capital cases, two of which were for rape and one of which was for murder (Furman v. Georgia, 1972). The Supreme Court considered the argument that the death penalty was cruel and unusual and, therefore, was unconstitutional under the Eighth Amendment (Furman v. Georgia, 1972). The concern of the Furman v. Georgia (1972) Court was that, with unfettered jury discretion in imposing the death penalty, there was arbitrariness in its usage. By the reasoning of the Supreme Court, 40 state death penalty statutes were now void (DPIC, 2010), creating a moratorium on capital punishment.
States attempted to overcome the obstacles created by Furman v. Georgia by reworking their capital statutes. However, finding a constitutional means of imposing the death penalty was not an easy task for the states. Some states went for the opposite end of unfettered discretion by mandating the death penalty for designated crimes. For example, in Woodson v. North Carolina (1976), the Supreme Court heard a challenge to North Carolina's mandatory capital punishment statute for murder in the first degree. The court ruled that this type of penal law was unconstitutional because it did not provide the "respect for human dignity underlying the Eighth Amendment" (Woodson v. North Carolina, 1976, p. 281). In order to provide a minimum level of respect for human dignity, Woodson v. North Carolina (1976) held that the death penalty cannot be mandated and the individual circumstances of a crime have to be considered before imposing a punishment.
Georgia (1976). There, it was explicitly stated that the death penalty "for the crime of murder does not, under all circumstances violate the Eighth and Fourteenth Amendments" (Gregg v. Georgia, 1976, p. 154). The decision in Gregg v. Georgia (1976) marked the next phase in the Supreme Court's death penalty jurisprudence by again affirming its constitutionality.
The difference between the death penalty statutes in this case and the ones addressed in Furman v. Georgia (1972) and Woodson v. North Carolina (1976) is that the imposition of the death penalty was now guided discretion. Rather than giving the jury unlimited discretion in sentencing an execution or, at the other end of the spectrum, mandating capital punishment without any regard for individual circumstances, the death penalty was an available sentence, with guidance for its imposition (Gregg v. Georgia, 1976). The new statutes required the jury to make findings about the circumstances of the crime or the defendant's character before sentencing an offender to death (Gregg v. Georgia, 1976, p. 155). As an added level of protection, the state reviews death penalty cases and compares them with similar prior cases to review consistency (Gregg v. Georgia, 1976, p. 155).
After Gregg v. Georgia (1976), the constitutionality of the death penalty has generally been upheld and, as a whole, execution as a means of punishment has not been abolished in general. However, it has been questioned in specific scenarios. In McCleskey v. Kemp (1987), the Supreme Court heard the case of a man that had been sentenced to death in Georgia. The man alleged that the death penalty was unequally applied based on race and, therefore, was a violation of the Equal Protection Clause of the Constitution (McCleskey v. Kemp, 1987). The Supreme Court in McCleskey v. Kemp (1987) found this argument erroneous because it used a study of a generalized trend that black defendants found guilty of killing white victims were more likely to get the death penalty, but did not provide evidence of unconstitutional discrimination in the specific case. While the appeal was unsuccessful for the offender in McCleskey v. Kemp (1987), where an individual could produce the evidence of specific discrimination that was missing in the McCleskey v. Klemp argument, the Supreme Court may be willing to overturn a death sentence for constitutional violations.
Other Supreme Court cases addressing capital punishment have outlawed the death penalty with respect to specific parties. The execution of mentally retarded defendants was abolished by the Supreme Court in Atkins v. Virginia (2002). However, prior to the decision in Atkins v. Virginia, the Supreme Court had upheld the use of the death penalty for mentally retarded individuals. In Penry v. Lynaugh (1989) and the subsequent retrial and death sentence of defendant Penry in the case of Penry v. Johnson (2001), the Supreme Court did not find capital punishment for the mentally retarded to be unconstitutional.
In the Penry v. Lynaugh (1989) case, Penry had been sentenced to death for murder despite having the mental age of seven. The jury was not instructed during sentencing that mental retardation can be considered a mitigating factor for the purposes of imposing a sentence (Penry v. Lynaugh, 1989). While the Supreme Court was unwilling to accept the argument that capital punishment for the mentally retarded was wholly unconstitutional as a cruel and unusual punishment, the Supreme Court did require instructions to the jury that notify jurors that mental handicaps can be considered in sentencing (Penry v. Lynaugh, 1989).
After the Supreme Court noted in Penry v. Lynaugh (1989) that the jury needed instructions allowing them to consider mental retardation, the Supreme Court remanded Penry's case for retrial. That trial and Penry v. Johnson (2001) resulted, where the Supreme Court again found insufficient the jury instructions regarding mitigating evidence of mental retardation in sentencing an offender. The case was again remanded without the Supreme Court finding execution for the mentally retarded generally unconstitutional (Penry v. Johnson, 2001). However, the issue of a death sentence became moot with the Supreme Court's ruling in Atkins v. Virginia (2002).
The Supreme Court's ruling in Atkins v. Virginia (2002) marked a new milestone in the Supreme Court opinions on capital punishment. The Supreme Court, in an opinion authored by Justice Stevens, explains that while mental impairments may not preclude competence for the purpose of being able to stand trial and be held criminally responsible, mental retardation "can jeopardize the reliability and fairness of capital proceedings" (Atkins v. Virginia, 2002, p. 306-307). The Supreme Court (Atkins v. Virginia, 2002) reasoned that there had been an evolution in public sentiment since Penry v. Lynaugh (1989) had been heard. This acknowledgement of the changes in general opinion led the Supreme Court to now hold that the execution of mentally retarded offenders is cruel and unusual punishment and, therefore, is a violation of the Eighth Amendment (Atkins v. Virginia, 2002).
After the decision in Atkins v. Virginia (2002), the Supreme Court made a similar ruling with respect to juveniles. In Roper v. Simmons (2005), the Supreme Court…
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