Constitutionality of the Death Penalty

¶ … Constitutionality of the Death Penalty

The history of the administration of the death penalty in the United States is fraught with racism and only in rare instances has anyone other than a poor person been executed (Geraghty 2003). The United States is the only Western country that continues to execute, and until recently still executed juveniles and the mentally ill. There is no evidence that the death penalty deters crime, and many countries have either eliminated the death penalty or carry it out as punishment for only the most egregious of crimes (Geraghty 2003). Yet, support for the death penalty in the United States remains strong and seems unlikely to wane in the near future. Furthermore, no political candidate could win an election if he or she opposed the death penalty, since it is regarded by even the most progressive politicians as a veritable kiss of political death to do so (Geraghty 2003). Nevertheless, over the last few decades, Supreme Court rulings have consistently demonstrated a slow move toward abolition of the death penalty, thus it is likely that eventually the United States will abandon the use of capital punishment.

Ironically, at the beginning of the nineteenth century, the new states that made up the American Republic were among the first jurisdictions in the world to limit the use of the death penalty and to substitute imprisonment for execution (Cottrol 2004). James Madison disapproved of the death penalty, and Thomas Jefferson and Benjamin Franklin favored limiting the death penalty to murder and treason, while the Quakers, who were very influential in the Middle Atlantic states, had a reticence concerning the death penalty (Cottrol 2004). In fact, after the Revolution, the Quakers were instrumental in strictly limiting the number of crimes punishable by death in Pennsylvania, thus only murder and treason survived as capital crimes (Cottrol 2004). The main exceptions were the slave states that kept a longer list of capital crimes for slaves and free Negroes, thereby demonstrating the lasting link between social inequality and the use of the death penalty (Cottrol 2004).

Robert J. Cottrol notes in the May 2004 issue of the Stanford Law Review that the debate over the wisdom and justice of capital punishment can be traced back to before the Jacksonian era, and "the now familiar arguments over deterrence, retribution, the morality or immorality of revenge, and the possibility of executing the innocent became new parts of the public discourse on capital punishment" (Cottrol 2004). Christian communities of colonial America regarded man as sinful, and thus the most sinful had to be executed as an object lesson to others and to uphold the moral order, however by the beginning of the nineteenth century, new sciences began to emerge concerning the understanding of human behavior, and these new forces caused many to view prisons as a way to reform behavior and explain criminal actions (Cottrol 2004).

Although the use of the death penalty began to decline during the early nineteenth century, this was true only for the white population (Cottrol 2004). While the Revolution brought an end of slavery in the North, more than ninety percent of the black population lived in the South, where slavery continued to grow in importance, and where slaves continued to be viewed as deviant outsiders with harsher criminal codes applied to them than for whites (Cottrol 2204). The new Federal Constitution and the constitutions of the new states had provisions limiting the infliction of unduly cruel punishments however slaves in Southern states were often, as a matter of law and practice, beyond the protection of such measures (Cottrol 2004).

The nineteenth century ushered in a new era, a new way of thinking regarding capital punishment, and by the end of the century, Americans were seeking ways to combine the new scientific advances with the search for more humane methods of execution (Cottrol 2004). The immediate result was the development of the electric chair, in which electrocutions had to be carried out by professionals who were familiar with electricity, and which contributed to removing executions from the public square to inside the confined rooms of prisons (Cottrol 2004). The electric chair's chief rival in the twentieth century was the gas chamber, which was adopted in the 1920's, and was regarded as a more humane execution in which the victim enjoyed a "quiet, peaceful death" by simply breathing in the poison gas (Cottrol 2204).

Today, the majority of executions are carried out by lethal injections, which requires people with medical or paramedical training, although professional associations representing doctors and nurses have taken stands against members using their professional skills in the role of executioners (Cottrol 2004). Yet, determining the proper dosage of lethal ingredients requires considerable pharmacological and medical knowledge even if the actual lethal injection could be administered by an individual without medical training (Cottrol 2004).

Following World War II, the frequency with which executions were performed declined significantly. The year 1938 marks the peak year for executions in the twentieth century, in which 190 executions were performed (Cottrol 2004). By 1946, the number had declined to 131; in 1951, there were 105 executions, and in 1958 and 1959, there were 49 executions (Cottrol 2004). During the 1960's, there was a steady decline, from 47 executions in 1962 to only 2 in 1967. This decline was partly the result of the federal courts' increased scrutiny to death penalty appeals that were often tied to well-founded suspicions concerning racial discrimination and the application of the death penalty (Cottrol 2004). In 1967, the Supreme Court put a moratorium on the death penalty while it decided the issue of capital punishment's constitutionality, which resulted in the Court's decision in Furman v. Georgia declaring the death penalty as then practiced unconstitutional (Cottrol 2004). During the 1980's and 1990's, there was an increase in the number of executions, reaching a height of 98 in 1999, and the number of prisoners on death rows in the United States also increased from 423 in 1977 to 3601 in the year 2000 (Cottrol 2004). According to Robert J. Cottrol in the May 2004 issue of the Stanford Law Review, the 'tough on crime' posture was embraced by liberal and conservative politicians during the 1980's and 1990's, and by the 1990's had "gained such popularity that the death house door became a virtual campaign theater prop for many politicians" (Cottrol 2004).

Cottrol notes that the movement to eliminate capital punishment fell victim to its inability to persuade the public on two important points. First, opponents of capital punishment accepted conventional ideas concerning the personal responsibility of criminal offenders, and the need to emphasize that psychological and sociological explanations for criminal behavior were explanations and not excuses; and second, that opposition to the death penalty did not mean opposition to strict punishment and protection of society from the worst offenders (Cottrol 2004). The conservative counterattack in criminal justice during the 1970's and 1980's succeeded because it coincided with a broader public mood that viewed criminals as responsible for their crimes and the fact that they wanted protection from violent offenders (Cottrol 2004).

While the Supreme Court has held that under the Constitution, the United States Government is afforded broad discretion in enforcing the nation's criminal laws, it has also noted that the death penalty is unique due to its severe and final nature, therefore, although the Court has not significantly limited prosecutors' discretion in deciding against whom they will seek the death penalty, it has imposed restraints upon the ability to impose the death penalty (Larson 2003). The Court has held that the discretion of sentencers must be "limited so as to minimize the risk of wholly arbitrary and capricious action" (Larson 2003).

In Furman v. Georgia, the defendants, convicted of rape and murder, challenged the validity of the Georgia death penalty statute, claiming it constituted "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments (Larson 2003). Although the Court ruled in favor of the defendants and vacated their death sentences, it declined to hold that the death penalty is a per se violation of the Constitution, and instead held that a state's death penalty statue is unconstitutional if the sentencer is allotted too much discretion in deciding whether to impose capital punishment, thereby creating a great risk that the death penalty would be imposed arbitrarily (Larson 2003).

In Gregg v. Georgia, the petitioner contended that the amended Georgia capital punishment statute did not effectively eliminate the dangers of arbitrariness in capital sentencing procedures, as Furman mandated, and alleged that the statute violated the Constitution because, among other things, one of the aggravating circumstances was too broad to limit discretion (Larson 2003). The Court found that the Georgia statue did not allow for the arbitrary imposition of the death penalty, and although the Court acknowledged that the statute may have allowed the sentencer too much discretion, the Court held that the state court could limit that discretion by interpreting the statute narrowly (Larson 2003). Therefore, under Gregg, even if a state capital sentencing statute allows for too much discretion on its face, the stature may still be constitutional if that discretion is appropriately limited by the state court's interpretation of the stature (Larson 2003).

In Woodson v. North Carolina, the Court held that an offense may not carry a mandatory capital punishment sentence, concluding that it violated both the Eighth and Fourteenth Amendments because it precluded consideration of factors such as the defendant's character and life experiences in coming to a punishment decision (Larson 2003). This decision was affirmed in Roberts v. Louisiana when the Court held that even where a state narrowly defines an offense for which capital punishment be given, a mandatory imposition of the death penalty is unconstitutional (Larson 2003).

In Zant v. Stephens, a petitioner again alleged that an aggravating circumstance listed in the Georgia capital sentencing statue was invalid, and although the Court rejected the claim, it addressed the constitutionality of aggravating circumstances (Larson 2003). The Court held that an aggravating circumstance must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder" (Larson 2003).

In McClensky v. Kemp, the Court again considered the constitutionality of Georgia's capital sentencing system, due to a study submitted by the petitioner indicating that the death penalty was imposed in a racially discriminatory manner (Larson 2003). The Court found that the fact that similar defendants did not receive the death penalty did not constitute a violation of the Constitution since there is no prohibition against leniency in a particular case, thus because the petitioner was sentenced to death in accordance with the Georgia stature, requiring procedures to screen out arbitrary selection, petitioner's sentence was constitutional (Larson 2003).

In Walton v. Arizona, petitioners challenged the constitutionality of the Arizona capital sentencing stature, claiming that an aggravating circumstance listed therein was unconstitutionally vague (Larson 2003). The Court held that although the stature was impermissibly vague on its face, the Arizona court had sufficiently narrowed the statue, thus bringing it within constitutional limits (Larson 2003). The Court established the test that federal courts must undergo in order to determine the constitutionality of a state's capital sentencing stature. First, courts must determine whether the statute is sufficiently narrow so as to provide true guidance to sentencers, and if the statute is too vague, federal courts must determine whether state courts have sufficiently narrowed the terms in the statue so that the statue provides "some guidance to the sentencer" (Larson 2003). In Arave v. Creech, the Walton holding was reaffirmed, when the Court held that an aggravating circumstance is not unconstitutionally vague if a state's capital sentencing scheme limits sentencres' discretion so that their decision is not completely arbitrary, and if the aggravating circumstance truly narrows the class eligible for the death penalty (Larson 2003).

Over the past century, the United States Supreme Court has revised the death penalty doctrine, demonstrating concern with when and to whom it is applied and with how it is carried out (Patterson 2006). Krista L. Patterson notes in the April 2006 issue of the Duke Law Journal that while it is not surprising that this doctrine has evolved over time, considering that it is founded on a flexible standard found in the Eighth Amendment to the Constitution, it is surprising that the Supreme Court's death penalty jurisprudence has demonstrated an overall trend restricting the power of the state in favor of the human rights of accused individuals (Patterson 2006). Furthermore, the death penalty doctrine in the United States has almost uniformly followed in the footsteps of death penalty developments in other Western developed democracies (Patterson 2006).