The Death Penalty's Strange Career

By Banner, Stuart | The Wilson Quarterly, Spring 2002 | Go to article overview

The Death Penalty's Strange Career


Banner, Stuart, The Wilson Quarterly


Last year, 66 convicted murderers were executed in the United States, and several thousand still sit on death row. Yet 30 years ago, with public support for capital punishment seemingly on the wane, the Supreme Court ruled every death penalty statute in the land unconstitutional. Our author details the paradoxical developments of the past three decades.

On June 29, 1972, the U.S. Supreme Court handed down one of the most surprising decisions in its history. By a vote of 5 to 4, it ruled in Furman v. Georgia that every existing death penalty law in the United States was unconstitutional.

The ruling touched off the biggest flurry of capital punishment legislation the nation had ever seen. The day after Furman, legislators in five states declared their intention to introduce bills to resurrect the death penalty. President Richard Nixon asked the Federal Bureau of Investigation to supply him with incidents in which convicted killers had committed a second murder after being released from prison. In California, where the state supreme court had ruled that the state constitution barred capital punishment, support for the death penalty was strong enough to propel the issue to the ballot in November 1972. The voters reinstated the death penalty by a 2 to 1 margin. By 1976, four years after Furman, 35 states and the federal government had enacted new capital punishment statutes.

Public opinion on capital punishment shifted dramatically within months of the U.S. Supreme Court's decision. In March 1972, a few months before Furman, supporters of the death penalty outnumbered opponents just 50 percent to 42 percent, according to a Gallup poll. By November 1972, the margin was 57 percent to 32 percent. An eight-point margin had grown into a 25-point margin in seven months. By 1976 supporters outnumbered opponents 65 percent to 28 percent, the widest gap since the early 1950s. The shift was uniform across all regions of the country. The belief that Americans had repudiated the death penalty--the linchpin of abolitionists' constitutional argument in the Furman case-had been decisively disproven.

Neither the poll results nor the number of states with statutes authorizing capital punishment would change much in the ensuing decades. This suggests that the swing back to the death penalty would have taken place eventually, with or without Furman. In the long history of the death penalty, periods of strong abolitionist sentiment--some states eliminated the death penalty as early as the antebellum period--have always been followed by sharp drops in support for abolition. In the last three decades of the 20th century, growing public demand for law and order meant that an era of restoration was likely anyway.

But if Furman did not influence the direction of change, it almost certainly influenced its speed. Suddenly, capital punishment was a more salient issue than it had been in decades, perhaps ever. People who previously had had little occasion to think about the death penalty now saw it on the front page. Furman, like other landmark Court cases such as Roe v. Wade (1973), had the effect of calling its opponents to action.

The new death penalty statutes were drafted to conform to the opinions of the two justices who had held the balance of power in Furman, Potter Stewart and Byron White. What had troubled them about the death penalty was its randomness. When juries were given complete discretion to choose between life and death, the two justices concluded, the resulting pattern of verdicts had no rhyme or reason. On identical facts, one jury might sentence one defendant to death, while another jury might sentence another defendant to prison.

There were two ways to correct the problem, and some states tried each. One solution was to take discretion away from the jury by returning to the old practice of defining a class of crimes for which the penalty would always be death. …

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