The Courts, the Constitution, and Capital Punishment

By Hugo Adam Bedau | Go to book overview

Introduction

Just ten years ago, the noted criminologist, Thorsten Sellin, published his selection of essays, Capital Punishment, and the revised edition of my book, The Death Penalty in America, appeared. Together these two volumes made generally available a harvest of research, evidence, and argument on the death penalty controversy that served as the baseline for future investigations. In the same year, the President's Commission on Law Enforcement and the Administration of Justice completed its work and published its report. The Commission all but ignored capital punishment as an acceptable and effective weapon against crimes of violence. At a press conference, also in 1967, Attorney General Ramsey Clark expressed opposition by the Department of Justice to the death penalty. This brought to public notice a sentiment in favor of abolition that had been gaining momentum in the Department for several years. Concurrently, the NAACP Legal Defense and Educational Fund (LDF) and the American Civil Liberties Union (ACLU) were bringing state and federal death sentences under attack on constitutional grounds, an unprecedented challenge to capital punishment. Executions were in decline: one in 1966, two in 1967-and then 1968 became the first year in our history in which none occurred anywhere in the nation.

We can see now that the mid- 1960s was a decisive period in which a new strategy was developed to attack the death penalty and new hope awakened among its opponents. During the 1950s, the abolitionist effort had two main goals: lobbying in the legislatures for repeal of capital statutes, and desperate maneuvers to obtain commutation of death sentences. Efforts of both sorts failed more often than they succeeded. After the mid-1960s, such challenges took distinctly second place to the work of lawyers who were pressing federal constitutional objections against the death penalty in appellate courts. The highwater mark of this phase was 29 June 1972, the day the Supreme Court announced its decision in Furman v. Georgia. In its ruling in Furman, the Court in effect abolished the death penalty throughout the nation on the ground that, as then administered, it was "cruel and unusual punishment," prohibited by the Eighth Amendment and therefore unconstitutional.

Now, more than four years later, it is clear that this phase of the struggle to abolish the death penalty has come to an end. The first blow was the Supreme Court's decision on 2 July 1976, upholding the constitutionality of the death penalty in Gregg v. Georgia. A decade of effort to persuade the federal courts to repeal the death penalty, though not an outright failure--no litigation campaign that permanently narrowed the scope of capital statutes and nullified hundreds of death sentences can be counted as a failure--had not been crowned with success. As this is being written, the authorities in one state after another are moving toward setting execution dates for many of the hundreds of persons currently under death sentence. The second blow came on 17 January 1977, as

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