The Courts, the Constitution, and Capital Punishment

By Hugo Adam Bedau | Go to book overview
Save to active project

Are Mandatory Capital Statutes Unconstitutional?

On 21 April during the final week of oral argument in the 1975 term, the United States Supreme Court for the first time in three years listened to oral argument on capital punishment. In 1973, Jesse T. Fowler had been convicted of first degree murder and sentenced to death, as required by the mandatory death penalty law then in effect in North Carolina. At issue in the case was not only Fowler's fate and that of fifty other persons under death sentence in North Carolina, but a larger national question. Would the Supreme Court, after an interval of three years, undertake to expand further its controversial ruling against the death penalty in Furman v. Georgia? Or, instead, would the Court yield to other pressures and begin to narrow and whittle it away?

In June 1972 the Court ruled in Furman that "the imposition and carrying out of the death penalty . . . constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." The Court's reasoning was based on the "freakish" and "selective," "capriciously random" fashion with which the death penalty was actually imposed. The Court did not, however, summarily rule unconstitutional all possible death penalty provisions. It confined itself exclusively to the laws and procedures for inflicting capital punishment where the courts had "unfettered discretion" to bring in a sentence of death or of life. Chief Justice Warren E. Burger noted in his dissent that "if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made." The Fowler case presents the Court with one of the two major forms of capital punishment left untouched by the Furman ruling: statutes that make "mandatory" the imposition of the death penalty once an accused has been convicted of a "capital" crime, such as first degree murder.

In the three years since Furman, several developments have taken place that are likely to affect the decision of the Supreme Court in the Fowler case.

Even though executions have occurred since Furman, thirty-one states have enacted new death penalty legislation, in which capital punishment has been authorized either as the "mandatory" penalty for certain crimes, or as a penalty that the jury may impose under "guided discretion" from statutory standards that attempt to define which "capital crimes" truly deserve death and which deserve imprisonment. 1

Over two hundred persons are now under sentence of death in twenty states. Their race and sex breakdown reveals that more than half are black ( Jesse Fowler among them), and all but two are men. 2 These characteristics, so typical


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
The Courts, the Constitution, and Capital Punishment


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 172

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?