MUCH OF THE constitutional debate surrounding the death penalty concerns its compatibility with the Eighth Amendment's prohibition against the imposition of cruel and unusual punishment. Justice William Brennan, Jr., argued eloquently that the sentence of death offends both the dignity of the prisoner and the evolving standards of decency which reflect the advance of a maturing society. That position has not prevailed and, given the present composition of the Supreme Court, it is unlikely that it will in the foreseeable future.
Newer members, such as Justice Antonin Scalia, have a more restricted view of the Court's role in our society and fiercely resist any steps that would make the justices "philosopher-kings," rather than "judges of the law." The debate over whether the death penalty is inherently unjust, or offends civilized standards, undoubtedly will continue. Nevertheless, concentration upon the morality of capital punishment, however important in itself, can detract attention from less divisive issues of constitutional importance.
The justices of the Supreme Court are not Platonic guardians, but they all must recognize they have a responsibility to assure that no condemned prisoner be deprived of his life without due process of law. The distinction is important because it will be concerns over the administration of justice, rather than ideal standards, which eventually may lead the Court to decide that the death penalty is forbidden by the Constitution. To understand why this is so requires a brief historical review.
In Furman v. Georgia (1972), the Supreme Court held that capital punishment was being imposed "freakishly" and invalidated all state death penalty statutes then in force. In Gregg v. Georgia (1976), it held that the death penalty was not unconstitutional in all circumstances. The judgment of the Court and the opinion of Justice Potter Stewart acknowledged that the death penalty can serve the social purposes of deterrence and retribution. The judgment also affirmed the Court's belief that sentencing discretion adequately could be guided to avoid the dangers of arbitrary and capricious actions, which had led to the Furman decision.
In the years immediately following Gregg, the Court strongly asserted its authority as the nation's unique institution ultimately responsible for the fair administration of capital justice. Between 1976 and 1982, it decided 15 capital cases on the merits. In all but one, it reversed, and vacated, the death sentence as imposed. Its decisions included a holding that punishment of death was a disproportionate penalty for rape (Coker v. Georgia), mandatory death sentences for murder were unconstitutional (Woodson v. North Carolina), and there must be a meaningful opportunity for the sentencing authority to consider mitigating factors relative either to the crime or the character of the individual offender (Lockett v. Ohio). In this same period, the Court also decided that vague instructions to a jury were constitutionally intolerable since they did not provide sufficient assurance that a death sentence would not be imposed wantonly Codfrey v. Georgia) and invalidated restrictions on the defendant's access to information made available to the sentencing power (Gardner v. Florida).
In May, 1979, the Supreme Court rejected a stay of execution application of John Spenkelink. Some commentators insist that, from that point on, the Court has been turning away from the task of carefully reviewing the imposition of the death penalty. In 1983, this concern was expressed by Justice Thurgood Marshall. Writing in dissent in Zant v. Stephens, he not only reiterated his traditional position that the death penalty is unconstitutional in all circumstances, he also chided the Court for not consistently applying its earlier post-Gregg decisions.
While there is reason to believe the Court has lessened the rigors of its supervision over the imposition of the death penalty, it is difficult to determine exactly why this has happened. …