The Fragile Consensus:
Public Opinion and Death Penalty Policy
The "cruel and unusual punishment" clause of the Constitution, in the
opinion of the learned commentators, may be therefore progressive,
and is not fastened to the obsolete, but may acquire meaning as
public opinion becomes enlightened by a humane justice.
—Weems v. United States (1910)
I have found that "the American people" earnestly desire their
system of punishments to make sense in order that it can be a
morally justifiable system.
—Justice Thurgood Marshall (1972)
This chapter focuses on the nature of public opinion about capital punishment and its role in the administration of the death penalty in the United States. As I noted in the last two chapters, economic and political forces have helped to shape the media's depictions of crime and punishment. In addition to the real dangers posed by the threat of violent crime, citizens' deepest fears about victimization are intensified by repeated exposure to sensationalized television images and story lines that demonize the perpetrators of crime. Along with the often narrow, one-sided news coverage that surrounds individual capital cases, these factors help to increase the perceived need for harsh punishments like the death penalty. This chapter examines some of the apparent attitudinal consequences of those threats, images, story lines, and news coverage and the ways that they have helped to shape and maintain public support for capital punishment.
Throughout the history of capital punishment, public opinion has played a significant role in its administration. The death penalty has been the unique focus of public debate in the United States, and American courts and legal decision makers have taken stock of the attitudes of citizens concerning this topic with an attentiveness reserved for no other legal sanction. In part, this is because of the intense feelings that have been generated on both sides of the issue. As Justice Brennan observed in Furman, ""f"rom the beginning of our Nation, the punishment of death has stirred acute public controversy. … The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death."1