The Debate Begins Anew, 1977-1989
The post-Furman resumption of executions in 1977 marked the beginning of a new era of debate over capital punishment. In the midst of mounting public support for the death penalty, the Supreme Court was inundated with habeas challenges to the new capital laws. These challenges led to a series of decisions that refined legal issues such as what kinds of offenders could be eligible for death sentences and for execution, what types of crimes could be punishable by death, and what kinds of evidence properly could be presented during the penalty phase of trials. As we discuss later, the interminable delays in carrying out capital sentences associated with these challenges also were important.
Some of the cases were "categorical" challenges of the use of the death penalty for crimes such as rape (see Document 64) or against juveniles (Document 86) or for people who were insane or retarded (Documents 76, 88) or were accomplices to felony murder whose roles had been relatively minor (Documents 66, 69). Other appeals attempted to broaden the range of mitigating factors that could -- and should -- be considered by juries and judges in the sentencing portion of capital trials (Document 70). In deciding in favor of considering more mitigating factors, the Supreme Court increased the possibility for more fully informed sentencing decisions, but it also increased the likelihood of arbitrary death sentences (Paternoster 1991:76-77; Schwed 1983: 164). Substantially less than one out of ten people sentenced to death row were eventually executed, and many abolitionists argued that the difference between them and people who were not killed by the state