Capital Punishment: Advocates' Deadly Combination of Inadequacy and Misconduct

By Bush, Anthony Brian | Jones Law Review, Spring 2008 | Go to article overview

Capital Punishment: Advocates' Deadly Combination of Inadequacy and Misconduct


Bush, Anthony Brian, Jones Law Review


"I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." (1)

I. INTRODUCTION

The nexus between the Eighth Amendment's ban on governmental imposition of "cruel and unusual punishments" (2) and the death penalty continues to be a controversial topic among judges, scholars, students, and others who have given it a moment's reflection. In an attempt to reconcile this relationship, the Supreme Court held that imposition of the death penalty must be analyzed under "evolving standards of decency that mark the progress of a maturing society." (3) Recently, the Court's application of this standard resulted in the categorical exclusion of two classes of defendants from death penalty eligibility. (4) The first exclusion came in 2002 when the Court ruled that executing those who are mentally "retarded" is a "purposeless and needless imposition of pain and suffering." (5) Three years later, the Court held that executing defendants who were juveniles at the time they committed the crime is unconstitutional. (6) Notwithstanding the indecency of executing the innocent, the lack of recognition for such incidents continues to inhibit the maturation of our society.

This essay argues that the current administration of the death penalty is a violation of the Constitution's prohibition of "cruel and unusual punishments." Section II briefly summarizes the history of the death penalty in this country, beginning with its temporary moratorium and concluding with the resultant legislative refinement. Sections HI and IV analyze the problems of ineffective assistance of counsel, prosecutorial misconduct, and the significance of each in the realm of capital punishment. In addition, the latter two sections illustrate the standards for evaluating each advocate's conduct and suggest some remedial measures for alleviating these administrative shortcomings.

II. POST-FURMAN HISTORY OF THE DEATH PENALTY

In 1972, for the first time in our history, the Supreme Court in Furman v. Georgia (7) held that the states' method for administering the death penalty was cruel and unusual punishment in violation of the Eighth Amendment. (8) The majority opinion, delivered by Justice Potter Stewart, acknowledged that the arbitrary and capricious manner in which the states implemented the death penalty was unconstitutional. (9) Justices Brennan and Marshall, concurring with the result but not the reasoning, concluded that the death penalty, in and of itself, was "per se" unconstitutional. (10)

The Furman Court based its holding on the administration of capital punishment in two southern states: Georgia and Texas. The Georgia statute provided that punishment for a convicted murderer was death, however, under two exceptions the punishment could be life in prison: if the conviction was based exclusively on circumstantial testimony or the jury returned a recommendation of mercy. (11) The Texas statute gave the jury the discretion to sentence the convicted murderer to either death or a prison sentence greater than two years. (12) Due to a lack of standards to limit sentencing discretion, the administration of such death penalty statutes was unconstitutional. (13)

Subsequently, Congress and nearly thirty-five states (14) rewrote their death penalty statutes to comply with the majority's dictates in Furman by either establishing procedural safeguards or crime-specific mandatory sentencing. (15) Four years later, the Court revisited and upheld the constitutionality of the death penalty in Gregg v. Georgia, (16) Proffitt v. Florida, (17) and Jurek v. Texas. (18) These revised statutes mandated that a state could impose the death penalty only after meeting two criteria; a jury must find aggravating factors at a sentencing hearing following a determination of guilt and the jury's decision must be subject to meaningful appellate review. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

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.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Capital Punishment: Advocates' Deadly Combination of Inadequacy and Misconduct
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.