Tinkering around the Edges: The Supreme Court's Death Penalty Jurisprudence

By Bessler, John D. | American Criminal Law Review, Fall 2012 | Go to article overview

Tinkering around the Edges: The Supreme Court's Death Penalty Jurisprudence


Bessler, John D., American Criminal Law Review


INTRODUCTION

The U.S. Supreme Court has not squarely confronted the death penalty's constitutionality since the 1970s. In that decade, the Court actually ruled both ways on the issue. In McGautha v. California, (1) the Court first held in 1971 that a jury's imposition of the death penalty without governing standards did not violate the Fourteenth Amendment's Due Process Clause. (2) But then in 1972, in the landmark case of Furman v. Georgia, (3) the Court interpreted the Cruel and Unusual Punishments Clause to hold that death sentences--as then applied--were unconstitutional. (4) In that five-to-four decision, delivered in a per curiam opinion with all nine Justices issuing separate opinions, (5) U.S. death penalty laws were struck down as violations of the Eighth and Fourteenth Amendments. (6) The sentences of the "capriciously selected random handful" of those sentenced to die, one of the Justices wrote, are "cruel and unusual in the same way being struck by lightning is cruel and unusual." (7) Other Justices also emphasized the arbitrariness of death sentences, (8) with some focusing on the inequality and racial prejudice associated with them. (9)

Four years later, the Supreme Court reversed course yet again, approving once more the use of executions. (10) After thirty-five states reenacted death penalty laws

in the wake of Furman, (11) the Supreme Court upheld the constitutionality of death penalty statutes in Gregg v. Georgia (12) and two companion cases. (13) The Court ruled that laws purporting to guide unbridled juror discretion--and requiring capital jurors to make special findings (14) or to weigh "aggravating" versus "mitigating" circumstances (15)--withstood constitutional scrutiny. (16) The Court in Gregg emphasized that the Model Penal Code itself set standards for juries to use in death penalty cases. (17) Only mandatory death sentences, the Court ruled that year, were too severe and thus unconstitutional. (18) In its decision in Woodson v. North Carolina, (19) the Court explicitly ruled mandatory death sentences, the norm in the Framers' era, (20) were no longer permissible and had been "rejected" by American society "as unduly harsh and unworkably rigid." (21)

This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia--one of the Court's most vocal proponents of "originalism"--has conceded that corporal punishments such as handbranding and public flogging (22) are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. (23) The American Bar Association ("ABA") has yet to fully weigh in against the death penalty, though it has taken notice of the bevy of problems associated with it. (24) The ABA's two death penalty-related projects, (25) as well as the justice system's considerable experience with capital cases, plainly show that the reality of the death penalty's administration differs substantially from consideration of capital punishment in the abstract. (26)

Modern American society is very different from American life in the eighteenth century, yet executions, though increasingly rare, remain. This is so even though other harsh bodily punishments once used and tolerated in the penal system--among them, ear cropping and the pillory--have not been used for many decades. (27) Part III highlights the rarity of American executions in the 21st century along with the public's heightened unease with them, while Part IV summarizes the Framers' similar unease towards death sentences. Although corporal and capital punishments were meted out in eighteenth-century America, many Framers, history reveals, were fascinated by the potential of penitentiaries and the viability of alternatives to capital punishment. …

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