Constitutionality of the
Death Penalty in America
The 1960s brought challenges to
the fundamental legality of the death penalty. Before then, the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution
were interpreted as permitting the death penalty. However, in the early
1960s, it was suggested that the death penalty was a "cruel and
unusual" punishment and therefore unconstitutional under the Eighth
Amendment. In 1958, the Supreme Court decided in Trop v. Dulles (356 U.S. 86) that
the interpretation of the Eighth Amendment contained an "evolving
standard of decency that marked the progress of a maturing society."
Although Trop was not a death penalty case, abolitionists applied the
Court's logic to executions and maintained that the United States had,
in fact, progressed to a point that its "standard of decency" should no
longer tolerate the death penalty. (Bohm, 1999)
In the late 1960s, the Supreme
Court began "fine tuning" the way the death penalty was administered.
To this effect, the Court heard two cases in 1968 dealing with the
discretion given to the prosecutor and the jury in capital cases. The
first case was U.S. v. Jackson
(390 U.S. 570), where the Supreme Court heard arguments regarding a
provision of the federal kidnapping statute requiring that the death
penalty be imposed only upon recommendation of a jury. The Court held
that this practice was unconstitutional because it encouraged
defendants to waive their right to a jury trial to ensure they would
not receive a death sentence.
The other 1968 case was Witherspoon v. Illinois (391 U.S.
510). The Supreme Court held that a potential juror's mere reservations
about the death penalty were insufficient grounds to prevent that
person from serving on the jury in a death penalty case. Jurors could
be disqualified only if prosecutors could show that the juror's
attitude toward capital punishment would prevent him or her from making
an impartial decision about punishment.
Suspending the Death Penalty
The issue of the arbitrariness of the
death penalty was brought before the Supreme Court in 1972 in Furman v. Georgia (408 U.S. 238). Furman, bringing an Eighth
Amendment challenge, argued that capital cases resulted in arbitrary
and capricious sentencing.
In 9 separate opinions, and by a
vote of 5 to 4, the Court held that Georgia's death penalty statute,
which gave the jury complete sentencing discretion without any guidance
as to how to exercise that discretion, could result in arbitrary
sentencing. The Court held that the scheme of punishment under the
statute was therefore "cruel and unusual" and violated the Eighth
Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided
40 death penalty statutes, thereby commuting the sentences of 629 death
row inmates around the country and suspending the death penalty because
existing statutes were no longer valid.
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