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Warren E. Burger
Capital Punishment
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John Marshall
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The U.S. Supreme Court
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Justice Thurgood Marshall (Collection of the Supreme Court of the United States)

U.S. Supreme Court
Capital Punishment

Description: The killing of a convict by the state for purposes of punishment or to reduce future crime.

Significance
The death penalty, although infrequently applied, has symbolic importance and has sharply polarized public opinion. The Supreme Court entered this fray only briefly, first to restrict executions, then to permit capital punishment, increasingly free of federal court supervision.

During the colonial period and the founding of the United States, the execution of convicts was not only routine but also a public spectacle. The hangman's noose, a humane alternative to beheading, was employed with a liberality that would disturb modern sensibility. In eighteenth century England, for example, it is estimated that approximately 240 crimes were punishable by death, with the sentence commonly carried out in the town squares. In contrast to millennia of practice, the nineteenth and twentieth centuries have seen a gradual civilization of punishment. Incarceration replaced execution for most crimes. Hangings were removed from public view and placed instead behind prison walls. The abolition of physical torture as a legitimate part of punishment followed, eventually culminating in efforts to also circumscribe the infliction of psychological pain. Thus, the noose was replaced by electrocution, followed by the gas chamber, and more recently by lethal injection, all in a search of a humane method of depriving the convict of life, as the ultimate punishment. In the eyes of many ethicists, legal scholars, and moral leaders, the fulfillment of this historical trend would be the abolition of capital punishment altogether. In the United States, one of the last democratic nations retaining the death penalty, this debate has often acquired a constitutional dimension.

The Death Penalty and the Constitution
It is clear from the text of the Constitution that the Framers envisioned executions as a part of their legal regime. The Fifth Amendment provides that "no person shall be held to answer for a capital or otherwise infamous crime" absent an indictment by a grand jury. It further provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb" nor be "deprived of life, liberty, or property without due process of law." The Fourteenth Amendment, adopted after the Civil War, similarly commands that no state shall deny any person "life, liberty, or property, without due process of law." Proponents of a contractual constitution, interpreted according to the historical intent of its Framers, are on apparently solid ground when they contend that the Constitution, in principle, sanctions capital punishment.

Opponents of the death penalty point to the same pair of due process clauses, promises of legal fairness, to condemn the application of the death penalty as arbitrary, capricious, even, in the words of Justice Potter Stewart, "freakishly imposed." They also point to the Fourteenth Amendment's requirement that states accord all persons the "equal protection of the laws" and raise questions concerning possible racial bias in the meting out of death sentences. Finally, and most tellingly, the Eighth Amendment's proscription of "cruel and unusual punishments" might provide a flat ban on capital punishment. The latter seems to have been adopted to end corporal punishments or the infliction of torture. However, in Weems v. United States (1910), the Supreme Court held that a constitutional principle "to be vital must be capable of wider application than the mischief which gave it birth." Abolitionists contend that these clauses create evolutionary constitutional rules, progressively driven by contemporary moral theory, that now proscribe the death penalty, regardless of accepted practice at the time of their adoption.

Judicial appeals to contemporary morality are always risky, especially regarding an emotionally contentious subject such as capital punishment. However, it is difficult to reconcile the death penalty, as practiced in the United States, with any of the common theoretical justifications for punishment. The death penalty is obviously not intended to accomplish the rehabilitation of the offender. There is little evidence in support of any general deterrence produced by the death penalty beyond that already achieved by incarceration and considerable evidence against the claim. Incapacitation of dangerous or repeat offenders can also be accomplished by means short of execution. Retribution, the theory that crime is a moral offense that must be redressed by the infliction of proportional pain to expiate the original offense, might justify capital punishment for heinous crimes, especially first-degree murder. The biblical injunction of "an eye for an eye and a tooth for a tooth" is a concise summary of retributive punishment. The problem is that retribution, if consistently followed, is a nondiscretionary punishment—a sentence proportional to the crime must be carried out, with no room for mercy or selection. Proponents of capital punishment who appeal to retribution would have to countenance the execution of all defendants convicted of crimes for which capital punishment is authorized. The result would be a rate of executions unprecedented in U.S. history. Public opinion overwhelmingly supports capital punishment. However, polls and jury behavior also show that Americans want the death sentence to be employed sparingly.

The modern Court's initial foray into death penalty law was not encouraging to abolitionists. In Louisiana ex rel. Francis v. Resweber (1947), the Court rejected the contention that a second attempt at executing a prisoner, the electric chair having malfunctioned the first time, was either double jeopardy or cruel and unusual punishment. Despite the Court's permissive attitude, the number of executions in the United States was already in decline. National statistics on executions date only from 1930, with 1935 the largest single year, with 199 executions. By the 1960's this number had declined to a trickle. Since the early 1980's, however, the number of annual executions in the United States has again been rising, especially in southern states. Sixty-eight executions were carried out in 1998.

The Death Penalty Moratorium
Encouraged by the Court's activism in civil rights and defendants' rights cases, death penalty opponents in the 1960's began a campaign to enlist the Court in the cause of abolition. The Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People, later joined by the American Civil Liberties Union, orchestrated a threefold attack on capital punishment. First, the routine exclusion of "scrupled" jurors, those opposed to the death penalty on principle, was said to result in nonrepresentative juries skewed toward conviction and execution. Second, the determination of guilt and passing of sentence in a single trial procedure put defendants in an untenable position of having to offer evidence in mitigation of a crime they also contended they did not commit. Finally, the nearly complete discretion accorded juries in deciding when to impose death (the only sentencing question juries are called on to decide) resulted in an unpredictable, arbitrary, and discriminatory application of the death penalty.

In Witherspoon v. Illinois (1968), the Court banned the blanket exclusion of all scrupled jurors merely by virtue of their voicing objections to capital punishment. The state could still exclude those who would automatically or invariably vote against a death sentence, but not those expressing only "general objections" to capital punishment. The practical result of Witherspoon was to require commutation or resentencing of nearly all death sentences for prisoners then on death row. Until further litigation sorted out all potential Witherspoon claims, a de facto moratorium on capital punishment had been achieved. From 1967 until 1977, no executions were carried out in the United States.

Further LDF challenges to capital punishment were in the works. In Furman v. Georgia (1972), a fragmented Court adopted the third LDF critique of the death penalty as then practiced in all the states authorizing capital punishment, that unguided jury discretion produced arbitrary results. Only Justices William J. Brennan, Jr., and Thurgood Marshall held capital punishment to be cruel and unusual punishment per se in contravention of the Eighth Amendment. Dissenters William H. Rehnquist, Warren E. Burger, Lewis F. Powell, Jr., and Harry A. Blackmun found no constitutional prohibition to unbridled jury discretion to mete out death and would have deferred on the issue to state legislative politics (although the latter eloquently expressed personal misgivings concerning capital punishment). This left Justices William O. Douglas, Potter Stewart, and Byron R. White to cast limited but decisive votes against Georgia's capital punishment statute. Douglas expressed concerns that the death penalty was applied disproportionately to poor and socially disadvantaged defendants, in effect reading into the Eighth Amendment an equality requirement. Stewart held that the rare imposition of death made capital punishment cruel and unusual in the minority of cases in which it was imposed. White agreed, arguing that its infrequency deprived the death penalty of any deterrent effect or ability to meet the test of retribution. For the first time, the Court had struck down a death sentence as cruel and unusual punishment. However, the long-term impact of Furman depended on the continued support of either Justice White or Justice Stewart, both centrists whose opposition to capital punishment seemed weak.

Public reception of Furman was immediate and hostile. Within a few years, thirty-five states had reenacted death penalty statutes purporting to meet the Court's objections. Three possibilities seemed available in the wake of Furman. States could enact mandatory death penalty statutes, imposing death in all cases where the death penalty was available, without discretion. This seemed to meet the objections of the Douglas, Stewart, and White bloc but would also have resulted in a large number of executions. A second option was to forgo death as a punishment altogether, but this seemed politically unlikely given the climate of public opinion. The third option was to enact guided discretion statutes, supplying juries with a host of aggravating and mitigating circumstances that would be considered in a separate sentencing phase of the trial, following a previous determination of guilt. This procedure met the LDF's second challenge to capital punishment, that the combined procedures for determining guilt and sentence imposed untenable choices on the defense. It also seemed to meet the issue of jury discretion head on, with neither the unpopular abolition of capital punishment nor the volume of executions that might follow adoption of mandatory capital punishment laws.

These laws came under the Court's scrutiny in Gregg v. Georgia (1976). Actually a compendium of five cases testing mandatory death penalty statutes in North Carolina and Louisiana and guided discretion statutes in Georgia, Texas, and Florida, Gregg also resulted in a badly fragmented Court. Justices Brennan and Marshall continued their per se opposition to the death penalty. Chief Justice Burger, along with Rehnquist, Blackmun, and White, voted to uphold all five death penalty regimes. As with Furman, the Court's decision rested on the centrists, now Justices Stewart, Powell, and John Paul Stevens. They approved of Georgia's death penalty regime, requiring a bifurcated procedure that separated the determination of guilt from the passing of sentence. In addition, before death could be imposed, a jury had to find beyond a reasonable doubt that at least one of ten aggravating circumstances had been met. Mitigating circumstances were also to be considered, and all death sentences were subject to mandatory appeal. Thus, a death penalty regime based on guided jury discretion now passed constitutional muster. The decision for a companion case, Woodson v. North Carolina (1976), specifically banned mandatory death sentences.

It is not at all clear that the death penalty regime approved in Gregg is able to meet the objections of jury discretion and arbitrary application of capital punishment that underlie Furman. Although subsequent litigation struck down jury guidelines that were deemed too vague, juries were still called on to consider unique circumstances pertaining to each case. Further inconsistency was introduced into the application of the death penalty through such practices as prosecutorial charging discretion, plea bargaining, and executive clemency. It thus appeared that Gregg marked a changed political sentiment on the part of the Court, perhaps even, as a practical matter, overruling Furman. With the decision in Gregg, the Court signaled a green light to executions. The death penalty moratorium came to an end in January of 1977, when the state of Utah executed Gary Gilmore by firing squad.

Race and the Death Penalty
The interest of the LDF in capital punishment should have surprised no one. It was long known that the death penalty was applied most frequently to society's outcast groups, especially the poor and members of minority groups. Over half of the convicts executed for all capital crimes between 1930 and 1995 were African Americans, far exceeding their proportion of the nation's population. Even more striking, of the 450 executions for rape between 1930 and 1965, more than 90 percent involved African American convicts. Criminologist Marvin Wolfgang, in a 1966 study, found that of 119 convicted rapists executed in twelve southern states between 1945 and 1965, 110 were black. The question remained as to whether these discrepancies could be explained by nonracial factors, such as a propensity to commit more heinous crimes.

A research team lead by David Baldus studied more than 2,400 criminal homicide cases in Georgia, from 1973 to 1980, tried under the death penalty regime approved in Gregg. Taking account of more than 230 separate characteristics of each case, they employed sophisticated statistical analysis to weigh the effect of each in producing death sentences. Their results found that, when adjusted for legitimate nonracial factors, the race of the defendant did not result in a strikingly disproportionate application of the death penalty. However, a strong correlation was uncovered between the race of the victim and the passing of a capital sentence.

In raw numbers, white or black killers of white victims were eleven times more likely to receive the death penalty than were killers of African American victims. Even when nonracial variables were factored in, killers of black victims were executed 4.3 times as often as were killers of whites. The discrepancy was inexplicable, except by the inference that race prejudice continued to affect the death penalty regime, even after Gregg. In fact, the race of the victim proved to be a stronger predictor of a capital sentence than such factors as the defendant's prior history of violence, that the victim was a police officer, or that the killing occurred during an armed robbery. The supposition drawn from these results was that prosecutors, when faced with the killer of an African American victim, were less likely to seek the death penalty or more likely to accept a plea bargain eliminating death. Alternatively, juries, even guided statutorily by nonracial aggravating and mitigating circumstances, were less likely to impose death for the killing of a black victim, perhaps valuing the life of a black person less highly than that of a white victim.

These data formed the basis for the LDF's next challenge to capital punishment, in McCleskey v. Kemp (1987), as violating both the Eighth Amendment and the equal protection clause of the Fourteenth Amendment. Such a disparate racial impact would seem to call into question the effectiveness of Gregg in eliminating the arbitrary or discriminatory factors in applying the death penalty that had informed Furman. However, writing for the Court, Justice Powell held that to make an equal protection claim, McCleskey had to demonstrate that either the Georgia legislature or the jury in his particular case was motivated by racial animus or a discriminatory purpose. The social background data revealed in the Baldus study were insufficient to make even a prima facie case that McCleskey had personally suffered from racial discrimination and, in any event, were more appropriately considered in a legislative forum. Similarly the discrepancy revealed in the Baldus study was insufficient to demonstrate a violation of the Eighth Amendment because it did not offend society's evolving standards of decency. Justices Brennan, Marshall, Stevens, and Blackmun dissented.

In Furman and Gregg, the Court had sought to remove arbitrary and capricious factors, presumably including racial prejudice, from the application of the death penalty in the United States. However, with McCleskey, the Court appeared to be turning its back on that promise by foreclosing the last avenue for arguing for the per se unconstitutionality of capital punishment. It did find in the Eighth Amendment limits to the kinds of crimes that could be deemed capital offenses. In Coker v. Georgia (1977), the Court found a capital sentence disproportionate to the crime of rape and therefore barred by the Eighth Amendment. Similarly, Enmund v. Florida (1982) barred the death penalty for a felony murder in which the defendant did not commit, nor intend or contemplate, the killing. However, this ruling was modified in Tison v. Arizona (1987) to permit sentencing to death of a codefendant in a felony murder in which there was major participation in the felony combined with reckless indifference to human life. These rulings indicate that the Court views the Eighth Amendment as imposing substantive limits on the death penalty, at least concerning the issue of proportionality.

At the end of the twentieth century, thirty-eight states authorized the death penalty for first-degree murder. The federal government also authorized death for certain homicides, as well as for espionage, treason, or running a large-scale drug enterprise, but has not carried out a single capital sentence since 1963. As of April, 1999, 3,565 prisoners were on death row in the United States, while only 580 prisoners had been executed since 1977. Death row inmates are overwhelmingly poor and uneducated and disproportionately African American and southern. Many have suffered from inadequate assistance of counsel at trial. The most significant innovation by the Court in recent years has been the increasing of restrictions on the availability of federal habeas corpus review of state death penalty convictions and sentences. The apparent goal of the Court is to permit the states to apply post-Gregg death penalty law, largely absent federal judicial supervision.

John C. Hughes

Further Reading
Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.

Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1998.

Constanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin's Press, 1997.

Foley, Michael A. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. New York: Praeger, 2003.

Haines, Herbert H. Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994. New York: Oxford University Press, 1999.

Hanks, Gardner C. Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment. Scottsdale, Pa.: Herald Press, 1977.

Kronenwetter, Michael. Capital Punishment: A Reference Handbook. 2d ed. Santa Barbara, Calif.: ABC-Clio, 2001

Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. Boston: Butterworth-Heinemann, 1998.

Mello, Michael A. Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison: University of Wisconsin Press, 1997.

Melusky, Joseph A., and Keith A. Pesto. Cruel and Unusual Punishment: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003

Protess, David. A Promise of Justice: The Eighteen-Year Fight to Save Four Innocent Men. New York: Hyperion, 1998.

See Also
Constitutional interpretation; Cruel and unusual punishment; Due process, procedural; Eighth Amendment; Furman v. Georgia; Gregg v. Georgia; Habeas corpus; McCleskey v. Kemp; Payne v. Tennessee; Penry v. Lynaugh; Plea bargaining; Stewart, Potter; Race and discrimination.


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