is the death penalty unconstitutional essay

Faculty Scholarship

‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it.

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.”

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.”

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar.

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972.

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll.

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.”

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner.

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker.

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.”

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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Analysis & Opinion

The Eighth Amendment, the Death Penalty, and the Supreme Court

A legal scholar explains the history of the Court’s death sentence jurisprudence and ponders its future.

Carol Steiker

Amendment VI Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The most conservative Supreme Court in a century has not yet fully put its stamp on the death penalty in America or on conditions of confinement within prisons. Nor, for that matter, have the justices delivered a recent ruling on the ways in which local officials control pretrial detention or impose hefty fines and fees on those who get wrapped up in criminal justice systems. The Eighth Amendment, as the newly constituted Roberts Court sees it, has yet to be written even though public debate over capital punishment, solitary confinement, and excessive bail often drive broader conversations about criminal justice in the United States.

Some trends, however, are apparent. The departure of Anthony Kennedy and Ruth Bader Ginsburg took from the Supreme Court two justices who supported key limitations on the death penalty and expanded protections for prisoners under the “cruel and unusual punishment” clause of the Eighth Amendment. They were replaced by two justices, Amy Coney Barrett and Brett Kavanaugh, whose lower-court records suggest broad support for capital punishment and little appetite for expanded Eighth Amendment protections for prisoners.

The question then is not whether the Court will limit capital punishment further but whether the conservative majority will reverse the limitations on the death penalty that Kennedy and Ginsburg helped establish in the past two decades. In 2002, for example , the Supreme Court in Atkins v. Virginia outlawed the execution of intellectually disabled prisoners. Just two years later, the Court in Roper v. Simmons outlawed the execution of people who committed their capital crimes when they were juveniles. Are the precedents from these cases now vulnerable to a Court that has shown a new willingness to overturn established doctrine?

Some of the same questions may also be asked of the future of the Eighth Amendment as it relates to the use of solitary confinement inside prisons. Tens of thousands of men and women (and juveniles) are held daily in isolated detention across the country — complete statistics are impossible because so many corrections departments won’t share complete records — and many of these prisoners have legitimate claims that their treatment fails to meet the “evolving standards of decency.” That’s the proportionality standard the justices have adopted to evaluate claims under the Eighth Amendment.

For answers to some of the questions, I turned to Carol Steiker , a lawyer, author, and Harvard Law School professor who has enjoyed a rare view of the Supreme Court’s recent history with the Eighth Amendment in general and the death penalty in particular. As we discuss below, Steiker clerked decades ago ( as did Justice Elena Kagan ) for Justice Thurgood Marshall shortly before he retired from the court. More recently, Steiker co-authored a well-received book with her brother, Jordan Steiker, about the Supreme Court and capital punishment.

Steiker was asked five years ago, when the acclaimed film, Marshall came out, for some insight into how Justice Marshall approached Eighth Amendment law when capital cases came before the court. She recalled, “The death penalty was a big deal in his chambers. He would tell us stories about early in his career when he represented defendants at trial as well as on appeal in death penalty cases. Mostly they were black men accused of crimes against white victims in the South. And one thing he said often is that he always knew when he had an innocent client because that’s when the jury would sentence him to life imprisonment instead of death. And that really stuck in my head.”

Here’s Steiker with her views of where Eighth Amendment jurisprudence is likely headed under the Roberts’ court. She’s particularly intrigued by a line of reasoning offered recently by Justice Neil Gorsuch that suggests the possibility of a sea change in the way the court views “evolving standards of decency.” The interview was gently edited for length and clarity.

COHEN: Let me start with an abstract question. You clerked decades ago for Justice Thurgood Marshall, the only Supreme Court justice to ever represent a death row prisoner. He was, famously, an opponent of capital punishment after seeing firsthand the racial disparities at the heart of what Justice Harry Blackmun once called the “machinery of death.” What do you think Justice Marshall would say about the state of Eighth Amendment jurisprudence today?

STEIKER: It’s not a hard question because Justice Marshall, along with Justice William Brennan, dissented from every death sentence and execution from 1976 — when the Court reinstated the death penalty as constitutional in Gregg v. Georgia and accompanying cases — to when each of them retired from the Court. And Justice Marshall would, in every dissenting opinion, begin it the same way. And I can remember it because I typed it many times. The dissent would read something like: Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution, I would grant the writ of certiorari and vote to vacate the death sentence in this case.

And then, often, Justice Marshall and/or Justice Brennan would go on to say: Even if I didn’t hold this view, that the death penalty is always unconstitutional, I would grant review or I would rule for the defendant if the cases were actually granted. So we know that Justice Marshall along with Justice Brennan adhered to their views expressed in their dissents in Gregg and their majority opinions in Furman v. Georgia in 1972 that the death penalty was per se a violation of human dignity. That was the way that they saw it.

That said, in the time since Gregg was decided, a number of other justices have actually come over to the Brennan and Marshall camp. The first to do so actually did so after his retirement from the Court. Justice Lewis Powell, who was one of the dissenters in Furman. He did not rule the death penalty unconstitutional initially in that 1972 case. He was one of the four Nixon appointees who took that view. Powell ended up writing the majority opinion for the Court in McCleskey v. Kemp, w hich in 1987 rejected a constitutional challenge to the death penalty on the grounds of racial discrimination, which was well documented.

And the Court said even if that study is valid, which we don’t need to rule on, McCleskey still loses his discrimination claim 5–4. Brennan and Marshall dissented in that case obviously as well. Shortly thereafter Powell retired from the Court and John Jeffries, who later became the dean of the University of Virginia School of Law, wrote an official biography of Justice Powell and interviewed him many times. And in the course of those interviews Justice Powell said that he regretted his vote and opinion in McCleskey and that he had come to the view, a little late, that the death penalty was unconstitutional.

COHEN: My sense is that there was a period about a decade or so ago, when the Court was more evenly split, where there was likely more hope for capital abolitionists or those who want to restrict the instances of capital punishment — we saw it with juvenile offenders, we saw it with intellectual disabilities Do you think Justice Marshall today, in 2021, with a Court that includes Justice Brett Kavanaugh and Justice Amy Coney Barrett and so forth, would think that some of those gains are going to slip away or do you think he would counsel patience and hope that one day there will be a 6–3 split the other way on the Court.

STEIKER: Justice Marshall was a total impact litigation strategist. He was the one who argued Brown v. Board of Education , but that decision did not emerge full-grown from the head of Zeus. He had been litigating civil rights cases for decades so I suspect he would take the long view. He would likely note that several other justices eventually also came around to the Marshall and Brennan view of capital punishment. Justice Harry Blackmun — another of the four Nixon dissenters in Furman — shortly before his retirement in 1994 penned a very passionate denial of cert in Callins v. Collins, where he wrote that he had come to the conclusion that the death penalty is unconstitutional per se.

It was less than a year until Justice Blackmun retired from the Court, but interestingly he started writing dissents in all the remaining death penalty cases, beginning with the phrase Justice Marshall had first used: “Adhering to my view in Callins v. Collins …” He was very self-consciously modeling himself after Marshall and Brennan, neither of whom were still on the Court in 1994. That’s another Furman dissenter and Republican appointee who changed his mind.

Then there was Baze v. Rees in 2008. Justice John Paul Stevens, the Ford appointee who was not on the Court in 1972 for Furman, but who joined the Court shortly before Gregg in 1976. Along with Justice Powell and Justice Potter Stewart, Justice Stevens wrote the controlling plurality opinions in Gregg and the accompanying four cases that basically brought the death penalty back. This was the capital punishment plurality that launched the modern death penalty. But Stevens gets off the boat in 2008 and says: Now I’m convinced that the death penalty is unconstitutional, although unlike Justices Marshall, Brennan and Blackmun before him, Justice Stevens says he’ll continue to uphold the death penalty under Eighth Amendment jurisprudence out of respect for precedent.

And now, most recently, Justice Stephen Breyer wrote that long dissent in Glossip v. Gross , another lethal injection case in 2015, joined by Justice Ruth Bader Ginsburg, saying that the Court should grant a global challenge to consider the constitutionality of the death penalty, not actually saying that they would hold that it is unconstitutional, but offering a lengthy, lengthy opinion about all the problems with America’s death penalty. I think some of the arguments that Justice Breyer made in 2015 are different from the arguments that Brennan and Marshall made in the 1970s, and I think time has shown the power of those arguments.

One was the problem of wrongful convictions. Justice Breyer in Glossip put a lot of weight on evidence that people were sentenced to death for crimes they did not commit. There was less evidence of this back in the 1970s, because we didn’t have DNA testing then, so that’s a powerful new moral and legal argument against capital punishment.

The other problem is the incredible lengthening time on death row, which now averages more than two decades. Justice Breyer has always said that a death sentence is not actually a sentence of execution but rather a sentence of very, very lengthy incarceration, usually decades of solitary confinement, before you are executed, if you ever are. And he’s said that is a very cruel punishment.

COHEN: You could argue also, though you didn’t mention him, that former Justice Anthony Kennedy softened his views on capital punishment. Not to the extent that he was ever a vote for its abolition, but he certainly was a crucial vote for its restriction — twice — and then subsequently defended his view that there must be limitations. Do you see a Republican appointee on the Supreme Court today that you would target as the likely candidate for a similar reversal along the lines of what you have described?

STEIKER: No.

COHEN : I guess the only person one could conceive of having an about-face on the death penalty is Chief Justice John Roberts, but there is no indication that that is in the cards, right? Certainly there’s nothing in his public writing to suggest a change is near.

STEIKER : I think the vetting process for justices has gotten much more political, and so I don’t think we are likely to see the transformations we saw not just with Blackmun and Stevens but with Souter and Kennedy as well. Those were Republican appointees who often were tagged, later in their tenure, as being on the left wing of the Court, and who both penned multiple opinions expressing concerns about the administration of capital punishment.

COHEN: My sense is that when Glossip was decided, six years ago now, there was this optimism among advocates that things were really close to a breakthrough, to more restrictions on the death penalty or even to capital abolition. Here was Breyer, asking for a more complete review, and there seemed to be real momentum toward real change. But we went from a 5–4 majority then with Kennedy as the swing vote to a 6–3 conservative majority, where I guess you would say that the Chief Justice is the most moderate of the six, but clearly no fan of restrictions on capital punishment. Do you get the sense as so many others do that the capital reform window has now closed for a period?

STEIKER: I am on record as saying that. My brother and I wrote a book titled, “Courting Death,” which was published (in a nice little irony) on November 7, 2016, that would be the day before Donald Trump was elected president. We, along with most people we knew, thought that Hillary Clinton had it in the bag and that Merrick Garland would be on the Court. So you’d likely have four plus two possible votes (Garland and Kennedy) to abolish. We predicted rather confidently that the Court would abolish the death penalty under the Eighth Amendment and explained how much of the doctrine to justify doing so was written by Justice Kennedy and could easily bear a reading that abolished capital punishment.

But of course, Merrick Garland never made it to the Supreme Court and Justices Gorsuch, Kavanaugh and Barrett did. I do think that the Court’s Eighth Amendment jurisprudence remains and, contrary to what some other people think, I do not think that this Court will extirpate it, root and branch. If the Eighth Amendment’s jurisprudence remains intact through this conservative era and the practice of capital punishment continues to decline, then at some later point that jurisprudence probably will support a Supreme Court Furman II ruling abolishing capital punishment of the kind we predicted would come sooner rather than later.

COHEN: Let me ask you now about something else you wrote, over a decade ago, about how the development of Eighth Amendment law and advocacy influenced the criminal justice system more broadly, aside from capital punishment. What did you mean back then, what were you seeing that made you write that, and do you think that’s still the case? That the Eighth Amendment is shaping justice and justice reform more broadly?

STEIKER: Oh, for sure. One way in which Eighth Amendment law has affected the non-capital context is the way the Court has used it in the juvenile-life-without-parole context. Those cases are not death penalty cases, and yet the Court has used its powerful Eighth Amendment jurisprudence, first to say that juveniles who don’t kill people cannot get the death penalty. That was Graham v. Florida in 2010. And then to say two years later, in Graham v. Miller, that even juveniles who kill people cannot get mandatory life without parole sentences the way adults can.

But the biggest change has been the development of mitigation evidence. The Court has required individualized sentencing in capital cases, which are not required in non-capital cases. We have all kinds of mandatory sentences in non-capital sentences: three-strikes laws and mandatory minimums and mandatory enhancements, and all that. Only capital defendants have a right to have their life histories presented. But it’s a pretty robust right and consequently capital defense lawyers have really learned how to do that and, as my brother Jordan and I have written about, that has been a big cause of the massive reduction in the use of the death penalty over the last two decades. Lawyers have gotten much better at humanizing their clients and explaining how capital crimes could have happened, and juries are reluctant to impose the death penalty, even in really terrible cases. The power of mitigation in capital cases has inspired many lawyers and public defender offices to investigate and mount mitigation presentations in non-capital cases as well, in an effort to combat some of the overly harsh sentences that drive mass incarceration.

COHEN : So, you are making the point that it’s not just a change in the sensibilities of prosecutors, which we are also seeing in some jurisdictions, but also robust defense work that is causing a decline in capital sentences.

STEIKER: Strong defense work has changed the proclivities of prosecutors. Prosecutors don’t want to lose. A lot of times defense lawyers will bring their mitigation evidence to prosecutors before trial and say: “Hey, look. Look at all this. Our guy will plead to life but you have to give him life.” That’s the way a lot of this happens and a lot of it spills over to non-capital cases. So now a lot of non-capital defense offices now have mitigation teams and mitigation training. Sentencing work has always been the neglected stepchild of defense lawyers, but I think what capital advocacy has shown is how powerful it is and how systemically it can be deployed in the non-capital area.

COHEN : What do you make of the conservative movement for the abolition of the death penalty? Do you think it’s here to stay? Do you think it can survive the broader political cleavage we are seeing? Do you think a Republican president would nominate to the federal bench a lawyer who had argued against capital punishment as applied now in the U.S?

STEIKER: No, I don’t think that’s going to happen. There has always been a solid but small conservative wing of the abolitionist movement, which comes from a few places.

One, religion. The Pope is against the death penalty. People who are Catholic don’t always follow the Pope, but he’s pretty influential. So, people on religious grounds, many of whom are otherwise conservative, oppose the death penalty.

Two, libertarians and anti-big government advocates. À la Grover Norquist, they want to “shrink big government so it is small enough to drown in a bathtub.” The death penalty is the ultimate failed government program: it is hugely expensive and fraught with error. It kind of makes sense that people with either religious or libertarian agendas would oppose the death penalty; George Will has opposed the death penalty for decades.

COHEN : But do you see abolition increasing among conservatives? Are you tracking that? My perception is that the movement is growing in those circles.

STEIKER: I do think that the number of people opposed to the death penalty has grown across the political spectrum. The whole debate has shifted, in terms of what percentage of the population is against capital punishment. This is the first time the Democrats have had an anti-death penalty plank in their national platform and elected a president who came out against the death penalty. But it is not obvious whether the movement away from the death penalty, which is a real thing, is disproportionately being driven by conservatives who have changed their mind or growing support among liberals. I haven’t seen research on that.

COHEN : Now let me ask you about the future. What do you think the arrivals of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the Court mean for the future of Eighth Amendment jurisprudence? Do you agree with the view that the Court’s latest conservative turn dampens any reasonable hope of new restrictions on capital punishment or new Eighth Amendment protections for capital defendants?

STEIKER: This is really interesting. We’ve had a little bit of a hint of where they might be going with this. It comes in the Bucklew case out of Missouri in 2019. Russell Bucklew wasn’t claiming that lethal injection was unconstitutional for everyone. He was saying that he had a medical condition that made it unconstitutional as applied to him; that he would drown in his own blood. He lost. Everyone loses on these lethal injection challenges, it seems.

Now, the Court usually responds to these challenges by saying the same thing: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.” But instead of saying that, which is the way these opinions tend to start, Justice Gorsuch began with the view that the death penalty is not vulnerable to constitutional attack because of originalism. That capital punishment is in the text of the Constitution.

That if you can only be deprived of life, liberty or property without due process of law you can be deprived of life if there is due process of law. That the fact that the Fifth Amendment, the double jeopardy clause, says that you cannot be held twice in jeopardy of life and limb suggests you can be held once in jeopardy of life. And the Grand Jury Clause of the Fifth Amendment says that in capital and otherwise infamous cases you have to have a grand jury indict you. Gorsuch points to the fact that the death penalty is mentioned in the Bill of Rights three times and says “we’re done.” That shows that in 1789 we had the death penalty and we cannot say it is unconstitutional today, because it was not unconstitutional then.

That suggests the possibility that this Court might unwind the whole “evolving standards of decency” doctrine on which the justices have relied for 50 years or more in understanding constitutional limits on the death penalty. That what is cruel and unusual punishment under the Eighth Amendment changes with the “evolving standards of decency that mark the progress of a maturing society,” the famous line from Trop v. Dulles , which held that it was unconstitutional under the Eighth Amendment to strip someone of citizenship for desertion during World War II.

Using the evolving standards of decency doctrine, the Court has built up a whole jurisprudence (this is what I say they can hang a future abolition on), a whole methodology around this, including the cases that say you can’t have the death penalty for offenders with intellectual disability, or for juveniles or for crimes less than homicide, and that you can’t have life without parole sentences for most juvenile offenders. Will the Court uproot those cases, all of them, root and branch? I find that unlikely. I think that’s where you wouldn’t get Roberts; the Chief Justice wouldn’t say you can throw out 50 years of precedent, dozens of cases.

COHEN : But that’s something that is on your radar as a possibility, right? Even if the Chief Justice switches, you still have five conservative justices hostile to death penalty challenges, don’t you?

STEIKER: It’s just a possibility at this point, but an unlikely one.

COHEN: So your sense is that there will be, at best, status quo on the Eighth Amendment’s jurisprudence? That there certainly won’t be an expansion of the limitations on capital punishment with this Court but here isn’t likely to be a reversal of recent precedent.

For example, you don’t anticipate a ruling that says that juvenile offenders can now be executed again, do you?

STEIKER: I don’t expect that ruling at all. I am not saying I think the Court will maintain the status quo without changing anything; I think it is very likely that they will nibble around the edges in lessening restrictions on the death penalty. We saw that with the Court’s shadow docket ruling on the Trump executions. The Court really leaned over backwards in favor of executions, and Justice Sonia Sotomayor wrote an anguished dissent in the last of those cases, the Higgs execution, about how she felt the Court was not respecting its own precedent and not dealing with important Eighth Amendment issues raised in those cases.

I don’t expect maintenance of the status quo, but will the Court completely gut its 50-year precedent about “evolving standards of decency”? No. I don’t think they are going to do that. I don’t think that the Chief Justice is the only conservative on the Court who has some respect for precedent, and honestly, they have other things they want to overrule more.

COHEN: There are always hot spots in Eighth Amendment jurisprudence. Solitary confinement right now is one and if you have any thoughts on that I would love to hear them. But where do you think the action is likely to be in Eighth Amendment law in the next few years? What key issues do you think are likely to make it to and be resolved by the Supreme Court.

STEIKER: I think we are likely to see the same kinds of claims like restrictions on juvenile life without parole. I think most of the Eighth Amendment restrictions that are plausible under current practice for the death penalty have largely made it to the Court.

I think one question is whether people with intellectual disabilities have to show that they were intellectually disabled before the age of 18. The clinical definition of intellectual disability requires proof of onset before the age of 18, but not everyone has or can find an IQ test before the age of 18, even when there is lots of other evidence that they may be intellectually impaired. Then there are people who become brain damaged, and so have the equivalent of intellectual disability, but not as a developmental issue and instead as something that happens in adulthood.

I think that’s an issue that may come up. I think certainly solitary confinement and restrictions on the use of life-without-parole sentences, whether those sentences are ever unconstitutional. I think lawyers will raise these because they have clients who may benefit from them, but as a practical matter this Supreme Court is not really where you want to be with these cases right now. I think they are highly unlikely to win any extensions of Eighth Amendment protections from the Supreme Court, whereas quite a few state courts may make more sense for these cases. Every state has some equivalent of the Eighth Amendment. Sometimes in exactly the same language — “cruel and unusual” punishment. Sometimes “cruel or unusual” punishment. Sometimes in addition to or instead of a requirement of proportional punishment.

Several of these states have interpreted their Eighth Amendment analogues more broadly than the U.S. Supreme Court. Most notably, the Washington Supreme Court declared its own death penalty unconstitutional under its Eighth Amendment equivalent. The Connecticut Supreme Court did the same. The Oregon Supreme Court just applied its state constitution to conclude it would be cruel and unusual to execute those on its death row in light of a recent legislative narrowing of its capital statute. State constitutional litigation is where abolitionist litigators have their best shots at narrowing or abolishing the death penalty right now.

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The Inhumanity of the Death Penalty

In America, the history of the criminal justice system—and of executions—is inseparable from white supremacy.

is the death penalty unconstitutional essay

Fifteen years ago, Clayton Lockett shot Stephanie Neiman twice , then watched as his friends buried her alive. Last week, Lockett was tortured to death by the state of Oklahoma. The torture was not so much the result of intention as neglect. The state knew that its chosen methods—a triple-drug cocktail—could result in a painful death. (An inmate executed earlier this year by the method was heard to say, "I feel my whole body burning.") Oklahoma couldn't care less. It executed Lockett anyway.

Over at Bloomberg View, Ramesh Ponnuru has taken the occasion to pen a column ostensibly arguing against the death penalty. But Ponnuru, evidently embarrassed to find himself in liberal company, spends most of the column dismissing the arguments of soft-headed bedfellows:

On the core issue—yes or no on capital punishment—I'm with the opponents. Better to err on the side of not taking life. The teaching of the Catholic Church, to which I belong, seems right to me: The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them. Our government almost always does. Still, when I hear about an especially gruesome crime, like the one the Oklahoma killer committed, I can't help rooting for the death penalty. And a lot of the arguments its opponents make are unconvincing. Take the claims of racial bias—that we execute black killers, or the killers of white victims, at disproportionate rates. Even if those disputed claims are true, they don't point toward abolition of the death penalty. Executing more white killers, or killers of black victims, would reduce any disparity just as well.

Those of us who cite the disproportionate application of the death penalty as a reason for outlawing it do so because we believe that a criminal-justice system is not an abstraction but a real thing, existing in a real context, with a real history. In America, the history of the criminal justice—and the death penalty—is utterly inseparable from white supremacy. During the Civil War, black soldiers were significantly more likely to be court-martialed and executed than their white counterparts. This practice continued into World War II. "African-Americans comprised 10 percent of the armed forces but accounted for almost 80 percent of the soldiers executed during the war," writes law professor Elizabeth Lutes Hillman.

In American imagination, the lynching era is generally seen as separate from capital punishment. But virtually no one was ever charged for lynching. The country refused to outlaw it. And sitting U.S. senators such as Ben Tillman and Theodore Bilbo openly called for lynching for crimes as grave as rape and as dubious as voting. Well into the 20th century, capital punishment was, as John Locke would say, lynching "coloured with the name, pretences, or forms of law."

The youngest American ever subjected to the death penalty was George Junius Stinney . It is very hard to distinguish his case from an actual lynching. At age 14, Stinney, a black boy, walked to the execution chamber

with a Bible under his arm, which he later used as a booster seat in the electric chair. Standing 5 foot 2 inches (157 cm) tall and weighing just over 90 pounds (40 kg), his size (relative to the fully grown prisoners) presented difficulties in securing him to the frame holding the electrodes. Nor did the state's adult-sized face-mask fit him; as he was hit with the first 2,400 V surge of electricity, the mask covering his face slipped off, “revealing his wide-open, tearful eyes and saliva coming from his mouth ... After two more jolts of electricity, the boy was dead."

Living with racism in America means tolerating a level of violence inflicted on the black body that we would not upon the white body. This deviation is not a random fact, but the price of living in a society with a lengthy history of considering black people as a lesser strain of humanity. When you live in such a society, the prospect of incarcerating, disenfranchising, and ultimately executing white humans at the same rate as black humans makes makes very little sense. Disproportion is the point.

The "Hey Guys, Let's Not Be Racist" switch is really "Hey Guys, Let's Pretend We Aren't American" switch or a "Hey Guys, Let's Pretend We Aren't Human Beings" switch. The death penalty—like all state actions—exists within a context constructed by humans, not gods. Humans tend to have biases, and the systems we construct often reflect those biases. Understanding this, it is worth asking whether our legal system should be in the business of doling out an ultimate punishment, one for which there can never be any correction. Citing racism in our justice system isn't mere shaming, it's a call for a humility and self-awareness, which presently evades us.

I was sad to see Ponnuru's formulation, because it so echoed the unfortunate thoughts of William F. Buckley. In 1965, Buckley debated James Baldwin at the Cambridge Union Society. That was the year John Lewis was beaten at the Edmund Pettus Bridge, and Viola Liuzzo was shot down just outside of Selma, Alabama. In that same campaign, Martin Luther King gave, arguably, his greatest speech. (" How Long? Not long. Truth forever on the scaffold. Wrong forever on the throne. ") In whole swaths of the country, black people lacked the basic rights of citizenship—central among them, the right to vote. Buckley spent much of his time sneering at complaints of American racism. When the issue of the vote was raised Buckley responded by saying that the problem with Mississippi wasn't that "not enough Negroes have the vote but that too many white people are voting."

There's something revealed in the logic—in both Ponnuru and Buckley's case—that we should fix disproportion by making more white people into niggers. It is the same logic of voter-ID laws , which will surely disenfranchise huge swaths of white voters, for the goal of disenfranchising proportionally more black voters. I'm not sure what all that means—it's the shadow of something I haven't worked out.

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The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment’s use).

Proponents of the death penalty being legal argue that such a harsh penalty is needed for criminals who have committed the worst crimes, that the punishment deters crime, and that the US Supreme Court has upheld the death penalty as constitutional.

Opponents of the death penalty being legal argue that the punishment is cruel and unusual, and, thus, unconstitutional, that innocent people are put to death for crimes they did not commit, and that the penalty is disproportionately applied to people of color.

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The first amendment, on this day, supreme court temporarily finds death penalty unconstitutional.

June 29, 2023 | by Scott Bomboy

On June 29, 1972, the Court decided in a complicated ruling, Furman v. Georgia , that the application of the death penalty in three cases was unconstitutional. The Court would clarify that ruling in a later case in 1976, putting the death penalty back on the books under different circumstances.

The debate over whether the death penalty constitutes cruel and unusual punishment dates back to the Founding Fathers. The Constitution’s Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In 1789, during the debate over the Bill of Rights in the First Congress, one argument was over the extent of the death penalty. Samuel Livermore of New Hampshire proposed that “it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off.”

“But are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind,” Livermore said.

The First Congress adopted a more moderate view when it proposed the Eighth Amendment for ratification in the Bill of Rights. It was also concerned about the use of harsh punishments in an arbitrary and disproportionate way.

The Supreme Court initially considered these factors as they would have applied in the Founders’ time. In 1879, the Court ruled in Wilkerson v. Utah that death by firing squad was permissible, but it agreed that old English practices of execution where prisoners were “emboweled alive, beheaded, and quartered,” publicly dissected and burned alive were unconstitutional.

Then in 1910, the Court broadened its criteria in Weems v. United States , which wasn’t a capital punishment case but still dealt with cruel and unusual punishment. The Justices referenced an earlier death-sentence case, In re Kemmler from 1890, which held that the first use of the electric chair was constitutional under the 8th and 14th Amendments. Later, the Court ruled that it was permissible to execute a person with the electric chair, for a second time, after a first attempt failed.

However, in 1972 the Court changed direction in Furman v. Georgia , when, in a very complicated ruling, a split 5-4 Court decided the death penalty application was unconstitutional in three cases.

Furman, an armed burglar, had tripped while fleeing a scene, causing his gun to discharge and kill a victim. The Court also considered two similar cases in the Furman decision. The Court filed a one-paragraph per curiam ruling and each of the nine Justices wrote their own separate opinions.

“The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings,” the brief opinion read.

Only two of the Justices believed the death penalty was unconstitutional under all circumstances. But the effect of the Furman decision was to place a four-year moratorium on all executions until more guidance came from a court challenge.

In 1976, in a series of decisions called the Gregg cases , the Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic sentencing to death, and said death sentences can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use by states of aggravating and mitigating circumstances in determining capital sentencing.

In later years, the Court has excluded certain classes of people from capital punishment, including the mentally handicapped and juveniles. It also eliminated rape and felony murder as capital crimes.

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The Death Penalty: Questions and Answers

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Since our nation's founding, the government -- colonial, federal, and state -- has punished a varying percentage of arbitrarily-selected murders with the ultimate sanction: death.

More than 14,000 people have been legally executed since colonial times, most of them in the early 20th Century. By the 1930s, as many as 150 people were executed each year. However, public outrage and legal challenges caused the practice to wane. By 1967, capital punishment had virtually halted in the United States, pending the outcome of several court challenges.

In 1972, in Furman v. Georgia , the Supreme Court invalidated hundreds of death sentences, declaring that then existing state laws were applied in an "arbitrary and capricious" manner and, thus, violated the Eighth Amendment's prohibition against cruel and unusual punishment, and the Fourteenth Amendment's guarantees of equal protection of the laws and due process. But in 1976, in Gregg v. Georgia , the Court resuscitated the death penalty: It ruled that the penalty "does not invariably violate the Constitution" if administered in a manner designed to guard against arbitrariness and discrimination. Several states promptly passed or reenacted capital punishment laws.

Today, states have laws authorizing the death penalty, as does the military and the federal government. Several states in the Midwest and Northeast have abolished capital punishment. Alaska and Hawaii have never had the death penalty. The vast majority of executions have taken place in 10 states from the South and over 35% have occurred in Texas. In 2004, the high courts of Kansas and New York struck down their death penalty statutes as unconstitutional and the legislatures have yet to reinstate them.

Today, about 3,350 people are on "death row." Virtually all are poor, a significant number are mentally disabled, more than 40 percent are African American, and a disproportionate number are Native American, Latino, and Asian.

The ACLU believes that, in all circumstances, the death penalty is unconstitutional under the Eighth Amendment. We also believe that the death penalty continues to be applied in an arbitrary and discriminatory manner in violation of the Fourteenth Amendment.

Frequently Asked Questions raised by the public about Capital Punishment Q : Doesn't the Death Penalty deter crime, especially murder? A : No, there is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates.

The death penalty has no deterrent effect. Claims that each execution deters a certain number of murders have been thoroughly discredited by social science research. People commit murders largely in the heat of passion, under the influence of alcohol or drugs, or because they are mentally ill, giving little or no thought to the possible consequences of their acts. The few murderers who plan their crimes beforehand -- for example, professional executioners -- intend and expect to avoid punishment altogether by not getting caught. Some self-destructive individuals may even hope they will be caught and executed.

Death penalty laws falsely convince the public that government has taken effective measures to combat crime and homicide. In reality, such laws do nothing to protect us or our communities from the acts of dangerous criminals.

Q : Don't murderers deserve to die? A : No one deserves to die. When the government metes out vengeance disguised as justice, it becomes complicit with killers in devaluing human life and human dignity. In civilized society, we reject the principle of literally doing to criminals what they do to their victims: The penalty for rape cannot be rape, or for arson, the burning down of the arsonist's house. We should not, therefore, punish the murderer with death.

Q : If execution is unacceptable, what is the alternative? A : INCAPACITATION. Convicted murderers can be sentenced to life imprisonment, as they are in many countries and states that have abolished the death penalty. Most state laws allow life sentences for murder that severely limit or eliminate the possibility of parole. Today, 37 states allow juries to sentence defendants to life imprisonment without the possibility of parole instead of the death penalty.

Several recent studies of public attitudes about crime and punishment found that a majority of Americans support alternatives to capital punishment: When people were presented with the facts about several crimes for which death was a possible punishment, a majority chose life imprisonment without parole as an appropriate alternative to the death penalty (see PA., 2007 ).

Q : Isn't the Death Penalty necessary as just retribution for victims' families? A : No. "Reconciliation means accepting you can't undo the murder; but you can decide how you want to live afterwards" ( Murder Victims' Families for Reconciliation, Inc. )

Q : Have strict procedures eliminated arbitrariness and discrimination in death sentencing? A : No. Poor people are also far more likely to be death sentenced than those who can afford the high costs of private investigators, psychiatrists, and expert criminal lawyers. Indeed, capital punishment is "a privilege of the poor," said Clinton Duffy, former warden at California's San Quentin Prison. Some observers have pointed out that the term "capital punishment" is ironic because "only those without capital get the punishment."

Furthermore, study after study has found serious racial disparities in the charging, sentencing and imposition of the death penalty. People who kill whites are far more likely to receive a death sentence than those whose victims were not white, and blacks who kill whites have the greatest chance of receiving a death sentence.

Minorities are death-sentenced disproportionate to their numbers in the population. This is not primarily because minorities commit more murders, but because they are more often sentenced to death when they do.

Q : Maybe it used to happen that innocent people were mistakenly executed, but hasn't that possibility been eliminated? A : No. Since 1973, 123 people in 25 states have been released from death row because they were not guilty. In addition, seven people have been executed even though they were probably innocent. A study published in the Stanford Law Review documents 350 capital convictions in this century, in which it was later proven that the convict had not committed the crime. Of those, 25 convicts were executed while others spent decades of their lives in prison. Fifty-five of the 350 cases took place in the 1970s, and another 20 of them between l980 and l985.

Our criminal justice system cannot be made fail-safe because it is run by human beings, who are fallible. Executions of innocent persons occur.

Q : Only the worst criminals get sentenced to death, right? A : Wrong. Although it is commonly thought that the death penalty is reserved for those who commit the most heinous crimes, in reality only a small percentage of death-sentenced inmates were convicted of unusually vicious crimes. The vast majority of individuals facing execution were convicted of crimes that are indistinguishable from crimes committed by others who are serving prison sentences, crimes such as murder committed in the course of an armed robbery.

The death penalty is like a lottery, in which fairness always loses. Who gets the death penalty is largely determined, not by the severity of the crime, but by: the race, sex, and economic class of the prisoner and victim; geography -- some states have the death penalty, others do not, within the states that do some counties employ it with great frequency and others do not; the quality of defense counsel and vagaries in the legal process.

Q : "Cruel and unusual punishment" -- those are strong words, but aren't executions relatively swift and painless? A : No execution is painless, whether botched or not, and all executions are certainly cruel. The history of capital punishment is replete with examples of botched executions.

Lethal injection is the latest technique, first used in Texas in l982, and now mandated by law in a large majority of states that retain capital punishment. Although this method is defended as more humane, efficient, and inexpensive than others, one federal judge observed that even "a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." In Texas, there have been three botched injection executions since 1985. In other states, dozens of botched executions have occurred, leading to suspensions of executions in Florida, California, and other states.

In 2006, it took the Florida Department of Corrections 34 minutes to execute inmate Angel Nieves Diaz by way of lethal injection, usually a 15 minute procedure. During the execution, Diaz appeared to be in pain and gasped for air for more than 11 minutes. He was given a rare second dose of lethal chemicals after the execution team observed that the first round did not kill him. A medical examiner reported the second dose was needed because the needles were incorrectly inserted through his veins and into the flesh in his arms. Not only did Diaz die a slow and excruciating death because the drugs were not delivered into his veins properly, his autopsy revealed that he suffered 12 inch chemical burns in his arms by the highly concentrated drugs flowing under his skin.

More recently, an Ohio inmate did not die when his injections were incorrectly administered. Minutes into the execution, he raised his head and said, "It don't work, it don't work."

Eyewitness accounts confirm that execution by lethal injection and other means is often an excruciatingly painful, and always degrading, process that ends in death.

Capital punishment is a barbaric remnant of uncivilized society. It is immoral in principle, and unfair and discriminatory in practice. It assures the execution of some innocent people. As a remedy for crime, it has no purpose and no effect. Capital punishment ought to be abolished now.

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Indian Legal Solution Journal of Criminal and Constitutional Law

CONSTITUTIONAL VALIDITY OF DEATH PENALTY: SAMHITHA & P. VASISHTAN

Posted on July 15, 2020 July 29, 2020 Author Your Admin Leave a comment

CONSTITUTIONAL VALIDITY OF DEATH PENALTY

Author: Samhitha Sharath Reddy

Co-Author: P. Vasishtan *

ISSN: 2581-8465

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. Most systems of religion or ethics teach that bad actions lead to bad consequences. There are two main reasons for inflicting punishment. One is the belief that it is both right and just that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages others from doing wrong. The death penalty also rests on the same proposition as other punishments. Because of its drastic and irrevocable nature, it is even more open to debate over its fairness, appropriateness, and effectiveness than other punishments. The proponents of the death penalty believe that it is an effective way to stop crime. They focus on the death penalty as a deterrent or something that will stop or lessen crime. They believe that the death penalty brings the most justice to the victim of a heinous crime.

The death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crimes, as well as the mode of punishment, correlate to the culture and form of civilization from which they emerge. At this point in time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them. Another issue is regarding the extent of judicial discretion.

This paper will analyse the Constitutional Validity of the death penalty across Jurisdictions, the Abolitionist and Retentionist debate on Capital Punishment and the position in India in the present scenario context.

INTRODUCTION

According to The Oxford Dictionary, Capital Punishment is the “ legally authorized killing of someone as punishment for a crime ”. [1] Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder, etc. wherein the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment. Capital Punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. [2]

There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the fundamental reasons for the punishment of any kind. Since death is considered the harshest punishment available under the law, it seems logical that it must also be the most effective deterrent to crime. The English barrister Sir James Stephen remarked, “No other punishment deters men so effectually from committing crimes as the punishment of death.” “In any secondary punishment, however terrible, there is hope; but death is death; its terror cannot be described more forcibly.” [3]

The federal prisons now have custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three more murderers on three separate occasions- both prison guards and inmates. There is no further punishment that he can receive. In effect, he has a license to murder. [4]

ORIGINS OF CAPITAL PUNISHMENT

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of the ancient society imposed it only for the most heinous crimes and some imposed it for minor offences. For example, under Rome’s law in the 5 th century B.C., death was the penalty for publishing insulting songs and disturbing the peace of the city at night. [5] Under Greece’s Draconian Legal Code in the 7 th century B.C., death was the punishment for every crime. Beginning in ancient times the executions were frequently carried out in public. Public executions provided benefits for everyone. For the surviving victims of the condemned criminals, the execution provided the grim satisfaction of witnessing the final punishment of those who had wronged them. For the authorities, executions served as graphic demonstrations of their determination to protect public safety. Public executions even helped the authorities to do their jobs serving as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended as much on the social standing of the criminal as on the nature of the crime. The commoners were executed much more often than nobles. Minorities and foreigners were treated more harshly than members of the dominant group. The methods of execution were also varied. The common modes of inflicting the death sentence on the offender were drowning, burning, boiling, beheading, hurling the offender from rock, stoning, strangling, impelling, amputating, shooting by gun, or starving him to death. Hanging and beheading were the most common methods of execution in Europe and Great Britain. At present, the common modes of execution of the death sentence are asphyxiation, electrocution, guillotine, shooting, and hanging. The method of execution by electrocution was first used at Auburn State Prison, New York on 1890 and is now being extensively used in USA, UK, USSR, Japan and other European countries. The use of Guillotine for execution was introduced in France in 1792. The method of hanging the condemned prisoner till death has been commonly in use in almost all the countries for ages. In India public hanging is now held to be unconstitutional. [6]

CAPITAL PUNISHMENTS IN VARIOUS COUNTRIES

Now let us have a look at what other countries in the world, have to offer when it comes to the death penalty and some of their famous cases in history, recorded.

CAPITAL PUNISHMENTS IN AMERICA:

In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal government the right to set their own criminal penalties. The very first congress of the United States passed federal laws making the death penalty for rape and murder and other crimes. Although the death penalty was widely accepted in the early United States, its approval was not universal. Some of the people viz. Cesare Beccaria, Thomas Jefferson, Dr. Benjamin Rush expressed serious doubts and objections and advocated that capital punishment might be abolished. And in 1917, the state of Missouri and the territory of Puerto Rico both abolished the death penalty. The opposition to the death penalty gathered strength again in the mid-twentieth century after the controversial executions of Willie Francis, Burton Abbot, Caryl Chessman, and Barbara Graham. Once again, several states either abolished or restricted the use of the death penalty.

In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga [7] , the U.S. Supreme Court declared that the death penalty, as it was then carried out, was ‘cruel and unusual’ punishment, therefore it was constitutional. Four years later, the Court ruled in several cases. In Gregg v. Georgia [8] , the Supreme Court said that the death penalties imposed in some states under new laws were constitutional. But the murder is a capital offence in all 38 of the U.S. states that have the death penalty.

CAPITAL PUNISHMENT IN BRITAIN:

Hanging was the traditional form of capital punishment in England. However, it was not the only one. In England, beheading was normally reserved for the highborn and it was last used in 1747. Hanging was the most common method of execution in England from Saxon times until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were hanged on the same day in 1964. In Britain, the death penalty for murder was abolished for an experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held on the restoration of capital punishment in 1979 and 1994 but both times it was rejected. [9]

CAPITAL PUNISHMENT IN CHINA:

Capital punishment in the People’s Republic of China is usually administered to offenders of serious and violent crimes, such as aggravated murder, but China retains in law, a number of non-violent capital offenses such as drug trafficking. The People’s Republic of China executes the highest number of people annually, though other countries such as Iran or Singapore have higher per-capita execution rates. Watchdog groups believe that actual execution numbers greatly exceed officially recorded executions: in 2009, the Dui Hua Foundation estimated that 5000 people were executed in china – far more than all other nations combined.

CAPITAL PUNISHMENT IN INDIA:

In the year 1975 and 1991, about 40 people were executed. The year 1995-2004 when there were no executions. Anti-the death penalty activists dispute those figures, claiming much higher numbers on Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14-year-old schoolgirl in Calcutta. This was the country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death Row. It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the president. [10]

MODE OF EXECUTION:

The execution of the death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of the death sentence in India. Once the death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death.

Section 354(5) of Code of Criminal Procedure says, “ When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” It is also provided under The Air Force Act, 1950, The Army Act, 1950, and The Navy Act, 1952 that the execution has to be carried out either by hanging by next till death or by being shot to death.

CAPITAL PUNISHMENT UNDER VARIOUS LEGISLATIONS IN INDIA

Capital punishment is prescribed as one of the punishments in various provisions of

The Indian Penal Code 1860,
The Arms Act 1959,
The Narcotic Drugs and Psychotropic Substances Act 1985,
The Scheduled Case and Scheduled Tribes (Prevention of Atrocities) Act,
The Commission of Sati (Prevention) Act, 1987,
The Air Force Act, 1950,
The Army Act 1950 and
The Navy Act, 1952

In the prevention of Terrorism Act, 2002 also, there was a provision for the death penalty for causing death to persons using bombs, dynamite or other explosive substances in order to threaten the unity and integrity of India or to strike terror in the people. It is also interesting to note that under the Arms Act, NDPS Act and the Scheduled Caste and Scheduled Tribes Act, Capital Punishment is the only punishment for the offence covered by those sections, thus leaving no room for the judiciary to exercise its discretion. It is doubtful whether these provisions can stand the test of the constitutional validity in the light of the decision in Mithu v. State of Punjab. [11]

It is Because in this case Section 303 of the Indian Penal Code was struck down as violative of Article 21 [12] and 14 [13] of the Constitution of India, as the offence under the section, was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus resulted in an unfair, unjust and unreasonable procedure depriving a person of his life.

ABOLITION OF CAPITAL PUNISHMENT

There are four groups of countries regarding the abolition or retention of capital punishment. These are: [14]

ABOLITIONIST FOR ALL CRIMES

Countries whose laws do not provide for the death penalty for any crime like New Zealand, Germany, Greece, etc.

ABOLITIONIST FOR ORDINARY CRIMES ONLY

Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances: Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia, and Peru.

ABOLITIONIST IN PRACTICE

Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established the practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty like Algeria, Laos, the Russian Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia, etc.

RETENTIONIST

Countries and territories that retain the death penalty for ordinary crimes: Afghanistan, India, Japan, China, Singapore, Syria, Taiwan, Thailand, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe, etc.

THE DEBATE OVER THE ABOLITION AND RETENTION

“An eye for an eye will make the whole world blind.”

— Mohandas Karamchand Gandhi

The United Nations High Commissioner for Human Rights called a meeting in early July to commemorate the fifth anniversary of the General Assembly’s vote in favour of a moratorium on the death penalty. The Secretary-General Ban Ki-Moon delivered some remarks [15] in which he delivered some remarks in which he reminded listeners that more than 150 countries have either abolished capital punishment or restricted its application. Some 32 states retain the death penalty in case of drug-related crimes and last year only 20 countries actually conducted executions. In the United States, 17 states have done away with the death penalty.

The right to life is the most fundamental of all human rights. It lies at the heart of international human rights law. The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. Where the death penalty persists conditions for those awaiting execution are often horrifying, leading to aggravated suffering. Information concerning the application of the death penalty, including secret trials and executions, is often cloaked in secrecy. And it is beyond dispute that innocent people are still put to death.

The United Nations system has long advocated the abolition of the death penalty. Yet the death penalty is still used for a wide range of crimes that do not meet that threshold.

THE ARGUMENTS

The top considered arguments are listed below for Retention and Abolition. These arguments have been briefly written based on some landmark cases in India that challenged the constitutional validity of the death penalty in India.

ARGUMENTS FOR THE RETENTION:

Capital punishment acts as a deterrent. If the death sentence is removed, the feat that comes in the mind of people committing murders will be removed. “Do we want more of murders in our country or do we want less of them?” All sentences are awarded for security and protection of society, so that every individual may live in peace. Capital punishment is needed to ensure this security. [16]
Elimination of the Criminals. When public peace is endangered by certain particularly dangerous forms of crime, the death penalty is the only means of eliminating the offender. [17]
Possibility of repeated murders. The society must be protected from the risk of a second offence by a criminal who is not executed and who may be released, after release may commit murder again. [18]
Condition in India. In countries where capital punishment has been abolished, the figure of homicide is very low. Four in a million or even less than that. [19]
Public Opinion. Public opinion is substantially in favour of capital punishment, and it would be unwise to abolish capital punishment contrary to the wishes of the majority of the citizens.
Prison Administration. Keeping murderers alive in the prison greatly complicates the word of prison administration. [20] If all the convicted murderers were imprisoned, the safety of the prison staff and the general public from the dangerous prisoners would be at risk. [21]
Saving of Funds. The money of the citizens should not be spent on maintaining people who cause great harm. [22] The taxpayers should not be called upon to pay for the maintenance of anti-social criminals for an indefinite or for a very long period of time. [23]
Proportionate to Crime. The punishment for a crime should bear a just proportion to the crime. Therefore, capital punishment is the only fit punishment for those who have deliberately violated the sanctity of human life. [24]
More Humane. Capital punishment in a painless and more humane form is less cruel than imprisonment for life.
No Miscarriage of Justice. If there is a miscarriage of justice in one or two cases, the higher courts can be approached. The whole machinery of the Government would be there to protect the life of a person who is really innocent.

ARGUMENTS FOR THE ABOLITION:

Capital punishment should be abolished because it is a legalized, revengeful, and cruel destruction of God’s most wonderful creation, the human being.

Immoral . Capital punishment is morally indefensible. Society has no right to take the life of any person. It is morally wrong for the state in the name of the law to take the life deliberately. [25] In eliminating the criminals, it is stated that the ‘State does not erase the crime, but repeats it’. [26]
Inhumane. Capital punishment is essentially inhumane. The death penalty is a form of cruelty and inhumanity unworthy of a humane civilization; even the most efficient methods of execution do not result in instantaneous and painless death. [27] Humanity demands that capital punishment comes to an end. [28]
Non-violence. The Indian ideology is based on non-violence. Indian tradition is based on the reformation of the mind and the spirit. Where it was the opinion that only God could take away life given by him. Therefore, a murderer should be sent to a penitentiary and there given every chance of reforming himself.
Irrevocable. Capital punishment is irrevocable. If an innocent person is sentenced to death and executed, the greatest injustice results. [29] When as a result of an erroneous conviction, a man is sent to prison, he can be compensated. But death admits of no compensation. [30]
Unjust. The sentence of death injures the family of the offenders and thus, imposes suffering on persons who have done nothing to deserve the suffering.
Unequal Application. The death penalty is applied unequally. Some persons who have not sufficient financial means to defend themselves or are morally unable to do so, suffer. [31] The penalty, therefore, which should be the expression of absolute justice, often leads in practice to injustices against the individuals.
An Eye for an Eye. It will suffice to note that thesystem of individual revengeis no longer recognized. The punishment should not be given to any offender having this principle in the mind. The Court should adopt the retributive approach in these cases.

Sometimes there may be a mistaken view of the law. Thus, it is argued that a person was sentenced to death in one Madras Full Bench case, on a confession made by him, to an investigating officer. Ten years later, the Privy Council, in a similar case, held that this case was wrongly decided and that the confessions ought not to have been admitted in evidence. [32]

THE CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT

Article 21 of The Constitution of India provides protection of life and personal liberty to every people. And the deprivation of life of anyone is unconstitutional under Article 21. It is also said that “ No person shall be deprived of his life or personal liberty except according to the procedure established by law”, it means, if there is a procedure then the state can deprive a person of his life.

In many countries, there has been a demand for the abolition of the death penalty and in some, this demand has been accepted and the death penalty has been abolished. In India, too there are many social workers including lawyers and judges who have voiced this demand. Krishna Iyer J. very recently while addressing a Human Rights organization strongly expressed himself in favour of the abolition of the death penalty.

Justice A.K. Ganguly of the Supreme Court has termed the award of the death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system. The doctrine of the crime falling in the ‘rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges. He cautioned that before giving the death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances. [33]

Through Article 21, the State is given the power to take away the life of a person through a procedure established by law. This means that though there is a procedure established by law, the State can deprive a person of his life. Through judicial pronouncements, this procedure is interpreted to mean, a fair, just, and reasonable one. Though the constitutional validity of the death punishment was challenged as violative of Article 19 and 21 of the Constitution of India, because it didn’t provide any procedure to the Court upheld the validity of the death sentence. Since the procedure by which life is taken is fair, just, and reasonable. The judges are given ample power to exercise their discretion to award the death penalty as against imprisonment for life.

The question of the constitutional validity of the death penalty has been raised before the Supreme Court of India more than once. In the case of Jagmohan Singh v. State of Uttar Pradesh, [34] the constitutional validity of the death penalty was upheld by the Supreme Court by a unanimous decision of the five Judges comprising the Bench.

In the case of Rajendra Prasad v. State of Uttar Pradesh, [35] Krishna J. Iyer said that the death penalty directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has been provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further said that to impose the death penalty, the two things must be required.

The special reasons should be recorded for imposing the death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.

The question was again considered by a five Judge Bench in case of Bachan Singh v. State of Punjab, [36] particularly in view of certain observations of Krishna Iyer. In Bachan Singh case, judges considered the social, ethical, and even the spiritual aspect of the death penalty while upholding the constitutional validity thereof.

But by a majority of four to one, Bhagwati J in Bachan Singh case recorded a dissenting note. Bhagwati J, in his dissenting judgment has given a number of reasons for holding that the death penalty is not only unconstitutional being violative of articles 14 and 21 but also undesirable from several points of view. One of the reasons given by him is that the death penalty is irrevocable because the execution of the sentence of death in such a case makes miscarriage of justice irrevocable.

He referred to the Book The death penalty in America by Hugo A. Bedau which catalogs 74 cases in which it has been responsibly charged and in most of them proved beyond doubt that persons were wrongly convicted and executed though innocent. It is no doubt true that conviction and execution of an innocent man for murder shock the human conscience and it is also true that human judgment is not infallible but I may respectfully point out that the criminal law in our country is heavily loaded in favour of the accused and an erroneous conviction is not at all possible. In England and America, the trial is by jury and it may with utmost honesty more readily records an erroneous verdict of guilty than a judge. A jury is very much influenced by the consideration that the interests of the society demand that no offender who perpetrates a shocking crime should escape the clutches of law and the punishment he deserves. A judge’s approach in our country is more cautious. He is guided by the principle that a hundred guilty persons may escape but not one innocent person should be convicted.

NO CHANCE FOR INJUSTICE:

It is on the basis of this principle that in India benefit of reasonable doubt is given to the accused even in cases of murder. A defense counsel uses all his skills and ingenuity to create a doubt in the mind of the judge and he gets repeated opportunities to do so. If he fails in the trial court, he makes a second attempt in the High Court and a third one before the Supreme Court. Thus, the possibility of an erroneous conviction is wholly excluded.

Apart from this the power of pardon, remission, and commutation of sentence vested in the Governor and the President furnish another safeguard against a judicial error in the matter of punishment. The whole matter is examined with great care and caution while exercising the said power, keeping in view the interests of the individual on the one hand, and interests of the society on the other. The President is the elected head of the State and is expected to give effect to the will of the people. Thus, a convict cannot be executed unless the extreme penalty in a particular case is not only considered proper in a judicial verdict but is also in consonance with the wishes of the people in general. I need not refer to other aspects of the matter which have been dealt with at length by Sarkaria J , in his elaborate majority judgment but I would like to stress one aspect of the matter. I fail to see why too much importance should be attached to the life of an individual who has been found guilty of a heinous offence when the interests of the society demand that the death penalty should be awarded to him.

Often in the event of a riot, the police are required to open fire in the interests of society to disperse an unruly mob indulging in arson and violence to restore order if other methods fail. In such a firing even, innocent persons are killed. Shall we say that the police should never resort to firing to quell a riot or to disperse a riotous mob merely because there is a risk of innocent persons being killed? No one will ever say that. If so, why should we have qualms of conscience in awarding the death penalty to an offender in extreme cases where the interest of the society demands it? The reformative aspect of justice is no doubt very important. But we do come across criminals who are beyond redemption.

Even Krishna Iyer, who strongly advocated the social and human aspect of law conceded in Rajendra Prasad’s case that the death penalty may be legally permissible when he can never be reformed.

Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of the Code of Criminal Procedure, the Court has to give special reasons for awarding the death penalty. Section 235(2) provides a hearing after conviction on the question of sentence. “ Hanging of a murderer gives no pleasure to a judge . He merely discharges a painful duty while awarding the death sentence in the interests of the society”. We can, therefore, repose trust in the judges that they would discharge this onerous function with scrupulous care and human concern bearing in mind that imprisonment for life is the normal penalty for murder while the death penalty is to be awarded only where the offender appears to be extremely depraved and a potential menace to society. So far as the constitutional aspect is concerned very cogent reasons are given in the majority judgment for upholding the constitutional validity of the death penalty

To sum up, there can be no doubt about the constitutionality of the death penalty in our country. As regards its propriety in a particular case the matter has to be left to the discretion of the judge who has to bear in mind that normally imprisonment for life is the appropriate sentence for murder under section 302 IPC, particularly in the case of a woman. In the case of adult males, the death sentence may be awarded in cases where the murder and the entire circumstance of the case show that he is a potential menace to society. The question of the propriety of the death penalty in a particular case has to be judged not merely from the point of view of the accused; the interests of the community as a whole must also be taken into consideration.

Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v. State of Punjab [37] held that the death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.

The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat [38] and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.

SECTION 303 OF INDIAN PENAL CODE

In the case of Mithu v. State of Punjab, [39] it was contended that mandatory sentence of death for a murder committed by life-convicts under section 303 of IPC is violative of rights guaranteed under Article 14 and 21. Therefore, section 303 of IPC is unconstitutional not only for the reason that it is unreasonable and arbitrary but also because it authorizes deprivation of life by an unjust and unfair procedure. Section 303 of IPC provides punishment for murder by life convict-Whoever, being under sentence of imprisonment for life commits murder, shall be punished with death.” In this case, the Supreme Court struck down section 303 of Penal Code as unconstitutional and declare it void.

DELAY IN EXECUTION OF THE DEATH SENTENCE

Delay in the execution of the death sentence is a factor that may be taken into consideration for commuting the sentence of death to life imprisonment. In the case of Triveniben v. State of Gujarat, [40] the Supreme Court held that “….undue long delay in execution of the death sentence will entitle the condemned person to approach this court will under Article 32, but this court will only examine the nature of delay caused and circumstances ensued after the sentence was finally confirmed by the judicial process…. No fixed period of delay could be held to make the sentence of death in executable. If the Supreme Court finds the delay to be undue in the foregoing sense, the court would quash the sentence of death and substitute for it the sentence of imprisonment of life to that accused. The procedure established by law in Article 21 means a procedure which is just, fair and reasonable. Hence, any circumstance which renders the sentence harsh, unjust, or unfair, offends Article 21. [41] An undue long delay in execution of the death sentence after its confirmation (ss 413-415, CrPC), for which the accused himself is not responsible, renders the sentence harsh and unjust as it causes additional torture and inhuman treatment. [42]

ROPE-HANGING

The question arose before the Supreme Court in Deena v. Union of India, [43] whether the execution of the death penalty by hanging by rope is constitutional or not? Supreme Court held that the method prescribed by s. 354(5), Cr. P.C. for executing the death sentence does not violate the provision contained in Article 21 of the Constitution. The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of the scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence.

PUBLIC HANGING

Another question arose before the Supreme Court in Lachma Devi v. State of Rajasthan [44] whether for the execution of the death penalty public hanging is constitutional or not? For answering this question, the Supreme Court adopted a liberal view and held that public hanging is not prescribed in the prison rules therefore it is unconstitutional.

THE PRINCIPLE OF RAREST OF RARE CASES

Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be considered as fit ones for awarding capital punishment. Thus, capital punishment is awarded only in rarest of rare cases. The determination of this is very difficult. There are various decisions in which the determination of rarest of the rare was in question. The Court could not follow any uniform guideline to reach a conclusion, and the subjectivity of the judges also play a vital role in this determination. The death sentence should be imposed in the rarest of rare cases. The Supreme Court in Machhi Singh v. State of Punjab [45] (1983) The Apex Court laid down a few principles which were to be kept in mind while deciding the question of the sentence:

Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for the death sentence?
Are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according to maximum weightage to the mitigating circumstances which speak in favour of the offenders?

RECENT RAREST OF RARE CASES OF CAPITAL PUNISHMENT

The below-mentioned cases are some of the recent cases regarding the death penalty that were also considered as rarest of rare ones.

The appellant, Dhananjoy Chatterjee was found guilty of offences punishable under Sections 376, 302, and 380 of the Indian Penal Code by judgment and was awarded the death sentence by the session judge, confirmed by the High Court. A special leave petition was filed by the appellant. Leave was granted but the appeal was dismissed by the Supreme Court.

A young child of 9 years was sacrificed before Goddess Kali by the appellant for his own prosperity is what the prosecution alleges. The Supreme Court awarded the death penalty to the accused.

Stressing that leniency in punishing grave crimes would have serious consequences the supreme court has awarded the death penalty to a man for the rape and murder of a six-year-old girl.

Mumbai Special Court convicted Ajmal Kasab for murder, waging war on India, possessing explosives and other charges, and later, sentenced him to death. He was found guilty of 80 offences and was held accountable for killing 166 people mercilessly and injuring thousands of people while bringing loss to the state and private properties of over 1000 crores.

CRITICAL ANALYSIS

The death penalty has faced much opposition as of late. Can the death penalty possibly be a morally acceptable punishment? A popular quote across the internet by Anonymous says, “ We kill people to show people that killing people is wrong .” The slogan is short, simple, and to the point. But is there really such irony in capital punishment as the slogan implies?

First of all, the slogan misses an important point. The death penalty does not punish people for killing, but for murder. Killing is justified when it is done in self-defense. Killing means to cause death. Murder, on the other hand, is defined as, “the unlawful and malicious or premeditated killing of one human being by another” (for the less observant, this definition cannot be applied to the death penalty, because the death penalty is lawful, non-malicious, and is not carried out by an individual but by the government). “Kill,” “murder,” and “execute” are not interchangeable terms. The death penalty opponents would like us to believe otherwise. Just because two actions result in the same end does not make them morally equivalent. If it were so, legal incarceration would be equated with kidnapping, lovemaking with rape, self-defense with battery, etc. Therefore, the slogan is better stated, “We execute people to show people that murder is wrong.”

Morality is defined as “the principles of right and wrong.” As moral creatures, humans deserve praise for good deeds and punishment for bad ones. Punishment may range from a slap on the wrist to death, but the punishment must fit the crime. This is known as lex talionis , or in common jargon, “an eye for an eye.” Certainly, this is the case if we take the lex talion literally, and the criminals deserve those punishments, but we needn’t take it literally. The ancient Jews did not. [50] They allowed for monetary compensation for physical or property damage.

Why then, if it is not morally okay to rape rapists, is it acceptable to execute murderers? The answer is simple. There is no redeeming value to carrying out the former punishment. Raping the rapist will only cause someone else to degrade themselves by doing it. It will not prevent the rapist from raping again. Executing murderers, however, prevents them from committing their crime again, and thus protects innocent victims. The good, therefore, outweighs the bad, and the executioner is morally justified in taking the murderer’s life. On the other hand, if the abolitionist argues that killing is always wrong, then he must also concede that killing in self-defense is unacceptable and should be punished. Few, if any, however, are willing to do so. The abolitionist may choose to argue that the state should never kill. But consider also the scenario of protecting someone else’s life. Are police officers (the state) justified in killing attempted murderers to save a victim’s life? If the answer to this question is yes, then the question is no longer if the state is justified in taking the life of criminals but when.

Morally, it is wrong to simply incarcerate someone for murder. A sentence of life in an air-conditioned, cable-equipped prison where a person gets free meals three times a day, personal recreation time, and regular visits with friends and family is a slap in the face of morality. This betrays an ignorance, however, of current trends. Eventually, criminal rights activists will see to it that all prisons are nice places to go. This is so, simply because a loss of freedom does not and cannot compare to a loss of life. If the punishment for theft is imprisonment, then the punishment for murder must be exponentially more severe, because human life is infinitely more valuable than any material item.

Killing someone for killing other people is both hypocritical and unjust. Maybe seeing the person who killed someone you know and love would give you peace, but it won’t bring them back. Not to mention, maybe the prosecuted has a family as well. Does anyone think about them? Offer comfort and condolences? No. They throw them from society, saying they were close to a murderer and are just as bad. Plus, crimes are acts of revenge. Revenge isn’t without reason. And no one ever asks what that reason is before it’s too late. Therefore, the constitutional validity of the death penalty should not be constitutional and should be taken down as soon as possible from the Constitution of India.

In view of the above discussions, we can see that India’s thinking on capital punishment is still quite muddled up. It is not just a debate of legality and constitutionality of the death penalty but also the moral and social aspects that are related to this controversial topic that has led to extensive confusion in this respect. Keeping away the question of law, the question of the death penalty has to take into consideration factors such as public sentiments on one hand and tussle with the moral issue of the “eye for an eye” principle on the other. Also, it is known to us that error in making judgments is only humane and sometimes giving someone a second chance is like giving them a bullet again because they missed you the first time.

In the end I would like to end with a suitable quote by Bernard Shaw.

“ Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society…..Murder and capital punishment are not opposites that cancel one another but similar that breed their kind .”

Maybe there is no real right or wrong answer to the issue of capital punishment, or maybe if there is the society in our country needs to develop to a level where the answer becomes clear to us. Until then what is required is a careful examination of facts and evidence by the judiciary in every such sensitive case to avoid any possibility of error. Also, India lacks an authentic statistical database of the number of convicts being sentenced to death and executed in relation to various other factors which would give us a clearer picture of what needs to be done ahead.

* V Year, B.A., LL.B. (Hons.), Tamil Nadu National Law University, Tiruchirappalli.

[1] http://oxforddictionaries.com/definition/english/capital%2Bpunishment Last Accessed on 22-10-2016

[2] http://www.legal-explanations.com/definitions/capital-punishment.htm Last Accessed on 22-10-2016

[3] Leonard A Stevens, Death Penalty: The Case of Life vs. Death in the United States. Pp.74

[4] Bring back death Penalty, THE HINDU, Chennai Edition, dated 12 th October, 2005

[5] George S. Blumer, Capital Punishment: A Reference Book, pp.552

[6] Lachuma Devi v. State of Rajastan, (1986) Cri L.J. 364

[7] 408 US 238 (1982)

[8] 428 US 153 (1976)

[9] http://ww.localhistories.org/capital.html Last Accessed on 22-10-2016

[10] http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html . Last Accessed on 22-10-2016

[11] AIR 1983 SC 47

[12] Right to Life and Dignity

[13] Right to Equality before Law.

[14] http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries . Last accessed on 27-10-2016

[15] http://www.un.org/News/Press/docs/2012/sgsm14393.doc.html . Last Accessed on 27-10-2016.

[16] U.N. Publication, Rex. K. Singer, Death Validity? Pp 57

[17] Ceylon Report, summary of arguments, pp 223 under Prison administration.

[18] Supra note 14

[19] Id. At 93

[20] Id. At 99

[21] Supra note 17

[22] Supra note 18

[23] Id. At 97

[24] Law Commission of India, 35 th Report Volume I-III (Capital Punishment) September 1967, Ministry of Law, Government of India.

[25] Supra note 19 pp. 105

[26] Id. At 109

[27] Id. At 103

[28] Supra note 22

[29] Id. At Volume III

[30] Id. At Volume II

[31] Id. At Volume II

[32] The Ongoing Rajiv Gandhi murder case.

[33] Athappa Goundan v. Emp. (AIR 1937 Mad. 618, 629)

[34] U.N. Publication (1962), pp 62. Last Accessed on 22-10-2016

[35] http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-sc-judge-the-rarest-of-rare-cases.html . Last Accessed on 22-10-2016.

[36] AIR 1973 SC 947

[37] AIR 1980 SC 989

[38] AIR 1980 SC 546

[39] AIR 1983 SC 465

[40] AIR 1989 SC 1335

[41] AIR 1983 SC 473

[42] Supra note 38

[43] Supra note 36

[44] AIR 1983 SC 1155

[45] AIR 1983 SC 947

[46] [2004] 9 SCC 759

[47] AIR 2004 SC 394

[48] Appeal (cri.) 256-257 of 2005

[49] CRIMINAL APPEAL NOS. 1899-1900 of 2011.

[50] Rodriguez, Angel Manuel. Eye for an Eye . Last accessed on 21-10-2016

Is the Death Penalty a Cruel and Unusual Punishment?

This post is part of our series on the Bill of Rights . We’re highlighting primary sources from our student workbook Putting the Bill of Rights to the Test , that helps students explore core concepts found within the Bill of Rights, and how they’ve impacted American history. This year marks the 225th anniversary of the ratification of the first 10 amendments to the Constitution, known as the Bill of Rights. The National Archives is commemorating the occasion with exhibits, educational resources, and national conversations that examine the amendment process and struggles for rights in the United States.

America’s Founders witnessed a time when branding, ear cropping, drawing and quartering, and other methods of torture were commonplace. In order to safeguard citizens from excessive punishment the Eighth Amendment ensures individuals protection from cruel and unusual punishment.

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted .

But what is cruel and unusual punishment and who decides what is considered cruel and unusual? How can it be measured?

In 1900, eighteen people in Van Buren County, Arkansas, felt compelled to petition the government and express their disagreement with capital punishment. Both the group’s freedom of expression and right to petition the government are protected by the First Amendment, but the issue they raised directly relates to the Eighth Amendment.

For the petitioners, capital punishment or the death penalty, was simply murder. They felt individuals should not be put to death, but could be rehabilitated after much introspection and reflection. The petitioners’ goal was to have Congress abolish the death penalty and for America to take its place as a moral leader of the world.

Direct students to read the opening paragraphs of the petition. Ask them to carefully note the following:

What do the petitioners define capital punishment to be?
What do they hope will happen to capital punishment?
What do the petitioners believe is an alternative to the death penalty?

Begin a discussion by focusing on the language used in the petition. Ask the following questions:

What feelings are the petitioners hoping to evoke from the members of Congress by titling the petition “The Light of Truth”?
What do the petitioners believe to be “pure Justice” and how can it be obtained?
What do the petitioners mean when they use the word “Humanitarianism”?
What do you think the petitioners’ main influence is for writing this petition? Ask students to cite specific words or phrases from the text that support their argument.

Further the discussion by asking students to share their thoughts on the following:

What does cruel and unusual mean?
How is the cruelty of a punishment measured?
Who decides if a punishment is cruel and unusual?

Explain to students that the death penalty is still a hotly debated topic today for many reasons. Guide a class discussion, asking students to:

List the arguments used by both sides of the issue as to why capital punishment should or should not be abolished.
Conduct research to find out how many states have abolished the death penalty and how many states still use capital punishment. Is it still legal in the state of Arkansas or has it been abolished?

Conclude the class discussion by sharing the following phrase from the Fifth Amendment and asking these follow-up questions:

No person shall be held to answer for a capital, or otherwise infamous crime,…nor be deprived of life , liberty, or property, without due process of law….

How should the Fifth and Eight Amendments be balanced?
Based on this, do you believe the Founders felt that capital punishment was an appropriate punishment as long as a person had received proper due process?

Capital Punishment: The end of the death penalty

Death Penalty

Why the era of capital punishment is ending

By David Von Drehle

The case of Dzhokhar Tsarnaev absorbed Americans as no death-penalty drama has in years. The saga of his crime and punishment began with the shocking bloodbath at the 2013 Boston Marathon, continued through the televised manhunt that paralyzed a major city and culminated in the death sentence handed down by a federal jury on May 15 after a two-phase trial.

Justice was done, in the opinion of 70% of those surveyed for a Washington Post–ABC News poll in April. Support for capital punishment has sagged in recent years, but it remains strong in a situation like this, where the offense is so outrageous, the process so open, the defense so robust and guilt beyond dispute.

Even so, Tsarnaev is in no danger of imminent death. He is one of more than 60 federal prisoners under sentence of execution in a country where only three federal death sentences have been carried out in the past half-century. A dozen years have passed since the last one .

The situation is similar in state courts and prisons. Despite extraordinary efforts by the courts and enormous expense to taxpayers, the modern death penalty remains slow, costly and uncertain. For the overwhelming majority of condemned prisoners, the final step—that last short march with the strap-down team—will never be taken. The relative few who are killed continue to be selected by a mostly random cull. Tsarnaev aside, the tide is turning on capital punishment in the U.S., as previously supportive judges, lawmakers and politicians come out against it.

Change is not coming quickly or easily. Americans have stuck with grim determination to the idea of the ultimate penalty even as other Western democracies have turned against it. On this issue, our peer group is not Britain and France; it’s Iran and China. Most U.S. states authorize the death penalty, although few of them actually use it. We value tolerance and diversity—but certain outrages we will not put up with. Maybe it’s the teenage terrorist who plants a bomb near an 8-year-old boy. Maybe it’s a failed neuroscientist who turns a Colorado movie theater into an abattoir. We like to think we know them when we see them. Half a century of inconclusive legal wrangling over the process for choosing the worst of the worst says otherwise.

On May 27, the conservative Nebraska state legislature abolished the death penalty in that state despite a veto attempt by Governor Pete Ricketts. A parallel bill passed the Delaware state senate in March and picked up the endorsement of Governor Jack Markell, formerly a supporter of the ultimate sanction. Only a single vote in a House committee kept the bill bottled up, and supporters vowed to keep pressing the issue.

In February, Markell’s neighboring governor, Tom Wolf of Pennsylvania, declared an open-ended moratorium on executions. That officially idles the fifth largest death row in America. The largest, in California, is also at a standstill while a federal appeals court weighs the question of whether long delays and infrequent executions render the penalty unconstitutional.

Even in Texas, which leads the nation in executions since 1976 (when the U.S. Supreme Court approved the practice after a brief moratorium), the wheels are coming off the bandwagon. From a peak of 40 executions in 2000, the Lone Star State put 10 prisoners to death last year and seven so far in 2015. According to the state’s Department of Corrections , the number of new death sentences imposed by Texas courts this year is precisely zero. There, as elsewhere, prosecutors, judges and jurors are concluding that the modern death penalty is a failed experiment.

The shift is more pragmatic than moral, as Americans realize that our balky system of state-sanctioned killing simply isn’t fixable. As a leader of the Georgia Republican Party, attorney David J. Burge, recently put it , “Capital punishment runs counter to core conservative principles of life, fiscal responsibility and limited government. The reality is that capital punishment is nothing more than an expensive, wasteful and risky government program.”

This unmistakable trend dates back to the turn of the century. The number of inmates put to death in 2014 was the fewest in 20 years, while the number of new death sentences imposed by U.S. courts—72—was the fewest in modern American history, according to data collected by the Death Penalty Information Center . Only one state, Missouri, has accelerated its rate of executions during that period, but even in the Show Me State, the number of new sentences has plunged.

Thirty-two states allow capital punishment for the most heinous crimes. And yet in most of the country, the penalty is now hollow. Since the start of 2014, all but two of the nation’s 49 executions have been carried out by just five states: Texas, Missouri, Florida, Oklahoma and Georgia.

For the first time in the nearly 30 years that I have been studying and writing about the death penalty, the end of this troubled system is creeping into view.

And I’ll give you five reasons why.

Reason 1: Despite decades of effort, we’re not getting better at it. In Arizona on July 23, prison officials needed nearly two hours to complete the execution of double murderer Joseph Wood. That was not an aberration. In April 2014, Oklahoma authorities spent some 40 minutes trying to kill Clayton Lockett before he finally died of a heart attack. Our long search for the perfect mode of killing—quiet, tidy and superficially humane—has brought us to this: rooms full of witnesses shifting miserably in their seats as unconscious men writhe and snort and gasp while strapped to gurneys.

Lethal injection was intended to be a superior alternative to electrocution, gassing or hanging, all of which are known to go wrong in gruesome ways. But when pharmaceutical companies began refusing to provide their drugs for deadly use and stories of botched injections became commonplace, the same legal qualms that had turned courts against the earlier methods were raised about lethal injections.

Alex Kozinski, the conservative chief judge of the federal Ninth Circuit Court of Appeals, recently wrote that Americans must either give up on capital punishment or embrace its difficult, brutal nature. Rather than pretend that execution is a sort of medical procedure involving heart monitors and IV lines—a charade that actual medical professionals refuse to be part of—we should use firing squads or the guillotine. (Utah, which abandoned execution by firing squad in 2004, restored the option in April. No other U.S. jurisdiction has used rifles for an execution in more than 50 years.)

“Of course, it does raise the question of whether we are really comfortable with having a death penalty that literally sheds blood,” Kozinski allowed in an interview with the Los Angeles Times . “The thing about the drugs is that it’s a mask.”

The legal machinery of capital punishment—the endless process of appeals and reviews—is equally miserable to ponder.

Consider this: Last year, Florida executed Askari Muhammad , a man known as Thomas Knight when he was sent to death row in 1975 after kidnapping, robbing and murdering a couple from Miami Beach. Five years later he stabbed a prison guard to death with a sharpened spoon.

To detail all the reasons it took nearly 39 years to execute Knight/Muhammad would require a chapter of a book, not a paragraph of an essay. Suffice it to say, a legal system that requires half a lifetime to conclude the case of a proven lethal recidivist is not a well-functioning operation.

Nor is that case unusual. In Florida alone, three other men who arrived on death row in 1975 are still there, marking their 40-year anniversaries—part of a total death-row population in that state of 394 . (In those 40 years, Florida has carried out 90 executions . At that rate, the Sunshine State would need about 175 years to clear out its death row.)

Of the 14 inmates executed so far this year in the U.S., five spent from 20 to 30 years on death row, five more languished from 15 to 19 years, and not one spent less than a decade awaiting execution. On May 24, Nebraska death-row inmate Michael Ryan died of cancer, nearly 30 years after he was sentenced to be executed by the state.

State and federal courts are so backlogged with capital cases that they can never catch up. Roughly half of California’s 750 condemned inmates have not even begun their appeals because they are waiting for the state’s underfunded defense bureaucracy to give them a lawyer.

Moving faster creates its own problems. The risks involved in trying to speed executions are apparent in the growing list of innocent and likely innocent death-row prisoners set free— more than 150 since 1975 . In Ohio, Wiley Bridgeman walked free 39 years after he was sentenced to death when the key witness at his trial—a 12-year-old boy at the time—admitted that he invented his story to try to help the police. In general, scientific advances have undermined confidence in the reliability of eyewitness testimony and exposed flaws in the use of hair and fiber evidence. DNA analysis, meanwhile, has offered concrete proof that the criminal justice system can go disastrously wrong, even in major felony cases. In North Carolina last year, two men sentenced to death as teenagers were released after DNA evidence proved they weren’t guilty. The exoneration came after 30 years in prison.

Incompetent investigators, using discredited science, sent two men to death row in Texas for alleged arson murders. One of them, Ernest Willis, was freed in 2004 after his attorneys commissioned a review by an expert in fire science, who concluded that neither blaze was caused by the suspects.

But the findings came too late for the other man, Cameron Todd Willingham, who was executed that same year . In this instance, and perhaps in others , Texas may have killed an innocent man.

Now crime rates have fallen back to levels unseen since the placid early 1960s. In New York City alone, there are roughly 1,900 fewer murders per year now compared with the goriest days of the early 1990s . Although pockets of violence remain in cities, the vast majority of Americans are much safer today than a generation ago.

Gallup has measured the result: support for capital punishment has hovered in recent years at just above 60%, lower than at any time since 1972. It’s a big number, but not as big as before. Shifting public opinion makes it easier for judges and legislators to train a skeptical eye on a dysfunctional system of punishment. Former Virginia attorney general Mark Earley supported the death penalty while presiding over the execution of 36 inmates from 1989 to 2001. In March he published an essay calling for an end to capital punishment. He had “come to the conclusion that the death penalty is based on a false utopian premise. That false premise is that we have had, do have, and will have 100% accuracy in death penalty convictions and executions.”

The reduced political pressure has made it possible for six states to abolish the death penalty since 2007; Nebraska makes it seven. In a number of other state capitals, the energy is also moving in that direction. New Hampshire’s legislature came within a single vote of abolition in 2014, while governors of Washington, Oregon and Colorado have indicated that they will not allow executions.

That has changed. Improvements in staffing and technology have given us so-called supermax facilities where life-without-parole sentences can be served in relative safety. The fact that this alternative to capital punishment is now a practical possibility has fed the shift in public opinion, for most people realize that being locked in a solitary cell forever is a terrible punishment. Indeed, some argue it is a fate worse than death . Whatever deterrent capital punishment provides can likely be matched by the threat of permanent lockup.

The second historical purpose has been discredited by time: the death penalty was a powerful tool of white supremacy. The antebellum South was haunted by the possibility of slave uprisings; capital punishment was used to tamp down resistance. You can see it in the early Virginia law that made it a capital offense for slaves to administer medicine—it might be poison! Or the early Georgia statute that invoked the death penalty if a slave struck his master hard enough to leave a bruise.

The late Watt Espy, an eccentric Alabaman whose passion for this topic produced the most complete record ever made of executions in the U.S., documented nearly 15,000 sanctioned killings from 1608 to 1972. The racial disparity is arresting. In a mostly white America, significantly more blacks than whites were put to death. Whites were almost never executed for crimes—even murder—involving black victims. But blacks were so frequently executed for sexual assault that newspapers could report that a prisoner was hanged or electrocuted “for the usual crime” and everyone would know what that meant.

Some analysts still find vestiges of racial bias in the modern system, but the overt racism of the old order is now plainly unconstitutional. If there is a bias propping up today’s death penalty, it is one of class rather than race . The best defense lawyers cost a lot of money. As a favorite saying on death row goes: Those without the capital get the punishment.

This leaves only the question of justice, which is a visceral and compelling force. It’s the force that has kept the death penalty going as long as it has. Capital punishment is an expression of the principle that certain extreme boundaries cannot be crossed—that some crimes are so terrible that death is the only punishment sufficient to balance the scales . It shows how seriously we take our laws and the moral traditions underlying them.

Anti-death-penalty thinkers have tried to knock down this idea for hundreds of years. Perhaps you’ve seen the bumper sticker that goes , “Why do we kill people who kill people to show that killing people is wrong?” But they haven’t had much success in winning the philosophical battle. Momentum is moving away from the death penalty not because it offends the sense of justice but because it is a system that costs too much and delivers too little.

Which brings us to …

The American death-penalty system is so slow, inconsistent and inefficient that it costs far more than the life-without-parole alternative. This fact may puzzle many Americans. But think of it this way: as the country recently saw in the Tsarnaev case, a death sentence involves not one trial but two. The first procedure decides guilt or innocence, and the second weighs the proper punishment. This doubly burdensome process is followed by strict appellate review that consumes hundreds if not thousands of billable hours on the part of lawyers, clerks, investigators and judges. Compared with the cost of a complicated lawsuit, the cost of incarceration is minimal.

When I examined the cost of Florida’s death penalty many years ago, I concluded that seeing a death sentence through to execution costs at least six times as much as a life sentence. A more recent study by a federal commission pegged the difference in the costs of the trials at eight times as much. Duke University professor Philip J. Cook studied North Carolina’s system and concluded that the Tar Heel State could save $11 million per year by abolishing the death penalty. California’s system incurs excess costs estimated at some $200 million per year . From Kansas to Maryland , Tennessee to Pennsylvania , studies have all reached similar conclusions.

Rising pressure to cut wasteful spending will cause more and more legislators and law-enforcement officials to look hard at these findings—especially in a climate of low crime rates and secure prisons. It’s happening even in Texas, where Liberty County prosecutor Stephen Taylor told a reporter last year that cost is a factor in deciding whether to pursue the death penalty. “You have to be very responsible in selecting where you want to spend your money,” he said . And if Texas has reached that point, imagine what is going through the minds of governors, lawmakers and prosecutors in states that rarely see an execution—which is the vast majority.

Reason 5. The Justices. Few issues have caused the U.S. Supreme Court more pain over the past half-century than the death penalty. The subject is never far from the court’s docket. This year’s biggest capital case involves the possible risks in a lethal-injection formula. And yet the many opinions issued since 1972 form such a tangled thicket that the late Justice Harry Blackmun ultimately dismissed the entire enterprise as “ tinker[ing] with the machinery of death .” Several other Justices have turned against the process after leaving the court, including two of the three architects of the system, Lewis Powell and John Paul Stevens.

Amid the confusion, one principle has remained clear: death is different. The main reason the court abolished the old death penalty was that there were no standards for deciding who would live or die. Even among murderers, the chance of being executed was as random as being struck by lightning, as Justice Potter Stewart observed . The modern death penalty was designed to guide prosecutors, judges and juries toward the criminals most deserving of death.

But after four decades of tinkering, capital punishment is still a matter of occasional lightning bolts. And judges are taking notice. Last July, a federal judge in Southern California—a Republican appointee named Cormac J. Carney— issued an explosive ruling that the death penalty in America’s largest state has become unconstitutionally random. History is on his side.

In 1972, when the Supreme Court found the death penalty to be “arbitrary and capricious,” there were about 600 prisoners condemned to die in the U.S., and fewer than 100 had been executed in the previous 10 years. Today in California, the numbers are far worse: 750 death-row inmates, three executions in the past 10 years. “For the rest, the dysfunctional administration of California’s death-penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution,” Carney argued. “Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Such a sentence, the judge concluded, violates the Eighth Amendment ban on cruel and unusual punishments.

It is a long way from one district judge’s ruling to a decision by the Supreme Court. But Carney’s reasoning follows a path already blazed in dissenting opinions by Justice Stevens when he was still a member of the high court and Justice Stephen Breyer. They too have noticed that a system that produces these bizarre and unpredictable results makes a mockery of the legal system at a cost of billions of dollars.

Carney’s decision is currently under review by the Ninth Circuit Court of Appeals. It is one more sign that the end of this failed experiment is beginning to emerge. One by one, states will abandon their rarely used death penalty. At the same time, other judges will follow Carney’s lead. Here’s Judge Tom Price of the Texas Court of Criminal Appeals—a red-state Republican member of what is probably the toughest court in the land when it comes to the death penalty: “Having spent the last 40 years as a judge for the state of Texas, of which the last 18 years have been as a judge on this court, I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished.”

Actions of the legislatures, lower-court judges and governors can all be read by the Supreme Court as signs of “evolving standards of decency” in society, a doctrine dating from 1958 that has been used by the court to ban executions of juveniles, mentally retarded inmates and rapists who did not kill their victims. No step or statement is decisive in itself. But when five or more of the Justices decide the time has come to put an end to this fiasco, they will use these signs of “evolving standards” as their justification to end capital punishment for good.

Critics complain that the idea of “ evolving standards ” is a mere pretense to wrap personal preferences in a scarf of constitutional law. But more than half a century after the concept was coined, “evolving standards” is deeply woven into Supreme Court tradition. The Justices all know that the modern death penalty is a failure. When they finally decide to get rid of it, “evolving standards” is how they will do it.

The facts are irrefutable, and the logic is clear. Exhausted by so many years of trying to prop up this broken system, the court will one day throw in the towel.

David Von Drehle, a TIME editor-at-large, is the author of Among the Lowest of the Dead, an award-winning history of the modern death penalty.

This story was originally published in the June 8, 2015, issue of TIME.

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Alabama Supreme Court authorizes third nitrogen gas execution

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MONTGOMERY, Ala. (AP) — A third person is set to be executed by nitrogen gas, Alabama authorized Wednesday, months after becoming the first state to put a person to death with the previously untested method.

The Alabama Supreme Court granted the state attorney general’s request to authorize the execution of Carey Dale Grayson, one of four teenagers convicted in the 1994 killing of Vickie Deblieux in Jefferson County. Alabama Gov. Kay Ivey will set Grayson’s execution date.

In January, the state put Kenneth Smith to death in the nation’s first nitrogen gas execution. A second execution using the protocol is set for Sept. 26 for Alan Eugene Miller . Miller recently reached a lawsuit settlement with the state over the execution method.

Alabama and attorneys for people in prison continue to present opposing views of what happened during the first execution using nitrogen gas. Smith shook for several minutes on the death chamber gurney as he was put to death Jan. 25. While Alabama Attorney General Steve Marshall described the execution as “textbook,” lawyers for inmates said it was the antithesis of the state’s prediction that nitrogen would provide a quick and humane death.

Grayson has an ongoing lawsuit seeking to block the state from using the same protocol that was used to execute Smith. His attorneys argued the method causes unconstitutional levels of pain and that Smith showed signs of “conscious suffocation.”

“We are disappointed that the Alabama Supreme Court has authorized the setting of an execution date before the federal courts have had a chance to review Mr. Grayson’s challenge to the constitutionality of Alabama’s current nitrogen protocol, and before Mr. Grayson has had an opportunity to review any changes to the protocol brought about by the recent Alan Miller settlement,” Matt Schulz, an assistant federal defender who is representing Grayson, wrote in an email.

Earlier this month, Miller reached a “confidential settlement agreement” with the state to end his lawsuit over the specifics of the state’s nitrogen gas protocol. A spokesperson for the Alabama Department of Corrections declined to comment on whether the state is making procedural changes for Miller.

The state has asked a judge to dismiss Grayson’s lawsuit, arguing that the execution method is constitutional and that his claims are speculative.

Marshall’s office did not immediately comment on the court setting the execution date.

Grayson was charged with torturing and killing Deblieux, 37, on Feb. 21, 1994. Prosecutors said Deblieux was hitchhiking from Tennessee to her mother’s home in Louisiana when four teenagers, including Grayson, offered her a ride. Prosecutors said they took her to a wooded area, attacked and beat her and threw her off a cliff. The teens later mutilated her body, prosecutors said.

Grayson, Kenny Loggins and Trace Duncan were all convicted and sentenced to death. However, Loggins and Duncan, who were under 18 at the time of the crime, had their death sentences set aside after the U.S. Supreme Court in 2005 banned the execution of offenders who were younger than 18 at the time of the crime. Grayson was 19.

The fourth teenager was sentenced to life imprisonment.

Schulz noted that Alabama, in a 2004 Supreme Court brief opposing an age cutoff for the death penalty, wrote that it would be nonsensical to allow Grayson to be executed but not the codefendants whom the state described as “plainly are every bit as culpable — if not more so — in Vickie’s death and mutilation.” The state was seeking to allow all the teens to be executed.

Lethal injection remains Alabama’s primary execution method but gives inmates the option to choose the electric chair or nitrogen gas. Grayson had previously selected nitrogen gas as his preferred execution method, but that was before the state had developed a process to use it.

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South Carolina prosecutors plan to seek death penalty in trial of man accused of killing 5

SPARTANBURG, S.C. (AP) — South Carolina prosecutors will seek the death penalty against a man arrested nearly two years ago and accused of fatally shooting five people .

The 7th Circuit Solicitor’s Office filed a motion last week expressing its plans to seek capital punishment for 26-year-old James Douglas Drayton, news outlets reported. The solicitor’s office declined to comment about the decision. No trial date has been set.

Drayton was arrested in October 2022 and charged with five counts of murder and five counts of possession of a weapon during a violent crime. The victims were found in a home in Inman, about 13 miles (21 kilometers) northwest of Spartanburg. Four were dead at the scene: Thomas Ellis Anderson, 37; James Derek Baldwin, 49; Mark Allen Hewitt, 59; and Adam Daniel Morley, 32. The fifth person shot, Roman Christean Megael Rocha, 19, died later at a hospital.

Drayton’s attorney, public defender Michael David Morin, declined to comment, citing the ongoing case.

At the time of Drayton's arrest, Spartanburg County Sheriff Chuck Wright said that Drayton had confessed to the killings, telling police that he was high on methamphetamine and hadn’t slept for four days. Drayton handed over the gun he said he used to kill everyone in the home where he was also staying, a place people went frequently to use drugs, Wright said.

Drayton was arrested in Georgia after a crash during a police chase. He was driving a car taken from the Inman home, Wright said in 2022. Deputies in Burke County, Georgia — about 145 miles (233 kilometers) away — said they chased Drayton after he tried to rob a convenience store at gunpoint and kidnap an employee.

South Carolina, one of 27 states that allow the death penalty, hasn’t performed an execution since 2011. A recent ruling by the South Carolina Supreme Court upholding the use of the firing squad, lethal injection or the electric chair, opened the door to restart executions in the state.

United States Supreme Court

Public Statements by Justices on the Death Penalty

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The following is an informal collection of statements by present or former Supreme Court Justices on the death penalty taken from interviews or essays, rather than from Court opinions.

Justice stephen breyer (retired) on the death penalty.

In his new book, The Court and the World: American Law and the New Global Realities , and in media interviews accompanying its release, Supreme Court Justice Stephen Breyer discusses the relationship between American laws and those of other countries and his dissent in Glossip v. Gross , which questioned the constitutionality of the death penalty. In an interview with The National Law Journal , Breyer summarized the core reasons underlying his Glossip dissent: “You know, sometimes people make mistakes, [executing] the wrong person. It is arbitrary. There is lots of evidence on that. Justice Potter Stewart said it was like being hit by lightning, whether the person is actually executed. If carried out, a death sentence, on average takes place now 18 years after it is imposed. The number of people who are executed has shrunk dramatically. They are centered in a very small number of counties in the United States. Bottom line is, let’s go into the issue. It is time to go into it again.” In his book, Breyer argues that the laws and practices of foreign countries are relevant to and might be particularly informative on questions regarding the Eighth Amendment. He notes that international opinion has influenced decisions to end the death penalty for juveniles and for crimes that do not result in death. His Glossip opinion also mentioned international practices - that only 22 countries carried out executions in 2013 and that the U.S. was one of only eight that executed more than 10 people - among the reasons American capital punishment may be an unconstitutionally “cruel and unusual punishment.” That phrase, he says in his book, is itself of foreign origin. “It uses the word ‘unusual,’” Breyer says, “and the founders didn’t say unusual in what context.” Foreign law and practices, he argues, should form part of that context.

(R. Teague Beckwith, “ Supreme Court Justice Argues World Opinion Matters on the Death Penalty ,” TIME, September 14, 2015; A. Liptak, “ Justice Breyer Sees Value in a Global View of Law ,” The New York Times, September 12, 2015; T. Mauro, “ Q&A: Justice Breyer’s Interview With The NLJ ,” The National Law Journal, September 12, 2015).

Other Earlier Statements:

“You have to understand that each death penalty case usually comes before the court three times. The average defendant is on death row for 15 years,” said Breyer. He continued, “The recanting of witnesses is often raised. That is not enough. It is necessary to have proof that someone else has had to pull the trigger. There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts. We are presented with roughly the same arguments, just at the last minute.”

Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since “it is mostly imposed by state law, rarely federal law. Only the legislature can abolish the death penalty,” said Breyer. Citing the example of French President Mitterand, Breyer utilized his bully pulpit to urge the executive and legislative branches to abolish the death penalty in America. “Europe is against the death penalty now,” he said. “In 1980, 2/3 of the French electorate supported the death penalty. Still Mitterand, in a television interview, came out against the death penalty. He immediately went up in the polls because he took a position of conscience. The same thing could happen here.” He doubts that abolition of the death penalty will happen. “Politicians were in the popular club in high school. They hold their finger up to the wind to measure popularity,” opined Breyer. “Judges are terrible politicians.”

( Business Insider , October 21, 2011.)

Justice Ruth Bader Ginsburg (Deceased) on the Death Penalty

Justice ginsburg’s statement during washington council of lawyers’ forum at george washington university.

Justice Ginsburg was asked about the future of the death penalty towards the end of a hour-hour public forum at George Washington University on July 24, 2017. She answered:

“The only comment I would make is that the incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty.

“And not even whole states, but particular areas of states. It may depend on who’s the district attorney.

“We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

(Washington Council of Lawyers, 2017 Summer Forum with Justice Ruth Bader Ginsburg , July 24, 2017; A. Liptak, On Justice Ginsburg’s Summer Docket: Blunt Talk on Big Cases , New York Times, August 1, 2017; K. Blakinger, Ruth Bader Ginsburg predicts possible end to capital punishment , Houston Chronicle, August 2, 2017. Photo credit, Screenshot from the Washington Council of Lawyers YouTube video of the summer forum.)

Justice Ginsburg’s comments during a talk at Stanford University

Justice Ginsburg fielded a question about the death penalty in connection with her February 6, 2017 appearance at the annual Rathburn Lecture on a Meaningful Life at Stanford University. She responded: “If I were queen, there would be no death penalty.”

(L. Krieger, Supreme Court Justice Ginsburg talks Congress, death penalty and “a meaningful life” at Stanford , The Mercury News, February 6, 2017; A. de Vogue, Ginsburg talks partisan rancor, Electoral College and kale , CNN, February 7, 2017.)

Ginsburg Interview with the National Law Journal (excerpt)

NLJ: Towards the end of their tenure on the court, justices Harry Blackmun and John Paul Stevens, and even later than that, Justice Lewis Powell Jr., decided they could no longer support the constitutionality of the death penalty. As we see increased problems with lethal injection, what are your thoughts now about the penalty?

GINSBURG: I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. If I had been on the court for Furman [ v. Georgia , 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.

NLJ: After more than two decades on the court, what types of cases still vex or challenge you?

GINSBURG: Death penalty. For one thing, our jurisprudence is dense and then we have these contributions from Congress like AEDPA [Antiterrorism and Effective Death Penalty Act]. Because we had no death penalty in the District of Columbia, my first year here, I asked my clerks to write a memo so I could become familiar with where the court was on the death penalty. It was dense then and it has gotten only worse.

(M. Coyle, National Law Journa l, Aug. 22, 2014).

Justice Ginsburg interview at Duke Law School after end of 2014 Court Term

In an interview at Duke Law School, Justice Ginsburg reflected on the Court’s 2014 court term and discussed Glossip v. Gross , in which she joined Justice Stephen Breyer in a dissent that questioned the constitutionality of the death penalty.

Ginsburg said she had waited to take such a stance on the death penalty because past justices, “took themselves out of the running,” when the did so, leaving, “no room for them to be persuasive with the other justices.” She reiterated many of the key points from the dissent, saying, “I think that [Breyer] pointed to evidence that has grown in quantity and in quality. He started out by pointing out that there were a hundred people who had been totally exonerated of the capital crime with which they were charged … so one thing is the mistakes that are possible in this system. The other is the quality of representation. Another is … yes there was racial disparity but even more geographical disparity. Most states in the union where the death penalty is theoretically on the books don’t have executions.”

Justice Ginsburg also noted the growing isolation of the death penalty. “[L]ast year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states. So the idea that luck of the draw, if you happened to commit a crime in one county in Louisiana, the chances that you would get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances that you would get the death penalty are almost nil. So that was another one of the considerations that had become clear as the years went on.”

(S. Lachman and A. Alman, “ Ruth Bader Ginsburg Reflects On A Polarizing Term One Month Out ,” The Huffington Post, July 29, 2015.)

Ginsburg Supports Abolition

If I had my way there would be no death penalty. But the death penalty for now is the law, and I could say ‘Well, I won’t participate in those cases,’ but then I can’t be an influence. Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict.

( Reuters , February 5, 2013.)

Supreme Court Justice Ruth Bader Ginsburg, speaking to law students in San Francisco, at UC Hastings College of the Law:

The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.

“I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that’s not likely to be an opportunity for me,” Ginsburg said. She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder. Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977. Ginsburg described review of impending executions as “a dreadful part of the business,” and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate. (San Francisco Chronicle, September 16, 2011)

Justice Ginsburg Supports Moratorium

U.S. Supreme Court Justice Ruth Bader Ginsburg recently voiced her support for a moratorium on the death penalty in Maryland and criticized the inadequate funding available for those who represent poor people. “People who are well represented at trial do not get the death penalty,” said Ginsburg. “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” (Associated Press, April 10, 2001)

Justice Anthony Kennedy on the Death Penalty (Retired)

During oral arguments at the Supreme Court one year apart in 2014 and 2015, Justice Kennedy asked counsel questions about death-row conditions of confinement that appeared unrelated to the issues raised in the cases:

In Hall v. Florida , 134 S. Ct. 1986 (2014) (No. 12-10882), transcript of March 3, 2014 argument available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-10882…

JUSTICE KENNEDY: [T]he last ten people Florida has executed have spent an average of 24.9 years on death row. Do you think that that is consistent with the purposes of the death penalty, and … is it consistent with sound administration of the justice system?

MR. WINSOR [counsel for the State of Florida]: Well, I certainly think it’s consistent with the Constitution, and I think that there are obvious …

JUSTICE KENNEDY: That wasn’t my question.

MR. WINSOR: Oh, I’m sorry, I apologize.

JUSTICE KENNEDY: Is it consistent with … the purposes that the death penalty is designed to serve, and is it consistent with an orderly administration of justice?

MR. WINSOR: It’s consistent with the …

JUSTICE KENNEDY: Go ahead.

MR. WINSOR: It is consistent with the purposes of the death penalty certainly.

JUSTICE SCALIA: General Winsor, maybe you should ask us … that question, inasmuch … as most of the delay has been because of rules that we have imposed.

JUSTICE KENNEDY: Well, let me … ask this. Of course most of the delay is at the hands of the defendant. In this case it was 5 years before there was a hearing on the on the …Atkins question. Has the Attorney General of Florida *992 suggested to the legislature any … measures, any provisions, any statutes, to expedite the consideration of these cases.

MR. WINSOR: Your Honor, there was a statute enacted last session, last spring, that is—it’s called the Timely Justice Act, that addresses a number of issues that you raise, and it’s presently being challenged in front of the Florida Supreme Court… .

In Davis v. Ayala , 135 S. Ct. 2187 (2015) (No. 131428), from transcript of March 3, 2015 argument:

JUSTICE KENNEDY: This doesn’t relate to the issues you’ve been arguing. This crime was, what, 30 years ago and the trial 26 years ago?

MR. DAIN [counsel for death row inmate Hector Ayala]: 1996, yeah, very close.

JUSTICE KENNEDY: Has he spent time in solitary confinement, and, if so, how much?

MR. DAIN: He has spent his entire time in what’s called administrative segregation. When I visit him, I visit him through glass and wire bars.

JUSTICE KENNEDY: Is that a single cell?

MR. DAIN: It is a single cell. They’re all single cells. Well, San Quentin is on the most it’s on Heaven’s land in Marin County. It’s a 150-year-old prison and their administrative segregation is single cells, a very old system, very small, and — and —

JUSTICE KENNEDY: Is it the same thing as solitary confinement?

MR. DAIN: No, it’s 23 hours out of the day, that probably is the same. They generally administrative segregation you’re not allowed in the general yard anymore. But you are allowed an hour a day —

JUSTICE KENNEDY: One hour. MR. DAIN: — of activity.

Justice Sandra Day O’Connor on the Death Penalty (Deceased)

Justice o’connor stresses importance of international law.

During a speech hosted by the Southern Center for International Studies in Atlanta, Supreme Court Justice Sandra Day O’Connor stressed the importance of international law for American courts and the need for the United States to create a more favorable impression abroad. She cited recent Supreme Court cases, including the Court’s ruling to ban the execution of those with mental retardation, that illustrate the increased willingness of U.S. courts to take international law into account. “I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.” O’Connor noted that doing so “may not only enrich our own country’s decisions, I think it may create that all important good impression.”

(World Net Daily, October 31, 2003)

Justice O’Connor Again Voices Concern About Innocence

At the Nebraska State Bar Association’s annual meeting, U.S. Supreme Court Justice Sandra Day O’Connor expressed her concern about the possibility of executing the innocent and the need for better representation of indigent defendants. O’Connor stated, “More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.” She added that that would continue to happen unless indigent defendants were represented by qualified lawyers. Earlier this year, O’Connor expressed similar concerns about executing the innocent while speaking to the Minnesota Women Lawyers’ Group. (Nebraska StatePaper.com, Oct. 19, 2001)

Justice O’Connor Questions Death Penalty

In a speech on July 2, U.S. Supreme Court Justice Sandra Day O’Connor said there were “serious questions” about whether the death penalty is fairly administerd in the U.S. Noting the number of death row inmates who have been exonerated in recent years, O’ Connor stated, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” She also addressed the need for quality representation in capital cases, stating that such representation has too often been inadequate. “Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used,” she said. In speaking to the Minnesota Women Lawyer’s group, O’Connor also expressed her concern about the rising numbers of inmates on death row and of executions since her appointment to the Court. Noting that Minnesota does not have the death penalty, O’Connor said, “You must breathe a big sigh of relief every day.” ( Associated Press , July 2, 2001).

"More often than we want to recognize, some innocent defendants have been convicted and sentenced to death." — U.S. Supreme Court Justice Sandra Day O'Connor

Justice Antonin Scalia (Deceased) on the Death Penalty

Justice Scalia said he “wouldn’t be surprised” if the U.S. Supreme Court found the death penalty unconstitutional (Commercial Appeal, Sept. 22, 2015, speech at Rhodes College). He repeated those remarks at an appearance at the University of Minnesota Law School on October 20, 2015 (Associated Press, “Scalia: ‘ Wouldn’t Surprise Me’ If Death Penalty Struck Down ,” October 20, 2015).

Antonin Scalia - God’s Justice and Ours

In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted—and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run–of–the–mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

(Pew Forum on Religion and Public Life at the University of Chicago Divinity School, January 2002)

Here is a retrospective on Justice Scalia and the Death Penalty .

Justice John Paul Stevens (Deceased) on the Death Penalty

Video-taped comments by Justice Stevens to the California Attorneys for Criminal Justice Seminar, Feb. 20, 2016. Justice Stevens called for the abolition of the death penalty because of the risks of executing the innocent, its high costs relative to its questionable benefits, and the lengthy time defendants spend on death row. He suggested change could come from the Supreme Court on constitutional grounds, from state legislatures, and from governors granting commutations.

Comments by Justice Stevens at George Washington University, May 19, 2015.

Previous Comments:

On Innocence

In a discussion at the University of Florida Law School, former U.S. Supreme Court Justice John Paul Stevens said that recent research reveals that Texas almost certainly executed an innocent man in 1989. Stevens said:

“Within the last year, Jim Liebman, who’s a professor at the Columbia Law School and was a former law clerk of mine, has written a book…called The Wrong Carlos … He has demonstrated, I think, beyond a shadow of a doubt that there is a Texas case in which they executed the wrong defendant, and that the person they executed did not in fact commit the crime for which he was punished. And I think it’s a sufficient argument against the death penalty…that society should not take the risk that that might happen again, because it’s intolerable to think that our government, for really not very powerful reasons, runs the risk of executing innocent people.”

Prof. Liebman’s research showed that Carlos DeLuna’s case involved faulty eyewitness testimony and police failure to investigate an alternative suspect.

(T. Nashrulla, “ Former Supreme Court Justice Confirms Texas Once Executed An Innocent Man ,” Buzzfeed News, January 26, 2015; video of John Paul Stevens’ discussion, quote begins at 57:00).

Justice Stevens on the Death Penalty

I really think that in regard to the death penalty … I’m not sure that the democratic process won’t provide the answers sooner than the court does, because I do think there is a significantly growing appreciation of the basic imbalance in cost-per-person benefit analysis. And the application of the death penalty does a lot of harm, and does really very little good.

( Daily Caller , April 22, 2012.)

Justice Stevens on Arbitrariness and the Death Penalty

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.

( New York Review of Books , April 5, 2012.)

Transcript: My Interview With Retired Justice John Paul Stevens (excerpt) By George Stephanopoulos

I sat down with retired Supreme Court Justice John Paul Stevens Wednesday in Washington, D.C. Stevens is out with a “Five Chiefs,” a memoir that chronicles his six decades on the court and his relationships with five different chief justices during that time. Here is the full transcript of the interview. GEORGE STEPHANOPOULOS: Justice Stevens, thanks for doing this. JOHN PAUL STEVENS: Well, I’m happy to happy to meet you. … GEORGE STEPHANOPOULOS: You of course, became an outspoken opponent of the death penalty in your time on the court. How did you evolve? Can you summarize how your own views evolved?

JOHN PAUL STEVENS: About the death penalty? Well, of course, it’s a long story, because I’ve been involved in that issue for so long. But there also you have to keep in mind, there are always two part to the question. One is, “When do you think it’s constitutional to have the death penalty?” And the other question is whether one thinks it’s a wise thing to do. And on the second question, whether your opponent is a matter of policy I’ve never felt that it was a particularly wise method of punishment. And several of the members of the court, I can say specifically Warren Burger and Harry Blackmun, although they voted to uphold the penalty consistently early on, they personally did not think it made sense.

But my own thinking on the issue, on the constitutional issue evolved over the years, after our first decision in 1975, in the first year that I came in the court, in which at which time I thought the court was adopting procedures and rules that would confine the imposition of the death penalty into a very narrow set of cases. And they took special pains to have fair procedures.

And over the years, the– I was disappointed to find they expanded the category of cases, rather dramatically later on, in ways that I don’t think Potter Stewart would have agreed with– who was sort of the principle author of our join opinion on– and they also have relaxed procedures in ways that actually give the prosecutor advantages in capital cases that I don’t think he has in ordinary criminal cases. And so that seemed to me there’s a change in the general atmosphere around capital cases that occurred over the years and made me–

GEORGE STEPHANOPOULOS: It seems like there may be another evolution now in the country that the case of Troy Davis, executed last week. It appeared with the protests around that that the country may be heading towards a tipping point in another direction, against the death penalty. Is that what you see?

JOHN PAUL STEVENS: I don’t know. I’m not a very good judge of public reaction on something like that. But I think there always has been a significant group that felt that the penalty really wasn’t worth it and caused more harm than good.

( ABC News , Sep 29, 2011)

Retired Justice John Paul Stevens on His ‘Wrong’ Vote on Texas Death Penalty Case By George Stephanopoulos

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty. “I really think that I’ve thought over a lot of cases I’ve written over the years. And I really wouldn’t want to do any one of them over…With one exception,” he told me. “My vote in the Texas death case. And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.

The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

In a recent Republican presidential debate there was a burst of applause after the moderator mentioned the 234 executions that occurred under Gov. Rick Perry. Stevens said he was “disappointed” when he saw that reaction.

“Maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good. I don’t happen to share that view,” he said. “But there are obvious people who do. And, of course, being hard on crime has been– always– is politically popular, let’s put it that way.”

( ABC News , Sep 28, 2011)

An Open Mind on A Changed Court Interview with Nina Totenberg, NPR

In an October 2010 interview on National Public Radio, then newly-retired Supreme Court Justice John Paul Stevens said he particularly regretted one vote during his 35 years on the high court—his 1976 vote to uphold the death penalty in Gregg v. Georgia . Stevens remarked, “I thought at the time … that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate.” But, he added, over the years, “the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense.” Justice Stevens also said that the court has made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”

The interview was conducted by NPR correspondent Nina Totenberg. She wrote more about Stevens’s views: “The court, he notes, has become more permissive in allowing prosecutors to object to seating jurors who have qualms about the death penalty. The result is that instead of getting a random sample of jurors, jury panels are more supportive of the death penalty. In addition, the court now allows the relatives of crime victims to testify during the penalty phase of a capital trial. These so-called victim impact statements were once ruled too incendiary to be permissible, but four years later, a more conservative court reversed the decision. All of this, says Justice Stevens, has changed the nature of the death penalty as he and the court envisioned it in the 1970s.”

( NPR ,” October 4, 2010).

Supreme Court Justice Stevens Says U.S. “Better Off” Without Capital Punishment

During a “fireside chat” with fellow Supreme Court Justice Stephen Breyer and hundreds of lawyers and judges who practice in federal courts in Illinois, Indiana and Wisconsin,

Supreme Court Justice John Paul Stevens stated, “I think this country would be much better off if we did not have capital punishment.” Stevens noted that he believes the death penalty is constitutional, adding, “But I really think it’s a very unfortunate part of our judicial system and I would feel much, much better if more states would really consider whether they think the benefits outweigh the very serious potential injustice, because in these cases the emotions are very, very high on both sides and to have stakes as high as you do in these cases, there is a special potential for error. We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” The “fireside chat” was part of the 7th Circuit Bar Association dinner in Chicago. Justice Stevens and Justices Ruth Bader Ginsberg and Sandra Day O’Connor have all voiced concerns about the death penalty in recent years, but this is perhaps one the most pronounced statements against capital punishment made by a Supreme Court justice since the late Harry Blackmun, who wrote in 1994, “From this day forward, I no longer shall tinker with the machinery of death.”

(Chicago Sun Times, May 12, 2004).

Justice Stevens Addresses Death Penalty for Juveniles

U.S. Supreme Court Justice John Paul Stevens addressed the issue of juveniles and the death penalty while speaking at the 9th Circuit’s Judicial Conference on July 18, 2002. Justice Stevens, who wrote the majority opinion in Atkins v. Virginia abolishing the death penalty for those with mental retardation, predicted that juveniles would be the “next area for debate.” The United States is “out of step with the views of most countries in the Western world,” according to Stevens. Stevens did not anticipate that the Supreme Court would lead the debate and cautioned: “That is more likely to be addressed in the legislative forum than in the judicial forum.” Stevens also said that the public was growing more skeptical of the death penalty’s deterrent effect and more aware of the possibility that innocent people might be executed. (Washington Post, Aug. 5, 2002)

"I think this country would be much better off if we did not have capital punishment." — U.S. Supreme Court Justice John Paul Stevens

Justice Lewis Powell (Deceased) on the Death Penalty

Justice Lewpowellis Powell was appointed to the Court by President Nixon in 1972. He voted to uphold the constitutionality of the death penalty in 1972 and 1976. He later stated in an interview to his biographer:

“I have come to think that capital punishment should be abolished.” He stated that he would have changed his vote in capital cases, particularly McCleskey v. Kemp (racial bias in the death penalty) and that the death penalty “serves no useful purpose.”

(J. Jeffries, “Justice Lewis F. Powell, Jr.” 451-52, 1994.)

Justice Harry Blackmun (Deceased) on the Death Penalty

In an interview in 1993 on the ABC News program “Nightline,” Justice Harry Blackmun said he was reconsidering his views on the death penalty and was “not sure” that courts could administer it fairly. Ultimately, Blackmun expressed his views in a dissent in a capital case, Callins v. Collins (1994), in which he concluded that “the death penalty experiment has failed.”

(L. Greenhouse, “Death Penalty Is Renounced By Blackmun,” N.Y. Times, Feb. 23, 1994).

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I Put Him on Death Row. He Shouldn’t Die.

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‘I Am So Sorry’: Meeting the Man I Put on Death Row

Admitting a mistake can be very hard. But how would it feel if the mistake helped put a man on death row?

That’s the burden the Rev. Brian Wharton has been carrying for more than two decades. He played a crucial role in the prosecution of Robert Roberson, who was found guilty in 2003 of killing his 2-year-old daughter and sentenced to death.

But as the Opinion video above explores, Wharton came to regret his involvement and the outcome of the case. He recently visited Texas death row, along with a crew from Opinion Video, and met with Roberson. It was the first time the men had spoken with each other since before Roberson’s conviction.

The film is the first in a three-part series that we’re publishing over the next few weeks, each taking a critical view of the death penalty by exposing flaws in cases and questioning whether retributive justice can truly provide closure. The videos are in keeping with The Times’s longstanding position that the punishment is full of bias and error , morally abhorrent and futile in deterring crime and should be abolished .

The series lands at a hopeful but still-challenging time in the movement to get rid of capital punishment in the United States.

The death penalty has been falling out of favor with officials and the broader public alike over the past three decades, in part owing to what the Death Penalty Information Center called “society’s greater understanding about the fallibility of our legal system and its inability to protect innocent people from execution.” Twenty-nine states have now either abolished the death penalty or have paused executions by executive action, up from 12 in 1999.

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Trump's second-term agenda: deportations, trade wars, NATO rethink

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As 2024 Democratic National Convention kicks off, here are 4 things to watch

While Vice President Kamala Harris and her running-mate Minnesota Gov. Tim Walz already won the party’s nomination in an early virtual roll-call, this year’s Democratic National Convention is an opportunity for the party to rally around its new presidential ticket.

Convention festivities will take place over the course of a week, and will culminate in Harris’ ceremonial acceptance speech Thursday night.

This year’s convention is already historic. President Joe Biden dropped out of the race last month with 107 days to go until the election. Kamala Harris will be the first Black woman and first Asian American to lead a major party’s presidential ticket.

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Minyon Moore, the DNC chair, wrote an op-ed for theGrio that Harris has “worked day and night” to earn her endorsement from President Joe Biden.

Moore, a former White House political director under Bill Clinton and a consultant for Hillary Clinton’s 2016 presidential campaign, underscored the significance of Harris’ nomination.

“We’re standing on the precipice of something truly historic — electing the first woman president of the United States and showing the world what is possible when we come together as a country,” she wrote.

Here are four things to be on the lookout for as the convention gets underway.

1. What case will Harris make to voters?

President Biden And Vice President Harris Appear Together At Drug Price Reduction Event.

Vice President Harris speaks at a 2024 campaign event on prescription drug prices, on august 15, 2024. Photo by Andrew Leyden/NurPhoto via Getty Images

The DNC will be one of the first major opportunities for Harris to re-introduce herself to the country, make her policy platform clear, and to talk up her bona fides. This week, the vice president unveiled an economic policy plan that focused on expanding child tax credits, banning price gouging and lowering prescription drug costs.

The convention is a place for Harris to build on her vision for presidency, despite the fact that the Democratic Party platform still names Biden as the nominee.

Last month, PBS News heard from several voters in swing states who took part in focus groups organized by Republican strategist Sarah Longwell. Some felt they didn’t know enough about Harris’ record, despite being unenthusiastic about voting for her opponent, former President Donald Trump. Wendy, a voter from Pennsylvania who voted for Donald Trump in 2016 and Joe Biden in 2020, felt Kamala Harris was still unknown. “She hasn’t been very visible for most of Biden’s presidency,” she said. “She was elected vice president, and then she just kind of disappeared.”

2. Bright lights, big names

Each night, leading names in politics will take the DNC stage.

Biden will kick off the weeklong festivities Monday. Former Secretary of State Hillary Clinton is also set to speak on the opening night of the convention. Former presidents Barack Obama and Bill Clinton will address delegates on Tuesday and Wednesday, respectively.

Overall, the convention is set to be a more star-studded affair than its Republican counterpart, with smatterings of daytime and evening events with celebrity guests. Actor and comedian Julia Louis-Dreyfus will host a panel with female Democratic governors. Dreyfus played the fictional and sardonic Vice President Selina Meyer on HBO’s “Veep,” and social media timelines have been flooded with the life-imitates-art memes since Harris formally secured the Democratic nomination in early August.

Singer-songwriter John Legend will headline a party hosted by billionaire Illinois Gov. J.B. Pritzker on Wednesday.

3. Protests in the background

The anger at the Biden administration over its handling of the Israel-Hamas war is expected to play a role at this year’s DNC. There will be 30 “uncommitted” delegates present, the result of coordinated protest votes in primary elections this year.

Cook County, Illinois, which includes Chicago, is home to the largest Palestinian population in the U.S., and more than 150 coalition groups, comprising thousands of demonstrators, are expected to protest the war in Gaza.

The “March on the DNC” will take place on various days throughout the week of the convention. Pro-Palestinian groups will be joined by ally groups protesting for LGBTQ+ rights, access to reproductive care, among other demands.

Deanna Othman, a member of American Muslims for Palestine in Chicago, which is organizing one of the protests in the city, told PBS News that “the Democratic party has been complicit and needs to change policy.” She hopes that planned demonstrations will get national attention to demand more than “empty promises” from lawmakers.

“Vice President Harris not being Donald Trump is not enough to get votes,” she added. “The Democratic party has been in charge, and bears the responsibility of what has befallen the people of Gaza.”

4. The influencer convention

In a DNC first, the entire week will be streamed using vertical video on TikTok, Instagram and YouTube.

By broadcasting in a format native to social media, the committee hopes to attract younger viewers who primarily get their news through these apps. Organizers have also credentialed more than 200 social media content creators to this year’s convention, offering them dedicated workspace and the opportunity to go live directly from the convention floor.

Several popular TikTokers like Johnny Palmadessa , Elizabeth Booker Houston , and Jeremy Jacobowitz are all expected to be in attendance.

The convention committee will also be rolling out a “blue carpet” for surrogates to walk and be interviewed by online creators. Comedian Matt Friend, best known for his Trump impression , will be Snapchat’s “blue carpet” correspondent.

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Fact-checking the latest campaign trail claims from Trump and Harris

Politics Aug 15

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The Death Penalty as an Unconstitutional Deprivation of Life and the
Ethical Issues and the Death Penalty Essay Example
Death penalty argument essay outline. The Death Penalty Argument
Should The Death Penalty Be Abolished?
ELC 091 Article DP
Death Penalty Should be Abolished Essay Example

COMMENTS

The Case Against the Death Penalty
The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings - especially when it kills with premeditation and ceremony, in the name of the ...
‌The End of the Death Penalty?
Feb 14, 2023. By Elaine McArdle. More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared ...
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 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 ...
Should the Death Penalty Be Abolished?
In the July Opinion essay "The Death Penalty Can Ensure 'Justice Is Being Done,'" Jeffrey A. Rosen, then acting deputy attorney general, makes a legal case for capital punishment:
The Eighth Amendment, the Death Penalty, and the Supreme Court
That shows that in 1789 we had the death penalty and we cannot say it is unconstitutional today, because it was not unconstitutional then. That suggests the possibility that this Court might unwind the whole "evolving standards of decency" doctrine on which the justices have relied for 50 years or more in understanding constitutional limits ...
Is the Death Penalty Unconstitutional?
Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is "obvious" that it "is impossible to hold unconstitutional that which the ...
Vol. 111, No. 1 Online Essay
At most, the references to the death penalty in the Fifth Amendment may reflect a Founding Era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional.
Gregg v. Georgia and Limits on Death Penalty
Justices William Brennan and Thurgood Marshall adhered to the view that the death penalty is per se unconstitutional. E.g., Coker, 433 U.S. at 600; ... Jump to essay-1 Collectors of judicial put downs of colleagues should note Justice William Rehnquist's characterization of the many expressions of faults in the system and their correction as ...
The Inhumanity of the Death Penalty
The death penalty—like all state actions—exists within a context constructed by humans, not gods. Humans tend to have biases, and the systems we construct often reflect those biases.
The Death Penalty Can Ensure 'Justice Is Being Done'
As John Duncan was dying of cancer in 2018, he asked family members to promise they would witness the execution on his behalf. On July 17, they did. "Finally," they said in a statement ...
Top 10 Pro & Con Arguments
Top 10 Pro & Con Arguments. 1. Legality. The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment's use).
Overview of Death Penalty
The Supreme Court's 1972 decision in Furman v. Georgia, 1. finding constitutional deficiencies in the manner in which the death penalty was applied, but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. The ruling effectively constitutionalized capital sentencing law and involved ...
On this day, Supreme Court temporarily finds death penalty unconstitutional
Georgia, that the application of the death penalty in three cases was unconstitutional. The Court would clarify that ruling in a later case in 1976, putting the death penalty back on the books under different circumstances. The debate over whether the death penalty constitutes cruel and unusual punishment dates back to the Founding Fathers.
The Death Penalty Under the Constitution
The Eighth Amendment of the Constitution forbids cruel and unusual punishment, but this does not categorically prohibit the death penalty. The federal government still can impose capital punishment, and some states have kept these laws despite a growing trend toward abolition at the state level. The Due Process Clause of the Fourteenth ...
Declaring the Death Penalty Unconstitutional (From Criminal Law
declaring the death penalty unconstitutional (from criminal law - essays on criminal law selected from the pages of the harvard law review, 1972 - see ncj08880) ncj number. 10687. ... in which the death penalty was declared unconstitutional because of inequalities in sentencing. this argument calls for the complete and unqualified abolition of ...
Arguments for and Against the Death Penalty
For every 8.2 people executed in the United States in the modern era of the death penalty, one person on death row has been exonerated. State-By-State States With and Without the Death Penalty
The Death Penalty: Questions and Answers
Download a PDF version of Death Penalty Questions and Answers >> Since our nation's founding, the government -- colonial, federal, and state -- has punished a varying percentage of arbitrarily-selected murders with the ultimate sanction: death. More than 14,000 people have been legally executed since colonial times, most of them in the early 20th Century. By the 1930s, as many as 150 people ...
Constitutional Validity of Death Penalty: Samhitha & P. Vasishtan
Capital Punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. [2] There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an instinctive feeling that the death penalty must deter, at least to some extent.
History of the Death Penalty
In the essay, Beccaria theorized that there was no justification for the state's taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. ... (433 U.S. 584) that the death penalty is an unconstitutional punishment for the rape ...
Is The Death Penalty Constitutional Or Unconstitutional
Virginia and Roper v. Simmons can be used to show the how the death penalty is unconstitutional in America. The constitutionality of the death penalty has been argued in various court cases. The eighth amendment states that any cruel and unusual punishment is forbidden. The first case to deal with this topic was Gregg v.
Is the Death Penalty a Cruel and Unusual Punishment?
The petitioners' goal was to have Congress abolish the death penalty and for America to take its place as a moral leader of the world. Petition to Abolish the Death Penalty, 1900. From the Records of the U.S. House of Representatives. National Archives Identifier 25466029. Direct students to read the opening paragraphs of the petition.
Capital Punishment: The end of the death penalty
The modern death penalty was designed to guide prosecutors, judges and juries toward the criminals most deserving of death. But after four decades of tinkering, capital punishment is still a ...
Essay Part 3 Rough Draft (1) (pdf)
Young 5 death penalty actually does not fall under the idea of cruel and unusual punishment as stated in the Eighth Amendment in the Constitution. The second point in support of capital punishment is that studies have found a deterrent effect of crime because of death sentences. David Muhlhausen says, "A 2003 study by Emory University researchers of data from more than 3,000 counties from 1977 ...
The evolution of Harris' stances on key issues, from the death penalty
WASHINGTON (AP) — As California's attorney general, Kamala Harris successfully defended the death penalty in court, despite her past crusade against it. As a new senator, she proposed to ...
Alabama Supreme Court authorizes third nitrogen gas execution
The fourth teenager was sentenced to life imprisonment. Schulz noted that Alabama, in a 2004 Supreme Court brief opposing an age cutoff for the death penalty, wrote that it would be nonsensical to allow Grayson to be executed but not the codefendants whom the state described as "plainly are every bit as culpable — if not more so — in Vickie's death and mutilation."
South Carolina prosecutors plan to seek death penalty in trial of man
SPARTANBURG, S.C. (AP) — South Carolina prosecutors will seek the death penalty against a man arrested nearly two years ago and accused of fatally shooting five people. The 7th Circuit Solicitor ...
Public Statements by Justices on the Death Penalty
The following is an informal collection of statements by present or former Supreme Court Justices on the death penalty taken from interviews or essays, rather than from Court opinions. ... Justice Scalia said he "wouldn't be surprised" if the U.S. Supreme Court found the death penalty unconstitutional (Commercial Appeal, Sept. 22, 2015, ...
Opinion
The series lands at a hopeful but still-challenging time in the movement to get rid of capital punishment in the United States. The death penalty has been falling out of favor with officials and ...
Trump's second-term agenda: deportations, trade wars, NATO rethink
Trump says he would institute the death penalty for human traffickers and drug dealers. He says he does not believe federal statistics that show violent crime dropping in U.S. cities.
As 2024 Democratic National Convention kicks off, here are 4 ...
The evolution of Harris' stances on key issues, from the death penalty to marijuana By Brian Slodysko, Michael R. Blood, Alan Suderman, Associated Press Latest round of Gaza cease-fire talks ...