Capital Punishment

The notion that the death penalty constituted cruel and unusual punishment would seem integral to the abolitionist argument, but the constitutionality of capital punishment was virtually unchallenged until late in the twentieth century. For many years, the Eighth Amendment's prohibition against cruel and unusual punishment was associated with torture and barbarous punishments, not capital punishment. In 1967, a nationwide moratorium on capital punishment gave the courts time examine its constitutionality. Finally, the U.S. Supreme Court in Furman v. Georgia (1972) found that certain capital punishment laws did constitute cruel and unusual punishment because of the arbitrary way they were applied.

The Fifth and the Eighth Amendments hold the key to the constitutionality debate. The Eighth Amendment, the most frequently cited in arguments against the death penalty, prohibits cruel and unusual punishment. The Fifth Amendment provides that no person shall be "deprived of life . . . without due process of law." It also provides that no person "shall be held to answer for a capital...crime" without indictment by a grand jury, and prohibits a person from being "twice put in jeopardy of life" for the same offense. This language, in addition to the limited record of debates on the subject while writing the Bill of Rights and its common use at the time, strongly suggests the framers intended capital punishment to be lawful when due process rights were respected. Indeed, the Eighth Amendment, at the time of passage, was understood to only prohibit such disturbing forms of capital punishment as crucifixion or burning at the stake. Chief Justice Warren Burger's dissent in Furman, in essence supporting use of capital punishment, was based upon his reading of the lenient language in the Fifth Amendment.

Furman was not the death knell for capital punishment laws, however. Although an unusual victory for abolitionists, the ruling did not declare all capital punishment unconstitutional,per se. Several states quickly drafted new laws correcting the deficiencies highlighted by Furman. The new laws were quickly put to the test. In 1976 the Court abruptly ended the execution moratorium by upholding some of the new capital punishment legislation. The state statute upheld in Gregg v. Georgia became a model for later death penalty laws. As described in Gregg, a typical death penalty should include a two-part trial. The first part determines guilt, the second is a sentencing phase. During sentencing the jury weighs mitigating and aggravating factors to determine whether the death penalty is appropriate, or whether a lesser sentence, commonly life imprisonment, should be imposed. Florida adopted a three-part system in which an advisory jury makes recommendations to a judge, who then decides the punishment after weighing the mitigating and aggravating factors.

Although executions were restricted only to murder convictions after 1964, rape accounted for a large number of executions between 1930 and the 1960s. In 1977, the Court ruled out the death penalty for rape by finding that the punishment was too excessive for the crime and therefore unconstitutional. By the close of the twentieth century, capital punishment was constitutionally appropriate only for criminal homicide. The death penalty was even determined unconstitutional for an individual involved in a felony crime during which a murder is committed by someone else. In other rulings, the Court also ruled that the Eighth Amendment does not prohibit execution of a mentally retarded person, although the retardation is a mitigating factor for the jury to consider. Moreover, the Court also upheld a death sentence for a juvenile who was at least 16 at the time of the crime.