GIVEN HIM A FAIR TRIAL, THEN HANG HIM:
THE SUPREME COURT’S MODERN DEATH PENALTY
JURISPRUDENCE
*
MARK S. HURWITZ
In Furman v. Georgia (1972), the Supreme Court ruled the arbitrary and capricious nature
of the death penalty rendered it an unconstitutional cruel and unusual punishment under the
Eighth and Fourteenth Amendments. Then, in
Gregg v. Georgia (1976), the Court held
that Georgia’s revised death penalty statute employing separate guilt and sentencing phases
passed constitutional muster under
Furman. With these cases in which some answers were
provided but the door was opened to a host of other questions, the Court introduced the mod-
ern era of its death penalty jurisprudence. Since then, the Court has addressed whether
crimes other than murder are subject to the death penalty, attempted to balance aggravating
and mitigating circumstances, and considered whether the death penalty can be applied to
minors and mentally deficient individuals. Further, the Court has addressed questions of
race, claims of actual innocence, and whether judges or juries determine death sentences.
These cases collectively illustrate the Court’s struggle to come up with consistent standards
for capital punishment. The continuing legacy of
Furman and Gregg, then, is that future
decisions will likely not settle the issue of the death penalty, though it is highly probable the
Supreme Court will continue to inject itself into the debate over the death penalty in the
United States.
urisprudential changes with respect to criminal justice that had begun with the
Warren Court reached the area of the death penalty when, in 1972, the Supreme
Court decided
Furman v. Georgia. By a 5-4 vote, the Court held in a brief per curiam
decision that the death penalty as imposed and administered—the arbitrary and ran-
dom nature of the death penalty, and the resulting inequalities in its imposition—
constituted an unconstitutional cruel and unusual punishment under the Eighth
Amendment. However,
Furman was far from a simple or concise decision, as every
justice wrote a separate concurring or dissenting opinion based on disparate rationales
and covering hundreds of pages, and all four of President Nixon’s recently appointed,
so-called law-and-order justices dissented. Notwithstanding its complexity and con-
troversy, this decision put the death penalty on hold while states attempted to reme-
dy its deficiencies of which the Court majority complained.
The Supreme Court soon revisited capital punishment when it reviewed a death
penalty law passed in the aftermath of
Furman. In Gregg v. Georgia (1976), the Court
held, 7-2, that Georgia had appropriately remedied its death penalty procedure and,
applying the rules from
Furman and Gregg to four companion cases, upheld certain
THE JUSTICE SYSTEM JOURNAL, VOL. 29, NUMBER 3 (2008)
J
* I thank Todd Curry and Elizabeth Wheat for their research assistance.
244 THE JUSTICE SYSTEM JOURNAL
other death penalty statutes. In so doing, the Court provided that states could now
execute certain defendants, so long as the types of crimes eligible for the death penal-
ty were narrowed and suitable safeguards were present in sentencing procedures in
death penalty cases. Since then, the Supreme Court has issued many other decisions
on the death penalty, including the very recent cases on the means of execution and
the imposition of the death penalty for crimes other than murder. This article pro-
vides a broad overview of the Supreme Court’s death penalty jurisprudence in light of
Furman and Gregg.
THE EIGHTH AMENDMENT BEFORE FURMAN AND GREGG
While some jurists and scholars contend the death penalty is an unconstitutional
cruel and unusual punishment per se under the Eighth Amendment, the Constitution
elsewhere appears to acknowledge the death penalty. The Fifth and Fourteenth
Amendments forbid depriving any person of
life, liberty, or property without due
process of law. The Fifth Amendment also refers to persons accused of
capital crimes
as well as those in jeopardy of life and limb, thus implying the constitutionality of the
death penalty under certain conditions.
The Supreme Court interpreted the Eighth Amendment in a number of cases
before
Furman and Gregg. One issue with which it dealt related to the meaning of
cruel and unusual punishments. In
Trop v. Dulles (1958), which concerned a congres-
sional statute requiring loss of citizenship for military desertion during times of war, the
Supreme Court discussed the history and derivation of the Eighth Amendment. In his
plurality opinion, Chief Justice Warren, specifically noting that the prohibition on
cruel and unusual punishments was adapted from the English Declaration of Rights of
1688 and the Magna Carta (
Trop, at 100), indicated that because of its dynamic nature
the Eighth Amendment “must draw its meaning from the evolving standards of decen-
cy that mark the progress of a maturing society” (
Trop, at 101). The Court according-
ly held that under then-current standards of decency, stripping one’s citizenship as a
criminal penalty violated the Eighth Amendment’s proscription. Chief Justice Warren
also discussed the constitutionality of the death penalty, saying: “Whatever the argu-
ments may be against capital punishment, both on moral grounds and in terms of
accomplishing the purposes of punishment—and they are forceful—the death penalty
has been employed thr
oughout our history, and, in a day when it is still widely accept-
ed, it cannot be said to violate the constitutional concept of cr
uelty” (
T
rop
, at 99).
T
r
op
’
s “evolving standar
ds of decency” would find its way into the Cour
t’
s death
penalty cases. Justice Br
ennan’
s
Fur
man
concur
r
ence r
elied on that language when
he maintained that the death penalty was unconstitutional per se because the Eighth
Amendment “pr
ohibits the infliction of uncivilized and inhuman punishments”
(
Fur
man
, at 270). However
, in his
Fur
man
dissent, Justice Powell noted the ir
ony of
Justice Br
ennan employing Chief Justice W
ar
ren’s rationale in
T
r
op
while r
eaching
the opposite conclusion. Justice Stewar
t also used the “evolving standar
ds of decen
-
cy” language to dispute Justice Br
ennan’
s position. Based on the r
esponse in the states
GIVE HIM A FAIR TRIAL, THEN HANG HIM 245
after Furman largely endorsing reinstatement of the death penalty, he asserted, “it is
now evident that a large proportion of American society continues to regard it as an
appropriate and necessary criminal sanction” (
Gregg, at 179).
The second issue decided before
Furman involved incorporation of the Bill of
Rights into the Fourteenth Amendment—in particular, whether states were required
to comply with the Eighth Amendment’s prohibitions. The Supreme Court decided
this in the affirmative in
Robinson v. California (1962), where the Court held that a
state statute criminalizing addiction to narcotics constituted an Eighth Amendment
violation because the status of a defendant, not his conduct, had been criminalized.
The Court thus supplanted
Louisiana ex rel. Francis v. Resweber (1947), where it had
assumed but did not directly decide that states were restrained by the cruel-and-
unusual-punishment clause.
Robinson also superseded earlier cases such as In re
Kemmler
(1890), which specifically held that the Eighth Amendment was not incor-
porated in the Fourteenth Amendment.
Kemmler also had held that torture or lin-
gering death constitutes a cruel punishment, but had provided the death penalty itself
did not violate the Eighth Amendment. The Supreme Court in
Furman subsequent-
ly accepted the
Robinson rationale for incorporation of the Eighth Amendment in
death penalty cases.
Thus, by the time the Supreme Court decided
Furman and Gregg in the 1970s,
it had resolved that evolving standards of decency would guide its death penalty rul-
ings and that the states would be bound by the Eighth Amendment in death penalty
cases. It now was time for the Supreme Court to address the death penalty in the
United States head on.
FURMAN: THE SUPREME COURT STAYS THE DEATH PENALTY
Furman v. Georgia involved three petitioners convicted of capital crimes under state
law. Two cases stemmed from Georgia, one involving a petitioner convicted of mur-
der, the other of rape, while a third petitioner had been convicted of rape in Texas.
While the
Furman per curiam opinion held these death sentences violated the Eighth
and Fourteenth Amendments, the Court provided no indication why the death
penalty was unconstitutional. An analysis of the concurring and dissenting opinions
would be critical to understanding the Court’s reasoning.
While the five justices in the majority believed the death penalties in Geor
gia
and T
exas were unconstitutional, only Justices Brennan and Marshall deemed the
death penalty unconstitutional under all cir
cumstances. Justice Br
ennan asser
ted
that the arbitrar
y natur
e of the death penalty made it constitutionally imper
missible
under the Eighth Amendment. Justice Marshall, after voluminously discussing the
histor
y of the death penalty in the United States and England, expr
essed the view
that this criminal sanction ser
ved none of its stated purposes of “r
etribution, deter
-
r
ence, pr
evention of r
epetitive criminal acts, encouragement of guilty pleas and con-
fessions, eugenics, and economy” (
Fur
man
, at 342). He also ar
gued that the death
penalty was imposed discriminatorily against blacks and men.
246 THE JUSTICE SYSTEM JOURNAL
The other justices in the majority, all holdovers from the Warren Court, did not
believe the death penalty unconstitutional per se. Justice Douglas contended in his
concurrence that the death penalty violated equal protection, as it had been imposed
“arbitrarily and discriminatorily” because it was administered so rarely and most often
against the poor and minorities (
Furman, at 249). Justices Stewart and White large-
ly agreed with Justice Douglas. Although Justice Stewart was not convinced that
racial discrimination had been proven regarding the death penalty, he was persuaded
that “this unique penalty [was] so wantonly and so freakishly imposed” that it violat-
ed the Eighth Amendment (
Furman, at 310). And Justice White determined that the
social end of deterrence once used to justify the death penalty no longer sufficed, in
large part because it was infrequently administered.
The theme running through all the dissenting opinions was that legislatures, not
courts, should decide the parameters of the death penalty. Basing his decision on both
the intent of the Framers of the Eighth Amendment and evolving standards of decen-
cy, Chief Justice Burger, joined by Justices Blackmun, Powell, and Rehnquist, conclud-
ed that the death penalty was not a cruel or unusual punishment in a constitutional
sense. Accordingly, legislatures must determine whether death is an appropriate crim-
inal sanction, with limited exceptions for “punishments that are so cruel and inhu-
mane as to violate society’s standards of civilized conduct” (
Furman, at 397). Justice
Powell, also joined by all the other dissenters, asserted that stare decisis dictated a rul-
ing in favor of the death penalty, and that “[n]o Justice of the Court, until today, has
dissented from this consistent reading of the Constitution” (
Furman, at 428). Justice
Rehnquist, again joined by all of the other dissenters, similarly argued for judicial
restraint, and he also made an argument against incorporation of the Bill of Rights:
“The Due Process and Equal Protection Clauses of the Fourteenth Amendment were
never intended to destroy the States’ power to govern themselves” (
Furman, at 470).
Justice Blackmun considered his dissent “personal” comments, and none of the
other dissenters joined in those comments (
Furman, at 405). As he put it, “Although
personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as
a matter of history, of law, or of constitutional pronouncement” (
Furman, at 414).
Though morally opposed to the death penalty, Justice Blackmun said that the decision
whether or not to use it was for the nonjudicial branches of government. Interestingly,
Justice Blackmun eventually was to change his mind on the constitutionality of the
death penalty
, stating in a dissent fr
om denial of cer
tiorari, “Ther
e is little doubt now
that
Fur
man’s
essential holding was cor
rect” (
Callins v
. Collins
, 1994, at 1147).
In sum, while all five justices in the
Fur
man
majority believed Geor
gia’s and
T
exas’s death penalty laws were unconstitutional, thus providing a judicial stay of its
imposition acr
oss the nation, only two deemed the death penalty unconstitutional
per se. The four dissenters clearly envisioned the death penalty as a viable, constitu
-
tional option. It also appear
ed that the three justices in the majority who did not
view the death penalty as per se unconstitutional might be persuaded that a mor
e
carefully drafted and administered death penalty statute would pass constitutional
GIVE HIM A FAIR TRIAL, THEN HANG HIM 247
muster. As a consequence, the death penalty would live to see another day in court.
That day occurred just four years later.
GREGG: THE DEATH PENALTY IS REINSTATED
The reaction to Furman was swift and vehement. Over two-thirds of the states and
Congress amended their respective penal codes in response to
Furman to include cap-
ital punishment for some crimes. Notwithstanding this manifest evidence that the
political process favored the death penalty, these legislative revisions yielded to the
mandates of
Furman by including new procedures attempting to rectify the penalty’s
arbitrariness. The constitutionality of those new procedural safeguards would be at
issue in the cases the Court decided in 1976.
Gregg v. Georgia involved Georgia’s recently amended death penalty statute
that called for bifurcated trials in capital cases, with separate guilt and sentencing
phases. The petitioner had been found guilty of murder and armed robbery by the
jury, which then returned a sentence of death in the trial’s penalty phase. The
Supreme Court ruled that Georgia’s law comported with
Furman. Like Furman, how-
ever,
Gregg did not represent a simple outcome. Justice Stewart, with Justices Powell
and Stevens, announced the judgment of the Court and expressed the view that
Georgia’s new death penalty statute was not unconstitutional. This plurality opinion
first stated that the death penalty is not, nor has it ever been, unconstitutional per se
and that the legislative r
eaction since
Fur
man
demonstrated that capital punishment
is not contrary to societal values, a viewpoint supported by Supreme Court precedent.
Justice Stewart continued by asserting that Georgia’s bifurcated process provided suf-
ficient confidence that death sentences would not be handed down arbitrarily or
capriciously. He found of particular import the automatic appeal of death sentences
to the Georgia Supreme Court. Accordingly, the new statutory procedures did not
fall prey to the problems the Court had found in
Furman.
Justice White, along with Chief Justice Burger and Justice Rehnquist, concurred
in the Court’s judgment. Automatic review by the state supreme court also was crit-
ical to these justices. Justice White would have permitted greater use of the death
penalty than would Justice Stewart (Palmer, 1979), a divergence that apparently led
Justice White to concur only in the judgment and not in Justice Stewart’s opinion.
While Justice Blackmun also concurred in the judgment, he did so for himself in a
two-line opinion in which he relied on his and the other dissenting opinions in
Furman. Justices Brennan and Marshall dissented in Gregg, each reiterating his view
that the death penalty was unconstitutional under all circumstances.
Based on the standards set by
Furman and Gregg, on the same day it released
Gregg, the Court upheld the death sentences in cases from Florida and Texas (Proffitt
v. Florida
, 1976; Jurek v. Texas, 1976), because their statutory procedures were similar
to those upheld in
Gregg. However, the Court reversed the death sentences in cases
from North Carolina and Louisiana (
Woodson v. North Carolina, 1976; Roberts v.
Louisiana
, 1976), as those states’ procedures provided inadequate standards for the
248 THE JUSTICE SYSTEM JOURNAL
sentencer to determine whether death should be imposed on any particular criminal
defendant.
In
Gregg, the Supreme Court allowed the death penalty to be reinstated and car-
ried out, so long as the procedures employed in sentencing someone convicted of a
capital crime do not allow for arbitrary or capricious results. In large part, this stan-
dard is satisfied by a bifurcated trial, especially one where the judge or jury in the sen-
tencing phase weighs both aggravating and mitigating factors in determining whether
or not the death penalty is warranted. The outcome in
Gregg was accordingly differ-
ent from that in
Furman because three justices representing the Furman majority,
including Justices Stewart, White, and Stevens (who had since replaced Justice
Douglas) joined the four
Furman dissenters in ratifying Georgia’s amended death
penalty statute.
THE SUPREME COURT’S POST-FURMAN/GREGG DECISIONS
The Supreme Court’s decisions in Furman and Gregg did not settle all issues regard-
ing the death penalty, as defendants continued to argue the constitutionality of their
death sentences in subsequent cases before the Court. Indeed,
Furman and Gregg
opened the door to a host of other Supreme Court decisions on the death penalty,
many of which are seminal in nature. These can be generally categorized as questions
regarding 1) the scope of possible application of the death penalty, 2) to whom the
penalty can be applied, and 3) miscellaneous other issues. While a majority of the
Court has never accepted the view that capital punishment is unconstitutional per se,
so the death penalty continues to be constitutional, some specific arguments against
imposition of the death penalty have succeeded before the Court.
Crimes Other Than Murder. As Furman indicated, crimes other than murder have
traditionally carried a potential death sentence, although no defendant has been exe-
cuted in the United States for a crime other than murder in since the 1960s. In
Coker
v. Georgia
(1977), the Supreme Court held, 7-2, that the penalty of death for convic-
tion of rape violated the Eighth Amendment, which precludes not just cruel and
unusual punishments but also punishments that are excessive. Justice White’s decision
for the Court contended that the sentence of death was “grossly disproportionate” for
the rape of an adult (sixteen-year-old) woman. Justice Powell, concurring only in the
judgment, stated that rape with aggravating factors could justify a death sentence, and
Chief Justice Burger and Justice Rehnquist, dissenting, claimed that rape constituted a
major crime that could be punished by death. The Supreme Court would revisit this
issue in the recently decided case,
Kennedy v. Louisiana (2008), holding unconstitu-
tional a death sentence for the rape of an eight-year-old girl (see below).
Aggravating and Mitigating Factors. The Supreme Court has struggled over the
years with respect to admission of aggravating and mitigating evidence when impos-
ing death sentences, which is also related to when capital punishment can be applied.
Given that the Court in
Furman and Gregg had required narrowing of the range of
offenses to which the death penalty was applicable, it is important to look at a major
GIVE HIM A FAIR TRIAL, THEN HANG HIM 249
way the states have grappled with this mandate—by specifying aggravating factors
that would death-qualify an offense. For instance, the death penalty statute upheld
in
Gregg specified that a death sentence could not be imposed unless the jury found
beyond a reasonable doubt the presence of at least one of ten codified aggravating cir-
cumstances, one of which provided: “The offense of murder, rape, armed robbery, or
kidnapping was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to the victim” (
Gregg,
at 165, fn. 9). The Court believed that a clear finding of aggravating factors during
the sentencing phase was necessary “to narrow the class of murderers subject to capi-
tal punishment” (
Gregg, at 196), so as to ensure against the arbitrary nature of the
death penalty the Court discussed in
Furman.
The states’ use of aggravating factors is in tension with the Court’s insistence
that juries be able to consider a broad range of mitigating evidence. In
Gregg, the
Court introduced this issue by quoting the Model Penal Code: “[I]t is within the
realm of possibility to point to the main circumstances of aggravation and of mitiga-
tion that should be weighed
and weighed against each other when they are presented in
a concrete case” (
Gregg, at 193, emphasis in original). Whether it is possible in fact
to consider both mitigating and aggravating factors has been debated by the justices
in the post-
Furman/Gregg era. For instance, in Lockett v. Ohio (1978), the Supreme
Court held that the “Eighth and Fourteenth Amendments require that the sentencer
. . . not be precluded from considering, as a mitigating factor, any aspect of a defen-
dant’s character or record and any of the circumstances of the offense that the defen-
dant proffers as a basis for a sentence less than death” (
Lockett, at 604). Chief Justice
Burger, writing the plurality opinion, stated that individualization of sentences was
constitutionally necessary in capital cases, and because the Ohio law did not allow for
admission of mitigating factors during the sentencing phase of bifurcated trials, the
death sentence in this case was reversed.
The Supreme Court soon sustained this rationale when it held in
Eddings v.
Oklahoma
(1982) that states may not prevent the admission of mitigating evidence in
capital cases, whether that preclusion is imposed by statute or common law. Justice
Powell, writing for the 5-4 majority (with Chief Justice Burger in dissent), held that
excluding mitigating evidence from the sentencing authority’s consideration was con-
stitutionally impr
oper
. Oklahoma law specified a number of aggravating factors to be
consider
ed in sentencing, including whether the crime was “especially heinous, atr
o
-
cious, or cr
uel” (
Eddings, at 106), but no mitigating factors wer
e similarly codified.
Because the defendant’
s death sentence was imposed without consideration of his age
(sixteen when the crime was committed) or his tr
oubled upbringing, both clear mit-
igating factors accor
ding to the Court, the case was reversed and remanded so that
aggravating
and mitigating cir
cumstances could be considered in determining
whether a death sentence was appr
opriate.
The issue of weighing both mitigating and aggravating cir
cumstances would
arise again in
McCleskey v. Kemp (1987), where the Court upheld Georgia’s death
penalty law that required the jury to find at least one aggravating factor as defined by
the statute, in part because the law also permitted the defendant to introduce any
mitigating evidence in his favor. While this case particularly pertained to racial
issues, the inclusion of mitigating and aggravating factors was a key justification
behind the Court’s decision.
There is an inherent conflict between the mandate to accommodate both aggra-
vating factors—to ensure the death penalty is imposed only in the most egregious
cases—and mitigating factors—to allow for individualized sentencing determina-
tions. In his concurrence in
Walton v. Arizona (1990), Justice Scalia addressed this
state of affairs when he said, “To acknowledge that there perhaps is an inherent ten-
sion between this line of cases [on mitigation] and the line stemming from
Furman
[on aggravating factors] is rather like saying that there was perhaps an inherent ten-
sion between the Allies and the Axis Powers in World War II. And to refer to the
two lines as pursuing twin objectives . . . is rather like referring to the twin objectives
of good and evil. They cannot be reconciled” (
Walton, at 664).
While the Supreme Court has stated time and again that the death penalty
must be imposed on an individualized basis, this process of weighing both aggravating
and mitigating factors runs the risk that capital punishment could be capriciously
administered. The
McCleskey Court seemed aware of this possibility when it stated,
“Because [the defendant’s] sentence was imposed under Georgia sentencing proce-
dures that focus discretion on the particularized nature of the crime and the particu-
larized characteristics of the individual defendant, we lawfully may presume that [the
defendant’s] death sentence was not wantonly and freakishly imposed” (
McCleskey, at
288). Yet, as Justice Scalia’s
Walton concurrence shows, this conclusion did not set-
tle the matter among the justices. Indeed, in
Kansas v. Marsh (2006), writing for a 5-
4 Court, Justice Thomas ruled that a statute directing juries to impose a death sen-
tence when mitigating factors do not outweigh aggravating circumstances, even when
mitigating and aggravating factors are in equipoise, was constitutional.
Mental Incapacities. Who is eligible for the death penalty? The Supreme Court has
confronted a number of cases in which the death penalty has been imposed on defen-
dants who are adjudged to be criminally insane or otherwise mentally deficient. In
Ford v. Wainwright (1986), with Justice Marshall writing for a 5-4 majority, the Court
r
eversed a death sentence of a defendant who suf
fer
ed fr
om severe mental diseases,
including paranoid schizophr
enia, as executing a defendant consider
ed mentally
insane violated the Eighth Amendment. A few years later
, in
Penr
y v. Lynaugh
(1989), the Cour
t considered a defendant who was judged to have the mental capac-
ity of a seven year old. In another 5-4 decision, with Justice O’Connor writing for the
Cour
t, the defendant’s death sentence was upheld as constitutional, as executing
mentally deficient individuals did not violate the Eighth Amendment. However
, the
Penr
y
Cour
t also held that the jury must be apprised of the defendant’s mental capac-
ity at the sentencing phase of a capital case.
250 THE JUSTICE SYSTEM JOURNAL
GIVE HIM A FAIR TRIAL, THEN HANG HIM 251
In the most recent in this line of cases, Atkins v. Virginia (2002), the Supreme
Court confronted the same issue as in
Penry, but this time it reached a very different
conclusion. For the 6-3 Court, Justice Stevens, who had dissented in
Penry, contend-
ed that much had changed since
Penry, including a shift in societal values concern-
ing the execution of mentally deficient individuals. Consequently, the Eighth
Amendment prohibited death sentences against the mentally deficient, and
Penry
was officially overruled. The critical factor explaining the Atkins outcome was the
switch of votes by Justices O’Connor and Kennedy from their prior stance in
Penry,
changing a 5-4 decision favoring the death penalty for mentally deficient individuals
into this 6-3 decision against such executions.
Minors. The Supreme Court also has considered cases on the execution of defen-
dants who were minors when they committed their crimes. The Court first held, in
a 5-3 ruling in
Thompson v. Oklahoma (1988), that the Eighth Amendment preclud-
ed the death penalty for defendants younger than sixteen years old. However, there
was no majority opinion, as the fifth vote for the result was provided by Justice
O’Connor, who argued that a national consensus had not yet appeared on which a
constitutional holding regarding executing minors could be based. A year later, with
Justice Scalia writing for a 5-4 majority saying no national consensus had yet emerged
on this issue, the Court held in
Stanford v. Kentucky (1989) that the Eighth
Amendment does not preclude a state from executing a sixteen- or seventeen-year-
old minor.
Thompson and Stanford collectively instruct that states could not execute
anyone under the age of sixteen, but that sixteen and seventeen year olds could be
subject to the death penalty.
The Supreme Court revisited this issue in
Roper v. Simmons (2005). Justice
Kennedy, who had not taken part in
Thompson and had voted with the Stanford
majority, wrote for the 5-4 Court to hold that societal standards had changed in the
states and internationally, such that executing minors less than eighteen years old
represented a disproportionate sanction that violated the Eighth Amendment. As
this decision was at odds with its prior decision in
Stanford, Justice Kennedy provid-
ed that
Stanford “should be deemed no longer controlling on this issue” (Roper, at
574). The dissents were issued by Justices O’Connor and Scalia, the latter joined by
Chief Justice Rehnquist and Justice Thomas.
Judge or Jur
y
.
The Supr
eme Cour
t has cover
ed a number of other issues concer
ning
the death penalty that consider neither the scope nor the object of the sentence. For
instance, in
Ring v
. Arizona
(2002) the trial judge deter
mined that aggravating but no
mitigating factors wer
e present, which rendered the defendant subject to the death
penalty in accor
dance with state law. The Supreme Court, 7-2, reversed the defen-
dant’
s death sentence, holding the Sixth Amendment requires that sentencing deci-
sions be made by the jur
y, not the judge. Justice Ginsburg’s opinion in
Ring r
elied on
the rationale of
Appr
endi v. New Jersey
(2000), in which the Cour
t had ruled that
juries, not judges, must make factual deter
minations involved in sentencing (see
Hurwitz, 2006). Because the Court’s prior decision in Walton v. Arizona (1990) per-
mitted judges to make factual determinations on aggravating and mitigating circum-
stances for sentencing, the
Ring Court specifically overruled Walton, as only juries can
make factual rulings on sentencing, even in capital cases.
Race. There has been much dispute about racial imbalance in application of the
death penalty. While
Furman touched on issues of race, it was not until the Supreme
Court’s decision in
McCleskey v. Kemp (1987) that the convergence of racial impli-
cations and capital punishment were directly before the Court. In
McCleskey, the
defendant argued that Georgia’s death penalty was imposed at least in part based on
race, particularly that of the victim, and introduced a statistical study as evidence of
racial bias in capital cases. In his decision for a 5-4 Court, Justice Powell disagreed,
saying that while the statistical study could be used to show the state’s history regard-
ing the death penalty, it had no bearing on the penalty imposed in this particular case,
and thus the death penalty was not unconstitutional for this defendant.
Claim of Actual Innocence. One of the prime arguments made by those seeking abo-
lition of the death penalty is that it risks executing an innocent person who would
have no ability to appeal the sentence after it has been carried out. This constitu-
tional issue has become tangled in state procedural elements. This happened in
Herrera v. Collins (1993), where the defendant, sentenced to death for murder in
Texas, claimed a decade after his conviction that newly discovered evidence demon-
strated his actual innocence. Because Texas law required a defendant to make claims
for new trials, including those based on newly discovered evidence, within thirty days
of conviction, his new claims were barred in state court. He thus filed a petition for
habeas corpus. Chief Justice Rehnquist, writing for the Court’s 6-3 majority, rejected
that petition, ruling that this federal procedure was reserved for reversing clear errors
at trial, not for raising new claims, even claims of actual innocence, after the trial.
Thus, the proper procedure at this point for the defendant was to apply for clemency
under the laws of Texas. While Justices Brennan and Marshall were no longer on the
Court to make their claims of the death penalty’s unconstitutionality, Justices
Blackmun, Stevens, and Souter dissented, asserting that not allowing the defendant
another habeas claim in light of the newly discovered evidence of his innocence vio-
lated the Eighth and Fourteenth Amendments. The defendant was executed a few
months after the Supr
eme Cour
t’
s decision.
THE SUPREME COURT’S 2008 DECISIONS
The Court’s continued attention to the death penalty made the October 2007 Term
an important one for this area of the law. In April 2008, the Court issued its decision
in the first of two death penalty cases it had agreed to hear,
Baze v. Rees, which con-
cerned the constitutionality of execution by lethal injection. When the Supreme
Court had granted certiorari in this case, the effect was to put on hold all executions
in the United States employing lethal injection. At issue in
Baze was the multidrug
protocol used by Kentucky to execute capital defendants. In a 7-2 decision, the Court
252 THE JUSTICE SYSTEM JOURNAL
GIVE HIM A FAIR TRIAL, THEN HANG HIM 253
held that this multidrug protocol did not violate the Eighth Amendment. Chief
Justice Roberts, joined by Justices Kennedy and Alito, issued the prevailing opinion,
saying that the multidrug protocol is humane if employed properly, as the risk of
improper administration was not great enough to render this procedure an Eighth
Amendment violation. Justices Scalia and Thomas concurred in a separate opinion,
as did Justices Stevens and Breyer in their own separate opinions, while Justices
Ginsburg and Souter dissented.
Perhaps the most interesting opinion in
Baze was that by Justice Stevens. Like his
predecessor Justice Blackmun, Justice Stevens announced that, after long supporting its
constitutionality, he now opposed the death penalty. In his concurrence, he questioned
the “legitimate penological function . . . [of] incapacitation, deterrence, and retribution”
that the
Gregg Court found necessary for imposing the death penalty (Baze, at 1547).
Justice Stevens also stated rather emphatically that the death penalty violates the
Eighth Amendment. As he put it, “I have relied on my own experience in reaching the
conclusion that the imposition of the death penalty represents the pointless and need-
less extinction of life with only marginal contributions to any discernible social or pub-
lic purposes” (
Baze, at 1551).
If he had arrived at this conclusion, why then did Justice Stevens concur with
the Court’s outcome permitting capital punishment in
Baze? He said his concurrence
was based on his respect for the authority of the Court’s death penalty jurisprudence,
providing that the death penalty is constitutional, but one could surmise that he
knew he did not have the votes on his side to go further. While Justice Stevens was
not on the Court when
Furman was decided, he had joined in Justice Stewart’s opin-
ion in
Gregg that held the death penalty constitutional under certain conditions.
Significantly, Justice Stevens had written the Court’s prevailing opinion in
Jurek v.
Texas
, one of the Gregg companion cases, providing that the death penalty is not
unconstitutional per se. Moreover, he believed that Texas’s death penalty procedure
was constitutional, as it allowed for juries to ponder both aggravating and mitigating
circumstances, and he had concluded, “Because this system serves to assure that sen-
tences of death will not be wantonly or freakishly imposed, it does not violate the
Constitution” (
Jurek, at 276). Plainly, Justice Stevens’s Jurek opinion is diametrical-
ly at odds with his concurrence in
Baze.
In the second decision during the Cour
t’
s most r
ecent ter
m,
Kennedy v
. Louisiana
(2008), the Cour
t r
uled that executing a defendant convicted of raping—but not
killing—a child was unconstitutional under the Eighth and Four
teenth Amendments.
Louisiana had passed a statutor
y rape law in 1995 defining any intercourse with a child
under thir
teen as aggravated rape, subject to the death penalty. Writing for the 5-4
Cour
t, Justice Kennedy placed Louisiana’s statute within the context of death penalty
laws for the crime of rape. He noted that in the wake of
Fur
man
, Gr
egg
, and Coker
(which invalidated death sentences for rape of adults), Louisiana was one of only six
states that had passed laws constituting child rape as a capital crime. For Justice
Kennedy, this was problematic under evolving standards of decency: “The evidence of
a national consensus with respect to the death penalty for child rapists, as with respect
to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divid-
ed opinion but, on balance, an opinion against it” (
Kennedy, at 2653).
Justice Kennedy also stated that
Coker, which rendered unconstitutional the
death penalty for the rape of adults, did not necessarily signify that child rape was an
appropriate capital offense. Indeed, in
Kennedy, the Court held that executing a child
rapist is similar to executing an adult rapist in that both represent penalties dispro-
portionate to the crime. Justice Kennedy concluded that “resort to the [death] penal-
ty must be reserved for the worst of crimes and limited in its instances of application.
In most cases justice is not better served by terminating the life of the perpetrator
rather than confining him and preserving the possibility that he and the system will
find ways to allow him to understand the enormity of his offense” (
Kennedy, at 2665).
Justice Alito’s dissenting opinion, joined by Chief Justice Roberts and Justices
Scalia and Thomas, disagreed that a national consensus had been reached regarding
opposition to executing child rapists. In particular, said Alito,
Coker specifically dis-
tinguished between convictions for raping an adult and a child. Consequently, a
number of state legislatures passed laws rendering child rape a capital offense. As
Justice Alito put it: “I do not suggest that six new state laws necessarily establish a
national consensus or even that they are sure evidence of an ineluctable trend. In
terms of the Court’s metaphor of moral evolution, these enactments might have
turned out to be an evolutionary dead end. But they might also have been the begin-
ning of a strong new evolutionary line. We will never know, because the Court today
snuffs out the line in its incipient stage” (
Kennedy, at 2672-73). Moreover, Justice
Alito contended that executing child rapists is not disproportionate to what are often
heinous crimes that have devastating effects on both the victim and society.
CONCLUSION
By deciding Furman and Gregg as it did, the Supreme Court firmly injected itself into
the decision-making process regarding the death penalty. In
Furman, the Court effec-
tively stayed the death penalty in the United States, only to lift that suspension four
years later in
Gregg when it acknowledged certain death sentences as constitutional.
Interestingly, a common theme in the majority opinions in
Gregg is the need for judi-
cial restraint, for the federal judiciary to allow the political process in the states to
determine the extent to which the death penalty will be permitted.
Notwithstanding, as Justice Powell in
Furman and Justice Stewart in Gregg declared,
judicial intervention remains necessary due to the mere existence of the Eighth
Amendment. Even though Justices Powell and Stewart also argued for judicial
restraint in these cases, it was clear by the time the
Gregg decision was announced
that judicial restraint was, yet again but unsurprisingly, a nominal moniker without
much substance.
254 THE JUSTICE SYSTEM JOURNAL
GIVE HIM A FAIR TRIAL, THEN HANG HIM 255
Furman and Gregg provided the opportunity for a range of issues to be raised
regarding the death penalty. As a consequence, the Court has struggled to come up
with consistent standards in capital cases. Personnel changes on the Court, as well
as the changing minds of some justices, have made the Court’s death penalty jurispru-
dence variable. Indeed, the Court’s decisions subsequent to
Furman and Gregg illus-
trate that the legal battles over the death penalty were not settled by these seminal
decisions, and even the more recent cases have not closed the door to new arguments
and legal issues in this area of the law. As Justice Stevens stated in his concurrence
in the recent
Baze case: “I am now convinced that this case will generate debate not
only about the constitutionality of the three-drug protocol . . . but also about the jus-
tification for the death penalty itself” (
Baze, at 1542-43).
Whether the Supreme Court continues to interject itself in the death penalty
debate remains to be seen. As always, the personnel on the Supreme Court loom crit-
ical to this issue. Justice Stevens seems to have taken a similar route to that taken by
Justice Blackmun on the death penalty, moving away from his original stance that
capital sentences are not unconstitutional. Yet there remain four justices on the
Court who likely consider capital punishment an appropriate and constitutional
criminal sanction—Chief Justice Roberts and Justices Scalia, Thomas, and Alito,
who make up the conservative bloc of the Court. With Justices Souter, Ginsburg, and
perhaps Breyer presumably joining Justice Stevens on the liberal side of death penal-
ty cases, Justice Kennedy’s position at the Court’s median will likely control most out-
comes in death penalty cases, as it does more generally. Indeed, Justice Kennedy’s
influence has already proven pivotal in recent decisions on capital cases (e.g.,
Atkins
v. Virginia
, Roper v. Simmons).
Whatever direction the Supreme Court takes in upcoming death penalty cases,
the notion that the Court resolves critical death penalty issues derives at least in part
from the competing stances it took in
Furman and Gregg, the cases that inaugurated
the modern era of Supreme Court jurisprudence on death sentences. And the con-
tinuing legacy of these cases from the 1970s is that any future decisions by the Court
will likely not settle the issue of the death penalty, as succeeding cases will presump-
tively oversee those issued even in the recent past. Yet, as crucial the Supreme Court
has proven to the death penalty debate over the past thirty-five years, in the end the
outcome of capital punishment may be determined by the political process engaged
by legislative and executive branches, at least if the recent trend of executing fewer
capital defendants each year continues. Nonetheless, impending judicial r
eview by
the Supr
eme Court remains a pragmatic threat to legislative action with respect to
the death penalty
.
jsj
REFERENCES
Hurwitz, M. S. (2006). “Much Ado About Sentencing: The Influence of Apprendi, Blakely, and
Booker in the U.S. Courts of Appeals,” 27 Justice System Journal 81.
Palmer, L. I. (1979). “Two Perspectives on Structuring Discretion: Justices Stewart and White
on the Death Penalty,” 70 Journal of Criminal Law and Criminology 194.
CASES CITED
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Atkins v. Virginia, 536 U.S. 304 (2002).
Baze v. Rees, 128 S.Ct. 1520 (2008).
Callins v. Collins, 510 U.S. 1141 (1994).
Coker v. Georgia, 433 U.S. 584 (1977).
Kansas v. Marsh, 548 U.S. 163 (2006).
Ford v. Wainwright, 477 U.S. 399 (1986).
Furman v. Georgia, 408 U.S. 238 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
Herrera v. Collins, 506 U.S. 390 (1993).
Jurek v. Texas, 428 U.S. 262 (1976).
Kansas v. Marsh, 548 U.S. 163 (2006).
In re Kemmler, 136 U.S. 436 (1890).
Kennedy v. Louisiana (2008), 128 S. Ct. 2641 (2008).
Lockett v. Ohio, 438 U.S. 586 (1978).
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).
McCleskey v. Kemp, 481 U.S. 278 (1987).
Penry v. Lynaugh, 492 U.S. 302 (1989).
Proffitt v. Florida, 428 U.S. 242 (1976).
Ring v. Arizona, 536 U.S. 584 (2002).
Roberts v. Louisiana, 428 U.S. 325 (1976).
Robinson v
. Califor
nia
, 370 U.S. 660 (1962).
Roper v. Simmons, 543 U.S. 551 (2005).
Stanford v. Kentucky, 492 U.S. 361 (1989).
Thompson v. Oklahoma, 487 U.S. 815 (1988).
Trop v. Dulles, 356 U.S. 86 (1958).
Walton v. Arizona, 497 U.S. 639 (1990).
Woodson v. North Carolina, 428 U.S. 280 (1976).
256 THE JUSTICE SYSTEM JOURNAL
