Introduction
No form of punishment engenders more controversy than the death penalty. Although capital punishment has been used since ancient times, its modern utilization is repeatedly called into question. The United States stands alone among Western world counterparts in its continued use of the death penalty. Among the international community, the general trend largely reflects a discontinuance of capital punishment. For instance, member states of the European Union have all abolished the death penalty (Shin, 2007, p. 505). Given the overwhelming number of nations that have since abolished the death penalty, it is somewhat surprising that the United States continues to rank among countries like Saudi Arabia and China in maintaining adherence to the death penalty.
Constitutional Framework
The Constitution is silent with respect to capital punishment. The Eighth Amendment of the Constitution provides protection against “cruel and unusual punishment (U.S. Const. amend. VIII). From the text of the Constitution itself, there is nothing to indicate that the death penalty would be an unconstitutional form of punishment. Over the years, however, the Supreme Court has confronted the question of capital punishment in light of the prohibition against cruel and unusual punishment.
What makes the death penalty a truly unique and awesome punishment is its finality. Once a person is put to death, that act cannot be undone. Unlike a life sentence without parole, a mistake cannot later be rectified or remedies after the death penalty is imposed. In addition, there are various issues inherent in the administration of the death penalty. One major area of concern is that it has a disproportionate impact on African Americans (Weatherspoon, 2007, p. 604). This is particularly troubling if the underlying purpose of the criminal justice system is to strive for fairness, equality, and impartiality for all persons. Many argue that the criminal justice system simply perpetuates institutional slavery and racism in the way it serves to disproportionately disadvantage poor minorities over Caucasians. In a criminal justice system that strives to achieve fairness, equality, and justice, this notion is quite troubling.
Through litigation, there has never been a successful challenge that the death penalty in and of itself, as a form of punishment, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Nonetheless, there have been numerous constitutional challenges to some aspect or administration of the death penalty. The starting case is Furman v. Georgia. In Furman, the Court held that administering the death penalty in an arbitrary and inconsistent manner constituted cruel and unusual punishment in violation of the Constitution (Furman v. Georgia, 1972, pp. 294-295). The aftermath of Furman was an effective moratorium on the imposition of the death penalty due to constitutional infirmities in the way many states administered capital punishment. To the dismay of many, however, the moratorium on executions was only short-lived.
Just four years after Furman was decided, the Court was again faced with a constitutional challenge to a state’s death penalty scheme in Gregg v. Georgia. The Gregg case raised the direct question of whether the death penalty was cruel and unusual punishment in violation of the Eighth Amendment. The Court found that there was nothing inherently cruel or unusual abut the death penalty and, therefore, it did not violate the Constitution (Gregg v. Georgia, 1976, p. 207). Two Justices dissented from the majority opinion, arguing that the death penalty was a cruel and unusual form of punishment.
The Gregg decision foreclosed the opportunity for future litigants to raise a facial challenge to the death penalty itself. The Court explicitly held that the death penalty was constitutional. But Gregg certainly did not put an end to constitutional objections over aspects of capital punishment. Gregg left many questions unanswered. One major issue was the proportionately aspect of the death penalty. While the death penalty is arguably proportionate for a defendant who commits murder, for crimes that do not result in the victim’s death, the death penalty is unfitting for the crime. Another major issue goes to the criminal culpability of the defendant. For the able-adult defendant who intentionally commits a brutal murder with malice aforethought, there is little doubt that the defendant deserves to be held criminally responsible for his crimes. But for other persons who may be less criminally culpable due to young age or mental infirmity, whether these individuals are deserving of the death penalty is a much more difficult analysis.
With regards to the first issue, the Supreme Court has made clear that death-eligible crimes are limited to those that result in the victim’s death. While there are some appalling and heinous crimes that warrant equal moral opprobrium as murder, a defendant cannot be sentenced to death if his or her crime unless the victim is actually killed. In Kennedy v. Louisiana, the Court addressed whether a defendant could be put to death for the brutal rape of a young child. Previously, the Court in Coker v. Georgia had held that a defendant could not be put to death for the rape of an adult woman (Kennedy v. Louisiana, 2008, pp. 417-418). In finding that the imposition of the death penalty was disproportionate for the crime of rape, even for a child, the Court looked to the “evolving standards of decency that mark the progress of a maturing society” as a guidepost (Kennedy v. Louisiana, 2008, p. 419).
The Court ultimately concluded that imposing the death penalty for the rape of a child violated the Eighth Amendment (Kennedy v. Louisiana, 2008, p. 421). In reaching this decision, the Court stated that the death penalty should be limited to only those defendants who are most deserving and commit the most severe offenses (Kennedy v. Louisiana, 2008, p. 420). While the rape of a child was morally reprehensible, imposing the death penalty for this crime would amount to cruel and unusual punishment in violation of the Eighth Amendment.
The second area in which the Court has severely restricted the constitutional imposition of the death penalty goes to a defendant’s particular criminal culpability. In the juvenile context, the Supreme Court has declared it unconstitutional to sentence a defendant under the age of 18 to death. In Roper v. Simmons, the Court articulated that there are marked differences between juveniles and adults in terms of criminal culpability and, as such, juveniles should not be held to the same level of criminal responsibility (Roper v. Simmons, 2005, p. 569). Citing ample research and studies that showed juveniles lack the maturity and decision-making of competent adults, the Court held that applying the death penalty to juvenile offenders would be unconstitutional (Roper v. Simmons, 2005, p. 569).
Under similar reasoning, the Court has also found that imposing the death penalty on the mentally retarded is unconstitutional. In Atkins v. Virginia, the Court held that the mentally retarded have a reduced moral culpability for their crimes because they lack the complete understanding and intent that a regular, competent adult possesses (Atkins v. Virginia, 2002, p. 320). The Court, therefore, found that imposing the death penalty on the mentally retarded would be inconsistent with the “evolving standards of decency” of a progressing society and was in violation of the Eighth Amendment (Atkins v. Virginia, 2002, p. 321).
Both Roper v. Simmons and Atkins v. Virginia were decided on similar constitutional grounds. In American criminal law, intent matters. Society has made the at-large judgment that a criminal defendant’s intent and purpose behind committing the crime is relevant to determine the appropriate punishment. This value-judgment plays out grades of crimes such as first-degree murder, second-degree murder, and manslaughter. While the criminal act in all the offenses is the same, that is, the victim died, what distinguishes these degrees of crime from each other is defendant’s specific intent at the time of the commission of the crime. Because criminal responsibility and culpability are important features of law, the Supreme Court has accordingly limited the availability of capital punishment to only those defendants who are most morally and criminally responsible.
Conclusion
While the popularity of capital punishment has gradually declined, in many parts of the country, it remains strong. While it is relatively rare for the Supreme Court to hear a death penalty case, as previous cases suggest, the Court has evinced a tendency to keep narrowing the class of defendants and crimes in which the death penalty can be constitutionally imposed. Perhaps in the near future, the progressive Court will eventually hold that the death penalty is an outdated, cruel and unusual form of punishment. But until then, states are free to keep the death penalty on the books.
References
Atkins v. Virginia, 536 U.S. 304 (2002).
Furman v. Georgia, 408 U.S. 238 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
Kennedy v. Louisiana, 554 U.S. 407 (2008).
Roper v. Simmons, 543 U.S. 551 (2005).
Shin, H. (2007). Is the death of the death penalty near? The impact of atkins and roper on
the future of capital punishment. Fordham Law Review, 465-516.
U.S. Const. amend. VIII.
Weatherspoon, F.D. (2007). The mass incarceration of African-American males: A return
rights. Texas Wesleyan Law Review, 599-617.
