No legal topic remains as controversial as the death penalty. The continued use of the death penalty divides the nation on some of the most fundamental moral and political debates. While the death penalty is a form of punishment that has been around since he dawn of time, many people question whether the use of the death penalty is compatible with modern society. The death penalty also raises some interesting constitutional concerns. There is widespread belief that the death penalty is not administered in a fair and impartial manner, which would mean that some groups of people are disproportionately subject to the death penalty. As the goal of the criminal justice system is strive for fairness and equality, the fact that the death penalty is administered in an unfair and bias manner should be pause for concern.
The Constitution
There is inherent tension between the Constitution and the death penalty. The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (US Const. amend. VIII). The cruel and unusual punishment prohibition reflects the current ideology and notions of society. There are many forms of punishment that were once deemed acceptable that by today’s standards are absolutely barbaric. It was once commonplace to subject criminals to brutal punishments such as drawing and quartering, hanging, and beheading, just to name a few. In modern days, however, these punishments are out-of-step with the times and have been deemed to fall under the category of “cruel and unusual.”
It is somewhat surprising that the death penalty in and of itself has never been found to violate the Eighth Amendment prohibition against cruel and unusual punishment. The taking of a human life could reasonably be construed to violate the dictates of the Constitution. While the Supreme Court has attempted to narrow the instances in which the death penalty could withstand constitutional scrutiny, the Court has never abolished capital punishment outright.
The Supreme Court effectively placed a temporarily stoppage on the death penalty in 1972. In Furman v. Georgia, the Court held that the way the death penalty was administered violated the Eighth Amendment (Furman v. Georgia, 1972). The Court took issue with the fact that the death penalty was being imposed in an arbitrarily and inconsistent manner. The effect of the majority’s decision resulted in a moratorium on the use of the death penalty across the nation.
The impact of Furman, halting the use of the death penalty, did not last long. Just four years later in 1976, the Supreme Court decided another death penalty case. In Gregg v. Georgia, the Court held that the death penalty did not run afoul of the Eighth Amendment (Gregg v. Georgia, 1976). The Court found that the death penalty complied with “evolving standards of decency that mark the progress of a maturing society” (Gregg v. Georgia, 1976, 190). The Gregg decision gave the green light for states that imposed the death penalty to begin using the death penalty once again.
Since Gregg was decided, the Supreme Court has refined the category of persons who are eligible for the death penalty, thus narrowing the classes of persons that can be subject to capital punishment. The judicial narrowing is buttressed on the notion of the “evolving standards of decency.” In holding that imposing the death penalty on certain persons would violate the Eighth Amendment, the Supreme Court is essentially making a value-judgment about the opinions and viewpoints of the citizenry of modern society.
The Supreme Court has specifically found that the death penalty is cruel and unusual punishment as applied to two classes of persons. In Roper v. Simmons, the Court declared that juveniles could not be subject to the death penalty (Roper v. Simmons, 2005). In the minds of many Americans, the idea of putting a child to death would be shocking. It is therefore somewhat surprising that Roper is a relatively recent decision, coming out in 2005. The second class of persons that cannot be subject to the death penalty is the mentally retarded. Resting the decision on similar rationales as juveniles, the Court found that executing the mentally retarded violates the Eighth Amendment (Atkins v. Virginia, 2002).
There are still ample due process concerns with the manner in which the death penalty is imposed. Whether people agree or disagree with the death penalty, it is used in this nation as a form of punishment for the most serious crimes. One procedure that is popular among capital cases is the use of bifurcated trials. For many years, the system has employed bifurcated proceedings in such cases (Hemmers 1142). The overall purpose of bifurcation is to separate the guilt determination phase and the sentencing phase of the trial (Hemmers 1156). This could be particularly important in a capital case.
Emotions and tensions run high in the regular criminal trial, and an especially egregious or heinous murder could sway the jury to impose the death penalty based on the pure emotional and prejudicial environment. The bifurcation of the trial allows the criminal defendant to be sentenced in a separate proceeding apart from the guilt determination. In a capital case, a separate sentencing phase allows the defendant to proffer character evidence and other mitigating evidence while disallowing prejudicial evidence against the defendant (Hemmers 1157). The usefulness of bifurcation, therefore, is to ensure that a death penalty sentence is administered in a fair and consistent manner, free from external and emotional factors. Another procedural protection in place in death penalty cases is the requirement of juries. About two thirds of the states that impose the death penalty mandate that a jury sentence the defendant to death (Perruso 215).
Disproportionate Impact
Racial discrimination has been an issue that has always plagued this nation, but none more so than in the area of criminal justice. Racial discrimination is particularly acute in the death penalty context. It is beyond dispute that African Americans are disproportionately represented in the criminal justice system. The disproportionate impact is even more drastic when examining defendants on death row. African Americans represent 52 percent of all persons executed in the United States, even though African Americans only comprise of 12 percent of the total United States population (Baker 194). These statistics brings into question the essential fairness of the death penalty and should create concern that it is administered in a racially biased manner.
Racial discrimination in any form is invidious, particularly so if carried out by the state. Since it is beyond dispute that certain minority groups are disproportionately impacted by the death penalty, even if this result is not motivated by racial animus, it should bring into question the efficacy and fairness of the death penalty as a means of punishment. Since executions are carried out and endorsed by the state, evidence of racial bias and discrimination is rather troubling. The criminal justice system should be careful to not implicitly foster racial discrimination in the form of the death penalty.
Deterrence Factor (Or Lack Thereof)
One argument that proponents of the death penalty advance is that the death penalty is a greater deterrence to violent crime. If criminals are aware that the potential penalty for a crime is execution, this will deter many people from committing such crimes. There is very little empirical evidence to suggest one way or the other that states that impose the death penalty have lower violent crime rates than those states that do not have the death penalty. The evidence seems to be quite mixed.
Statistics from the Federal Bureau of Investigation show that states that have abolished the death penalty actually have lower homicide rates than the national average (Bonner and Fessenden). It is also striking that the states that do impose the death penalty have the highest crime rates. California and Louisiana, which both have the death penalty, have extremely high crime rates. Other studies reveal that the death penalty does deter violent crime. A national study seemed to suggest that for each person put to death, eighteen murders were prevented (Roper 18). Although the death penalty may have some deterrent factor, the price of a human life must be heavily weighed against the marginal deterrence that such a severe punishment produces.
The Western Demise of Death
While the Court restricts the situations in which the death penalty can be imposed, it has not been abolished altogether. The United State’s continued use of the death penalty defies trend among the Western world. Western European nations have universally abolished the death penalty, the last nation being Turkey in 2004 (Millett 634). Countries around the world that traditionally used the death penalty have also since chosen to abolish it (Millett 634). The United States thus stands alone its continued utilization of capital punishment.
The growing international trend of abolishing the death penalty leaves the United States in a tricky spot. Because the European Union largely condemns the death penalty, the United State’s steadfast adherence to death penalty could strain international relations. The United States joins the group of nations that continue to implement the death penalty and carry out executions. The list of nations that use the death penalty most frequently include Saudi Arabia, China, Malaysia, and the United States (Bishop 1148-1149). As these nations are known for human rights violations and abuses, it is unsettling that the United States should join such nations in keeping with the death penalty.
A growing number of states have abolished the death penalty. Many states, even if they have not abolished the death penalty, no longer impose capital punishment. But despite the fact that some states have shied away from the death penalty, other states continue to utilize it in full force. It is thus difficult to say with any certainty what the American national consensus is regarding the death penalty. It varies largely depending on geographic region of the country.
Conclusion
What makes the death penalty different from other forms of punishment is its finality. If an innocent person is executed, there is now way to go back and remedy this wrong. The evolving standards of decency standards seems to suggest that one day, the death penalty will be found to violate the Eighth Amendment. The growing international trend is to get rid of the death penalty. It is quite possible that in the near future, the United States will join this ever-growing list of nations that no longer support capital punishment. It is likely that more and more states will abolish the death penalty or refuse to sentence persons to death.
Works Cited
Atkins v. Virginia, 536 U.S. 304. Supreme Court of the US. 2002. Print.
Baker, David V. “Purposeful Discrimination In Capital Sentencing.” Journal of Law &
Social Challenges (2003): 189-223. Print.
Bishop, Anthony N. “The Death Penalty In the United States: An International Human
Rights Perspective.” South Texas Law Review (2002): 1115-1231. Print.
Bonner, Raymond and Fessenden, Ford. “Absence of Executions: A special report.; States With
No Death Penalty Share Lower Homicide Rates.” New York Times 22 Sept. 2000. Print.
Furman v. Georgia, 408 U.S. 238. Supreme Court of the US. 1972. Print.
Gregg v. Georgia, 428 U.S. 153. Supreme Court of the US. 1976. Print.
Hemmers, Meredith. “Bifurcated Criminal Trials: A new Mandate Without Guidance.”
UMKC Law Review (2004): 1137-1158. Print.
Millett, Frederick C. “Will the United States Follow England (And the Rest of the World)
In Abandoning Capital Punishment?” Pierce Law Review (2008): 547-645. Print.
Perruso, Roxane J. “And Then There Were Three: Colorado’s New Death Penalty Sentencing
Statute.” University of Colorado Law Review (1997): 189-227. Print.
Roper, Richard B. “The Death Penalty At the Intersection of Reality and Justice.” Texas Tech
Law Review (2008): 15-31.
Roper v. Simmons, 543 U.S. 551. Supreme Court of the US. 2005. Print.
US Constitution, amend. VIII. Print.
