Constitutionality of the Death Penalty Essay

There has been much controversy concerning the death penalty both within society and the judicial system. Courts throughout the nation have waivered back and forth on the subject. Several times in various states the death penalty has been abolished, re-instated, and vice-versa. From 1976 to present day the death penalty has been in effect federally, but that does not mean that the law will remain in place for good. There are still several issues concerning the death penalty; such as the method upon which death is inflicted.

Other issues include whether or not juveniles and/or mentally handicapped individuals should be considered for the death penalty, and the inability to correct wrongful convictions (i. e. if the individual is dead there is no way to make amends with the innocent condemned. ). Before the 1960’s the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. Conversely, in the early 1960’s it was suggested that the death penalty was “Cruel and unusual” punishment, and therefore unconstitutional under the Eighth Amendment.

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In 1968 the Court heard two cases dealing with the diplomacy given to the prosecutor and the jury in capital cases. The first case was U. S. v. Jackson (390 U. S. 570), where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.

The other 1968 case was Witherspoon v. Illinois (391 U. S. 510). In this case, the Supreme Court held that a potential juror’s mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be prohibited only if prosecutors could show that the juror’s attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment. In 1972, the Supreme Court decided the landmark case of Furman v. Georgia (408 U. S. 238).

In a 5-4 decision, the Court’s one-page per curiam opinion held that the implication of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. In the following four years, 37 states enacted new death penalty laws aimed at overcoming the court’s concerns about arbitrary imposition of the death penalty. The death penalty did not spend too much time on the sidelines, however. In 1976, the Court reinstated the death penalty in Gregg v Georgia (428 U. S. 153). The Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme.

First, the design must provide objective criteria to direct and limit the sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences. Second, the proposal must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant. July 2nd, 1976 could have very well marked the foundation of the United State’s modern legal conversation about the death penalty: Major ensuing developments include forbidding the death penalty for rape (Coker v.

Georgia), restricting the death penalty in cases of felony murder (Enmund v. Florida), exempting the mentally handicapped (Atkins v. Virginia), and juvenile murderers (Roper v. Simmons) from the death penalty, removing virtually all limitations on the presentation of mitigating evidence (Lockett v. Ohio, Holmes v. South Carolina), requiring precision in the definition of aggravating factors (Godfrey v. Georgia, Walton v. Arizona), and requiring the jury to decide whether aggravating factors have been proved beyond a reasonable doubt (Ring v. Arizona). Wikipedia, Gregg v. Georgia, par. 3) One school of thought and obvious concern has been that there are too many death penalties being sentenced to minorities, in particular black males.

There is difficulty in discerning the truth of whether or not authorities are arresting and prosecuting everyone fairly, or if it is possible that the majority of the capital offenders are black males, and whether these minorities are receiving cruel and unusual punishment when compared to the majority of offenders with the same type of offenses. In McCleskey v. Kemp (481 U. S. 79 (1987)), McCleskey argued that there was racial discrimination in the application of Georgia’s death penalty, by presenting a statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The Supreme Court held, however, that racial disparities would not be recognized as a constitutional violation of “Equal protection of the law” unless intentional racial discrimination against the defendant could be shown. The issue of the mentally ill with regards to sentencing in capital cases continues to be a tricky one.

In 1986, the Supreme Court banned the execution of insane persons and required an adversarial method for determining mental competency (Ford v. Wainwright (477 U. S. 399)). In Penry v. Lynaugh (492 U. S. 584 (1989)), the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment. However, in the 2002 case of Atkins v. Virginia (536 U. S. 304), the Court held that a national consensus had evolved against the execution of the mentally retarded and concluded that such a punishment violates the Eighth Amendment’s ban on cruel and unusual punishment.

Certainly this is one area of legislation that is very much a gray area. It is increasingly difficult to discern what level of mental retardation constitutes being off limits with regards to capital punishment. With advancements in science and the medical arena, there are constant discoveries within the mental illness field as well, and there are several cases in which defendants only claim some level of mental handicap after the crime has been committed. It is then up to a psychologist or several psychologists to determine their level of mental competency.

In the late 1980’s, the Courts addressed the issue of capital punishment in relation to juveniles. Many believe that it is not the actual age of the offender committing the crime, but the mental capacity and awareness of the individual. Hence, if a person is mentally competent to fully understand what he/she did, and the repercussions of his/her actions, then the individual should be reprimanded the same way an adult would. The Courts have come up with a more clear-cut method when dealing with juvenile defenders.

Determining the mental competency in 1988, Thompson v. Oklahoma (487 U. S. 815), “Four Justices held that the execution of offenders aged fifteen and younger at the time of their crimes was unconstitutional. ” And in March 2005, Roper v. Simmons, the United States Supreme Court declared the practice of executing defendants whose crimes were committed as juveniles unconstitutional. Thus, those who are deemed juveniles (age 17 and younger) are therefore off limits as far as the death penalty is concerned regardless of their mental awareness.

In November 1998 Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty in Chicago, Illinois. Because of efforts such as these many wrongfully convicted individuals have been set free. In several cases injustices were not discovered because of the justice system, but because of new scientific techniques such as DNA exoneration. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates.

From cyanide gas, the gas chamber was created. Charles Brooks became the first person executed by lethal injection in Texas on December 7, 1982. This has since become the method of choice for nearly all U. S. states. Since implementation of lethal injection, 1004 executions have been carried out in this manner, along with 155 executions through electrocution, 11 through the gas chamber, 3 hangings, and surprisingly there have actually been 2 through firing squad. Oklahoma and Utah are the only states where this is still allowed.

Courts have waivered back and forth on the subject on the death penalty and it may never be fully resolved as to whether or not it should be punishable by law. Since 1976, at the federal level the death penalty has been deemed constitutional. Although an overwhelming majority of individuals receiving the death penalty have historically been minorities, case law has shown that is extremely difficult to prove that intentional racial discrimination against the defendant could be shown.

Courts have concluded that if psychologists find an individual to be mentally handicapped, they cannot be sentenced to death. Likewise juveniles (under the age of 18) cannot be given the death penalty since Roper v. Simmons 2005. DNA and other new scientific technologies have helped exonerate wrongful convictions and continue to improve upon the sentencing process. Believe it or not, two states, Utah and Oklahoma, both allow death by firing squad; the majority of states however, use lethal injection as their means of implementing the death penalty.

References:

Worrall, John L. (2007) Criminal Procedure. From First Contact to Appeal Wikipedia, Furman v. Georgia. http://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States http://www.deathpenaltyinfo.org/part-i-history-death-penalty Wikipedia, Gregg v. Georgia. 17 September, 2009. par. 3, http://en.wikipedia.org/wiki/Gregg_v._Georgia

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