After declaring execution unconstitutional in 1972, the U.S. Supreme Court reinstated the death penalty contingent on protection against its arbitrary and capricious imposition.
The death penalty is a method of punishment that historically has been applied globally for both serious and relatively minor crimes against state, person, and property. During the medieval and early modern periods of European history, the death sentence was used as punishment for many crimes and usually was administered in public, often accompanied by torture of the most painful and gruesome kind. The greatest abuse of the use of the death penalty was probably reached in eighteenth century England when it was decreed, although not regularly applied, for several hundred offenses, most representing crimes against property.
The increased use of the death penalty and the resulting public desensitization, accompanied by the humanitarian movement in the West known as the Age of Enlightenment, led to a growing reaction to its use, especially among the intellectuals of the age. The most famous early attack on the death penalty came from an Italian, Cesare Beccaria, whose treatise Dei delitti e delle pene (1764; essay on crimes and punishments) led to a rapidly growing demand for reform. The results were quick to come. During the French Revolution, for example, the guillotine was used as a more humane instrument of execution than the less swift and sure ax or sword. By the 1830’s, the number of cases in England for which the death penalty could be imposed had been reduced from the hundreds of a few decades earlier to fifteen. The same trends followed in the United States, although the death penalty had never been imposed widely there.
By the middle of the twentieth century, the use of the death penalty had declined even further throughout most of the world, especially in Europe and the Americas. However, a large majority of the states in the United States still legislated its potential use in court sentences, although it seldom was actually imposed. A continuous attack on the imposition of the death penalty in criminal cases accompanied this decline in capital punishment. The opponents of the death penalty were never a majority, however, and all their arguments were countered by its proponents.
Generally, arguments for and against capital punishment can be divided into two basic categories—one based on religious belief and emotions, and the other founded on utilitarian or practical arguments. Supporters have argued, for example, that it is ordained by God as a means by which humans act as God’s agents in ridding the world of the grossly undesirable, whereas opponents have held that justice belongs to God alone and cannot be delegated to people. In the category of practicality, supporters have held that capital punishment is a deterrent, protecting the community, prison staffs, and fellow prisoners from dangerous criminals. They also argue that those prisoners who receive the penalty of life imprisonment instead of death are an economic liability to the state. Opponents have countered these arguments by asserting that there is no proof that the threat of death deters criminals from committing capital offenses. Rehabilitation in prison rather than punishment could mitigate the problem of the dangerous criminal to society, prison staff, and prisoners. Also, in well-run prisons, prisoners can be economic assets instead of liabilities. Most important, critics of the death penalty have argued that judicial error can and has led to the execution of innocent persons, and that the imposition of the death penalty often has been socially and racially arbitrary and discriminatory. It was essentially on these arguments that the U.S. Supreme Court made its decisions on the death penalty in 1972 and 1976.
In 1972, two petitioners from Georgia, William Henry Furman and Lucious Jackson, Jr., and a petitioner from Texas, Elmer Branch, brought suit in federal court against their respective states. Georgia state courts had convicted Furman and Jackson of murder and rape, respectively, and the men had been sentenced to death by juries that had discretion over whether to impose the death penalty. Their sentences had been upheld by the Georgia Supreme Court. Branch had been sentenced to death for rape in Texas by a jury with the same discretionary power, and his sentence had been upheld by the Texas Court of Criminal Appeals. The U.S. Supreme Court, in a five-to-four decision, reversed the judgment of the state courts and remanded the cases for further proceedings. The cases were consolidated for argument and decision.
Opponents of capital punishment in Richmond, Virginia, in 1996 join in a long American tradition of public protests against the death penalty, which was reinstated in 1976.
Furman, the plaintiff in the most renowned case, was an African American man who had attempted to enter a private home at night. He had shot and killed the home owner through a closed door. Furman was twenty-six years of age and had a sixth-grade education. Prior to trial, Furman was committed to the Georgia Central State Hospital for a psychiatric examination on his plea of insanity. The hospital superintendent reported a diagnosis of mental deficiency with psychotic episodes. Although not psychotic at the time, Furman was not capable of cooperating with the defense counsel, and they believed he needed further treatment. The superintendent later amended the report, saying Furman knew right from wrong and could cooperate with counsel.
Justices William O. Douglas, William J. Brennan, Potter Stewart, Byron White, and Thurgood Marshall composed the majority. They held that the death penalty, as it had been applied in these three cases, violated the Eighth and Fourteenth Amendments’ prohibition of cruel and unusual punishment because, under the laws of Georgia and Texas, juries had an untrammeled discretion to impose or withhold the death penalty. In his opinion, Douglas held that the death penalty was cruel and unusual because, since it was imposed at the discretion of the jury, it had been applied selectively in a discriminatory fashion to members of a minority. Brennan, probably in an attempt to counter strict constructionists of the Constitution, held that the Eighth Amendment’s
After the Supreme Court decision in Furman v. Georgia, thirty-five states and the federal government revised their capital punishment statutes to eliminate the equal protection problems. The revised statutes fell into two categories: those that made the death penalty mandatory for certain crimes and those that allowed the judge or jury to decide, under legislative guidelines, whether to impose the death penalty. Georgia, for example, amended its laws regarding imposition of the death penalty and attempted to make them fair, nondiscriminatory, and nonarbitrary. Under the new law, guilt or innocence was to be determined either by a jury, or by a trial judge in a case where there was no jury. In a jury trial, the judge was required to instruct the jury on lesser included offenses supported by the evidence.
After either a verdict, a finding, or a plea of guilty, a presentence hearing was to be conducted, at which the jury or judge would hear arguments and additional evidence in order to determine the punishment. At least one of two aggravating circumstances specified in the laws had to be found to exist beyond a reasonable doubt and had to be stated in writing before a jury or judge could impose the death penalty. The death sentence then was appealed automatically to the Supreme Court of Georgia, which would determine if the sentence had been imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supported the finding of a legally aggravating circumstance; and whether the sentence was excessive or disproportionate to the penalty imposed in similar cases. If the Georgia Supreme Court affirmed the death sentence, its decision was required to include reference to similar cases that the court had considered.
A case to test these revised Georgia statutes, Gregg v. Georgia, was argued before the U.S. Supreme Court in March, 1976, and decided on July 2, 1976. Troy Leon Gregg and a companion were picked up by two motorists while hitchhiking in Florida. The bodies of the two motorists later were found beside a road near Atlanta, Georgia. When arrested the next day, a .25-caliber pistol was found in Gregg’s possession and subsequently identified as the murder weapon. Gregg confessed, but claimed self-defense. Gregg had been convicted by a jury in a Georgia state court of two counts of armed robbery and two counts of murder. Throughout the trial and in the appeals process, the new Georgia statutes had been followed. The Georgia Supreme Court affirmed the conviction and the imposition of the death sentence for murder, although it vacated the sentence for the two counts of armed robbery.
The U.S. Supreme Court affirmed the decision of the Georgia Supreme Court. In a decision announced by Justices Stewart, Lewis F. Powell, Jr., and John Paul Stevens, seven of the nine justices held that in this case, the imposition of the death penalty did not violate the prohibition of the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments. The right of states to impose and implement the death penalty had been affirmed, so long as a state’s statutes were fair, nondiscriminatory, and nonarbitrary. Although the restrictions had been lifted, society has continued to approach the death penalty with resistance, hesitation, and confusion.
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Isenberg, Irwin, ed. The Death Penalty. New York: H. W. Wilson, 1977. A compilation of writings on the constitutional, legal, ethical, and philosophical aspects of capital punishment, taken from a wide variety of sources, mainly periodicals. -
Jenkins, Nicholas. “Dirty Needle.” The New Yorker, December 19, 1994, 5-6. Arguing against capital punishment, the article looks at different methods used to execute and the implications these methods have for society. -
Johnson, Robert. Condemned to Die: Life Under Sentence of Death. Prospect Heights, Ill.: Waveland Press, 1989. An easily readable text with implications for current criminological thought. It deals with the warehousing of condemned prisoners. -
Keplan, David. “Anger and Ambivalence.” Newsweek, August 7, 1995, 24-28. Examines the contradiction between the growing popularity of capital punishment and the number of inmates who actually are put to death. -
Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. 2d ed. Burlington, Mass.: Butterworth-Heinemann, 2002. Contains excerpts from 25 court cases, including Gregg v. Georgia. Designed as an introductory text. -
_______. Death Penalty in a Nutshell. St. Paul, Minn.: Thomson/West, 2005. A clearly written overview of death penalty arguments and cases. Discusses special topics such as race and gender bias and execution of the innocent. -
Nygaard, Richard. “Vengeance Is Mine, Says the Lord.” America 8 (October, 1994): 6-8. Argues that revenge is the only reason for which a society uses the death penalty. -
Reitan, Eric. “Why the Deterrence Argument for Capital Punishment Fails.” Criminal Justice Ethics 12 (1993): 26-33. Examines the faults of the deterrence argument for capital punishment.
U.S. Supreme Court Abolishes the Death Penalty
U.S. Supreme Court Upholds the Constitutionality of Capital Punishment
Amnesty International Exposes the Cruelty of the Death Penalty
U.S. Supreme Court Rules on Execution of the Mentally Retarded and the Young