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In the United States the death penalty has existed since the creation of the union, and well before that in colonial America. Public executions once drew large crowds in the 19th and early 20th century America, the last one taking place in 1936 with a crowd of 20,000 people to watch a single man be killed. In 1972, the Supreme Court effectively eliminated the practice of executions with their decision in Furman v. Georgia. Yet four years later, the same court reinstated the death penalty with their decision in Gregg v. Georgia. These cases are still carefully examined to determine whether the same issues from the 1972 case still hold true, and whether the terms on which it was reinstated are still being adhered to. Capital Punishment exists on a limited basis today, yet its constitutionality is still debated through the appellate proccess and in the court of public opinion. Opponents to this measure often contend that moral, racial and socio-economic class can bias juries on a fundamental level. After careful analysis of statistics on the death penalty, it can be shown that although the death penalty can appear to be prejudiced on these potential biases, the constitutionality of the issue remains intact. In 1971 the Supreme Court announced its intention to review four death penalty cases to answer the question, “Does the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” The cases that were under possibility for review were Furman v. Georgia, Jackson v. Georgia, Branch v. Texas and Aikens v. California. Aikens was taken off the list after the California Supreme Court declared the death penalty unconstitutional under its state’s constitution. The rest were consolidated under the Furman case for the high court’s review. The petitioners in each of these cases argued their cases on the basis of the standardless process which juries endure to assign a Death Penalty sentence. The result was a landmark decision. A majority, 5-4, determined ‘cruel and unusual punishment’ existed, but the decision had several loopholes. Most importantly, there was absolutely no consensus on the issue. Every individual justice wrote a separate opinion. The death penalty was not ruled unconstitutional under all conditions, so it was left to the states to create systems under their own jurisdiction. In a concurring opinion written by Justice Brennan, he held that since the death penalty is administered so infrequently, the offenses should be just as extraordinary themselves. The law of the land at the time of the decision allowed rapists and 2nd and 3rd degree murderers to be sentenced to die, and yet “the rate of infliction is characterized as a ‘freakishly’ or ‘spectacularly’ rate” Justice Stewart is quoted in his concurring decision as “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Justice White took a much more severe opinion towards the entire penalty. He stipulated that, “The imposition and execution of the death penalty are obviously cruel in the dictionary sense.” Chief Justice Burger, in no uncertain terms, left the loophole for state legislatures to create systems that regulate the sentencing of death penalty criminals. Over the next two years, several states attempted to create these systems, however ill advised they were. In 1974, the chairman of the Senate’s Judiciary Committee, Senator Corbet said, “we are trying to figure out what the Supreme Court says, so it will be constitutional. We are guessing – throwing darts at the board.” In 1973 President Richard Nixon responded the Supreme Court’s decision during a radio address. He asked the Attorney General, Richard Kleindienst, to create a capital punishment law that would survive judicial review. According to Nixon, this law would include punishment for criminals found guilty for assassination, treason, kidnapping, air hijacking and the murder of law enforcement officials and prison guards. By 1976, thirty-five states as well as the federal government had created new laws for capital punishment. Five states that enacted new laws were litigants in five earmarked cases by the Supreme Court to review these laws. The cases were Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina and Roberts v. Louisiana. Unlike the 1972 decision the court came to a clear majority decision of 7-2 in three of these cases. In the lead case of Gregg v. Georgia, an announcement that finalizes a main issue of the debate, Justice Stewart declared, “We now hold that the punishment of death does not invariably violate the Constitution.” Justice Stewart goes on in his decision to outline some history to the punishment, pointing to the existence of it for years both in America and England and at the time of the ratification of the Eighth Amendment, “capital punishment was a common sanction in every State.” The case however only dealt with the crime of murder, and according to Justice Stewart, “we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.” On the same day, the Supreme Court handed down a much narrower 5-4 decision finding mandatory sentencing laws unconstitutional. Justice Stewart, again writing the majority opinion, explained that historically mandatory sentencing laws led to juries acquitting guilty defendants because they did not believe they deserved to die, and that “mandatory laws did not allow juries to take mitigating circumstances into account.” Because of this decision over 170 prisoners in North Carolina and Louisiana had sentences commuted to life imprisonment. In 1977 the Supreme Court again limited the scope of execution of criminals. In Coker v. Georgia it declared that defendants found guilty of rape could not be put to death. This decision made it clear that the court would find the death penalty unconstitutional for every crime that did not involve the deliberate taking of human life. Although the Supreme Court has been petitioned by thousands of litigants, and heard hundreds of arguments on every possible issue, none of the cases are as significant as the two previously mentioned, Furman v. Georgia and Gregg v. Georgia four years later. Since 1977 when the death penalty was reintroduced to jurisprudence in the United States, 598 criminals have been executed under the states’ jurisdiction. Seven states have put to death less than ten criminals since 1977, and twenty-one states with execution statutes have never implemented it. By 1999, 38 states had capital punishments statutes in place, with varying methods in each state. There are only three routinely used forms of execution: gas, electrocution and lethal injection, although execution by hanging and firing squad are still legal. All of the six states that still allow these last two forms of execution, offer at least one alternative method. In Oklahoma, for example, the primary method is lethal injection, but state laws hold that if that form is ever held unconstitutional, lethal gas would be the standard, and if that is found unconstitutional as well, a firing squad could be used. Of the 98 executions that took place in 1999, 94 were carried out by lethal injection, three by electrocution and one by lethal gas. Although 38 states have capital punishment statutes, only 20 of them applied these laws in 1999. There are currently over 3600 criminals on death rows throughout the country. Every single one has committed murder. One of the minor Supreme Court cases over the years was Stanford v. Kentucky where the court held that it was not unconstitutional to execute youths that were 16 years old at the time of the crime. In 1999, two percent, or 28 criminals on death row were 17 years old or younger when they had committed their crimes. As it stands presently, the United States is one of only five countries to put to death children who committed their crime while they were under the age of 18. The other four are: Pakistan, Nigeria, Iran and Saudia Arabia. By the end of 2000, the youngest criminal sentenced to die was 18 years old, the eldest, 84, since 1976. Electrocution 149 10 (Sole method in 2 States) Gas Chamber 11 5 (All have L.I. as Alternative) Hanging 3 2 (All have L.I. as Alternative) Firing Squad 2 2 (All have L.I. as Alternative) Race of Defendants Executed since 1976 Defendant-Victim Racial Combinations Since 1976 White Victim Black Victim Latino Victim Asian Victim Current Statistics on Defendant-Victim Combinations Persons Executed for Interracial Murders Since 1976 One of the most intense debates over capital punishments is whether or not it is inherently unequal on the grounds of race. Prejudice from the beginning of the process has been marked as the primary offender for treating different races differently. These statistics show some important trends. For example, it is clear that more Caucasian Americans have been executed since 1976 than any other race. Many of the opponents of the death penalty claim that African American defendants whose victims are White are treated much harsher than White defendants with African American victims. The statistics above shows that there seems to be a trend to support this claim. Nearly 15 times more people executed were African Americans found guilty of interracial crimes than Whites found guilty of them. Many defendants on death row are too poor to hire a lawyer, and therefore must rely on court appointed attorneys that earn between $15 - $20 per hour. Over 90% of the inmates on death row fell into this category. Take for example the case of Federica Martinez-Macias who was represented in his capital case by a court appointed lawyer being paid $11.84 per hour. The Counsel’s general incompetence included failing to provide basic legal guidance during the trial such as, presenting an available alibi witness, relying upon incorrect assumptions on key evidence that simple research would have cleared up, and failing to interview and present witnesses to rebut the prosecution’s case. Some years later, a firm in Washington, DC took up this case pro-bono and Martinez-Macias received a competency hearing. After a full investigation into the facts and evidence, which revealed his innocence, Martinez won federal habeas corpus relief. A grand jury refused to re-indict him and he was released after nine years on death row. There are hundreds of examples of poor defendants on death row who have not yet received adequate counsel. How many of them had lawyers like Martinez’s? The more pressing question is whether or not the poor’s inability to hire adequate counsel is in violation of their basic constitutional rights of due proccess, equal protection and freedom from cruel and unusual punishment. Are poor people guaranteed these rights that seem inherent to those defendants who can afford counsel? Common sense dictates that the best lawyers will work for the best firms, and the adequate or substandard lawyers will be given with court appointed cases. Since Gregg v. Georgia and the removal of the moratorium, hundreds of people have been killed at the hands of popularly elected governments. In 2000, Governor Ryan of Illinois, put a moratorium on executions after evidence surfaced that might have cleared executed criminals of their crimes. In a recent national study of death penalty judgements of the past twenty-three years, the error rate was over 68%. In Furman Justice Brennan opined that standards need to be imposed to ensure the extraordinary punishment of death for extraordinary crimes. Now the nation faces another tough decision, allowing an inherently flawed system continue to put people to death, or to install a national moratorium that allows the process to be fixed. Bibliography: Works Cited Bedau, Hugo Adam. The Death Penalty in America: Current Controversies. Oxford University Press, New York, NY 1997. Bedau, Hugo Adam. “The Case Against the Death Penalty.” American Civil Liberties Union. Http://www.aclu.org/library/case_against_death.html. Death Row USA. National Association for the Advancement of Colored People. Morning Edition. National Public Radio. May 1, 2001. Morris, Cynthia and Bryan Vila. Capital Punishment in the United States: A Documentary History. Greenwood Press. Westport, CT. 1997. United States. Supreme Court, Justice Brennan, Stewart & White. Furman v. Georgia. 408 US 238 (1972) United States. Supreme Court, Justice Stewart. Gregg v. Georgia. 428 U.S. 153 (1976) Word Count: 2035
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