Putting Capital Punishment to Death

First of all, I believe that states with de facto moratoriums on capital punishment, and states who rarely use the death penalty, should not wait for the Supreme Court to change its stance. Based on previous cases, it is reasonable to conclude the Court does not seem very interested in making the death penalty unconstitutional. For example, in Furman v. Georgia (1972), the Court held that death penalty statutes in the United States constituted cruel and unusual punishment and, therefore, violated the eighth amendment to the Constitution — applied to states through the 14th amendment.

The Court in Furman focused on the fact that, at the time, death penalty statutes were so broad and ambiguous that they allowed jurors to consider factors irrelevant to the case — e.g. race — when sentencing a defendant to death. As a result, the mandate of Furman was the following: “Where discretion is afforded a sentencing body on a matter so grave as the determination of whether human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” (Gregg v. Georgia)

Furman’s decision led to a national de facto moratorium on capital punishment that came to an end in 1976, when the Supreme Court assessed new death penalty statutes limiting the level of discretion given to sentencers. In a series of cases known as the July 2nd Cases, the Court dismissed any possibility of considering that the death penalty in and of itself –– regardless of the circumstances –– violates the eighth and 14th amendments. It did so by declaring constitutional several state statutes, the most prominent one being Georgia’s.

In sum, the Supreme Court has made it clear that what violates the constitution is not the death penalty, but the manner in which it is determined and imposed. As a consequence, litigation in courts has focused — since 1976 — on reforming, but not outlawing, capital punishment. However, if states who barely impose the death penalty and states with de facto moratoriums on capital punishment exercise proactive measures — such as Connecticut — to ban the death penalty, the Supreme Court may change its tradition. If the trend of abolition keeps its consistency, lawyers may eventually be able to convince the Court that under the evolving standards of decency implied in the eighth Amendment, capital punishment is cruel and unusual punishment under all conditions.

Even though the death penalty is not the center of attention of most Americans, lawmakers should not ignore that this practice unjustly denies life — a fundamental right — to many of our citizens. First, the adversarial component of our criminal justice system seriously harms capital defendants. Since most defendants are individuals of low economic status, they do not have the resources to employ competent counsel. Capital defendants’ lawyers typically perform poorly from discovery — one of the first, but most important parts of a trial because it is the source of the case’s theory. Therefore, defendants are already doomed from the beginning of the proceedings. Although the sixth Amendment protects defendants from ineffective assistance of counsel, the truth is that the Court’s standards to determine an IAC claim are pretty vague, creating room for arbitrary decision-making, such as discrimination.

The vague “henious, atrocious and cruel” (HAC) aggravating circumstance included in almost every death penalty statute is another example of the arbitrariness in capital punishment. It is difficult to imagine a first-degree murder that will not fall within the HAC category. And although the Supreme Court has created a standard limiting the discretion in HAC provisions, the fact is that these standards are also subject to numerous interpretations. Another problem with the death penalty is the high level of discretion granted to judges and lawyers in the questioning of potential jurors — or voir dire — during the jury selection process. Basically, judges have the power to allow any question that does not mention race in explicit terms. Frequently, the prosecution makes questions that implicitly ask jurors about views on race and other controversial subjects. As a result, the judge allows it, the juror answers it and the prosecutor can then use a peremptory challenge to strike a juror that is sympathetic to the defendant — without having to justify the action. Finally, strong empirical evidence such as the one presented to but rejected by the Court in McCleskey v. Kemp shows that race plays a central factor in whether a defendant is sentenced to death or not.