The Death Penalty – Yes and No

Is the death penalty unconstitutional because it violates the 8th Amendment’s prohibition against “cruel and unusual punishment”? According to the U.S. Supreme Court the answer is “Yes” — and “No.”  In other words, “It depends.”

In Furman v. Georgia, which was decided this week (June 29) in 1972, the Supreme Court ruled that the death penalty was unconstitutional and did violate the 8th Amendment because it was applied in “arbitrary and capricious ways.”  African-Americans and other minorities, the court noted, were much more likely to get the death penalty than whites, not only because of the color of their skin but also because (often a result of the color of their skin) of the quality of their legal representation.

William Furman, the defendant in the case, was (literally) a case in point.  While Furman was burglarizing a home, he tripped while trying to flee and his gun accidentally went off, killing a resident. He was tried for murder, found guilty, and the jury gave him the death sentence.  But as the Supreme Court noted, accidental shootings would not normally merit a death sentence, especially if the defendant was white.  Thus was Furman’s sentence “arbitrary and capricious.”

What the court found legally objectionable was when those states with the death penalty did not give sentencing guidelines to juries in murder trials, meaning that juries had unlimited discretion to decide between a prison sentence and the death penalty.  This led to disparities when sentencing different groups of citizens, which was unconstitutional because it violated both the 8th Amendment’s “cruel and unusual punishment” clause and the 14th Amendment’s requirement that “due process of law” be applied equally in all cases.

Furman v. Georgia was a victory for anti-death penalty advocates, but only a temporary one because the ruling also suggested that if states subsequently adopted standardized sentencing guidelines for juries, the court would be amenable to reconsidering the constitutionality of the death penalty.  Sure enough, many of the states that had allowed the death penalty prior to Furman quickly passed legislation with such sentencing guidelines.  Those guidelines included restrictions on the types of murder for which the death penalty could be imposed, and instructions on what factors judges and juries must consider (factors such as accidental shootings) when deciding between incarceration and death.

The Supreme Court was then as good as its word, taking up the case Gregg v. Georgia four years later.  In Gregg the court ruled that with proper sentencing guidelines in place, the death penalty passed constitutional muster, and as it happened, the first person receiving the death penalty under the new guidelines was a white man, Gary Gilmore, who was executed in Utah for murdering a motel clerk.