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Example research essay topic: U S Supreme Court Cruel And Unusual - 1,840 words

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Rethinking Death Penalty The abandonment of executions in America has not been adequately explained from a historical standpoint. A number of factors operating within the judicial system appear to have played a part. These include increasing receptivity of federal courts to appeals in capital cases, growing concern among lawyers for the rights of criminal offenders, mounting reluctance of juries to hand down the death sentence and of governors and state penal authorities to schedule and carry out executions. These changes, in turn, may have been stimulated by accumulating scientific evidence on the application and effectiveness of the death penalty and changing moral standards in this country and abroad.

The United States Supreme Court declared in 1972 that the death penalty was "cruel and unusual" punishment because it had been used in a rare, arbitrary, and discriminatory fashion. Yet the Court's decision in Furman v. Georgia was not definitive in character. The U.

S. Supreme Court first ruled in 1972 in Furman v. Georgia that state laws that delegated to the jury the choice between imprisonment and execution for specific crimes without any clear guidelines were unconstitutional as cruel and unusual punishment in violation of the Eighth Amendment (Furman v. Georgia). Aggravating factors that could allow the consideration of the death penalty included the commission of multiple homicides, homicide committed during other felonies, torture, and contract killings. Mitigating circumstances that could allow juries and judges to choose imprisonment rather than death included youth, mental and emotional disturbance, and other factors.

There was no majority opinion for Furman, but Justice Potter Stewart captured the thought of most justices when he wrote, "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. " The Eighth Amendment, he explained, "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. " In this nonconformist opinion joined by four other members of the Court, Chief Justice Warren Burger argued that, while "the Eighth Amendment forbids the imposition of punishments that are so cruel and inhumane as to violate society's standards of civilized conduct, " the amendment "most assuredly does not speak to the power of legislatures to confer sentencing discretion on juries. " In his opinion, a long history of acceptance, the legal system's "basic trust in lay jurors, " and "the primacy of the legislative role" in fixing criminal punishments rendered the death penalty constitutional, even when imposed pursuant to unguided-discretion sentencing schemes. Furman was issued as a per curiam decision, on a 5 - 4 voting to reverse the death sentence. All nine justices wrote a separate opinion to explain their reasoning. Though five justices voted to reverse the death sentences, their compatible opinions revealed that it was a shaky alliance. Justices William O. Douglas, William J.

Brennan, Jr. , and Thurgood Marshall doubted that any application of the death penalty could avoid being a cruel and unusual punishment. Justice Douglas concluded that the death penalty was disproportionately applied to people who were poor and socially disadvantaged. Justice Douglas complained that "people live or die, dependent on the whim of one man or of twelve" (Furman, at 253). His specific objection was that, given its discretionary nature and the history of discrimination in the United States, the American system of criminal justice necessitated that a disproportionate number of those sentenced to die would be black and poor. Justice Stewart protested the continuation of "this unique penalty" within a process that permitted it to be "so wantonly and so freakishly imposed" (at 309). Concluding that the death sentence is cruel and unusual "in the same way that being struck by lightning is cruel and unusual" (at 309), he did not join Douglas in stressing the civil rights argument.

Justice White, noting the presumed retributive and deterrent attributes of capital punishment, maintained that its infrequent imposition in contemporary American society converted the penalty into a "patently excessive and cruel and unusual punishment" causing "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes" (at 312). Only Justices Brennan and Marshall were inclined to refute capital punishment on moral grounds. Brennan argued that "at bottom... punishment is 'cruel and unusual'... if it does not comport with human dignity" (at 270) and concluded: "The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity... An executed person has indeed 'lost the right to have rights'" (at 290).

Marshall, in the course of the longest single reply of the day, chose to admonish those who would justify capital punishment for its retributive effects by writing: "The history of the Eighth Amendment supports only the conclusion that retribution for its own sake is improper" (at 345). Even the four dissenters had a difficult time-reaching agreement. Chief Justice Burger and Justice Blackmun, while admitting what Blackmun termed a "distaste, antipathy, and, indeed, abhorrence for the death penalty" (at 405), reasoned that it was not the justices' job to allow their "personal preferences" (at 411) to interfere with a matter better left to legislative and executive authorities. Justices Powell and Rehnquist omitted the personal apologies but agreed with Burger and Blackmun on the need for judicial restraint. Thus, in 233 pages and nine individual opinions, the Court finally addressed the issue of capital punishment at some length. However, it still remained unclear what precedent this decision established, and what guidelines for national and state legislatures have been set to follow.

Three out of the five-man majority struck down capital punishment because of the caprice evident in the sentencing process. They did not conclude, however, that whim was an inherent part of the process. This left the impression, implicit to be sure, that statutes conceivably could be drafted with the ability to narrow discretion to constitutionally acceptable limits. Also, the question of mandatory death sentences remained. They certainly would eliminate the caprice, but at the expense of reviving a legal practice abandoned as unfair by American jurisprudence in the nineteenth century. It was inevitable that Furman would cause confusion.

Some states, including Georgia, Texas, and Florida, attempted to meet the Court's objections by setting up firmer and more specific rules to govern the administration of capital cases. Part of the new Georgia process, for example, required a crime to be "outrageously or wantonly vile, horrible and inhuman" to qualify for capital status. It also established separate trial and sentencing stages with the latter focusing on the specific circumstances of the offense and the personality of the offender. Only if all of these conditions were satisfied could the death penalty be imposed. Perhaps as a corollary to this development, the Court in Furman ruled for the first time that certain aspects of the administration of capital punishment were unconstitutional -- although the "actual scope" of the decision, in Chief Justice Burger's words, was "not entirely clear" (at 397). The defendant's death sentence was overturned ostensibly on the grounds of a standard less, discretionary sentencing process thought to be a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

But this conclusion represented at best a compilation of a majority of the justices' views offered in five separate opinions, none of which matched precisely any other. The Court's decision, by a one vote margin, in Furman v. Georgia appears to have blocked the further use of capital punishment under statutes providing for the imposition of the death penalty at the discretion of the jury. Moreover, it prevented the sacrifice of some six hundred prisoners on death row at the time of the decision, and it did so without necessarily implying that the thousands of previous executions in America were unconstitutional. That is to say, the Court did not rule that capital punishment per se was unconstitutional, but only that it had become unconstitutional -- cruel and unusual -- as a result of the rare and arbitrary way in which it had recently been imposed.

So most of the Supreme Court's precedents in death penalty cases govern chiefly by the consent of a current court majority. More than most other areas of constitutional law, death penalty jurisprudence is subject to quick changes as the personnel of the Court or the views of sitting justices change. There is more volatility, and less long-term predictability, in the Court's death penalty work than in almost any other area of its continuing concern. All this may be bad news for those who hope for principle-based jurisprudence from the nation's supreme judicial court, but it also means that radical change might always be just around the corner in the tangled legal pathways of the death penalty. By the same token, the Court's decision did not preclude the subsequent use of the death penalty, if statutes could be formulated to meet the objections of the Furman majority. In fact, in view of the Court's concern about the discretionary character of the death penalty, a number of states shortly began considering and formulating capital statutes designed to limit jury discretion by specifying standards and procedures to be followed in determining punishment, or to remove jury discretion altogether by making the death penalty mandatory upon conviction (Bed 1973 a).

The constitutionality of these efforts will surely be tested in the U. S. Supreme Court. Although the Court's decision has had a decisive impact on the present status of capital punishment in America, its future effect is less certain in view of current efforts to reformulate capital statutes to meet the Court's objections and the possibility that future appointments to the Court, given the one man majority in Furman, could tip the balance back in favor of the death penalty.

It is certain, however, that the direction of future Court decisions extending or further restricting the availability of the death penalty will depend heavily on developing scientific evidence of the sort that has played an important part in the series of cases leading up to and including Furman. Indeed, Chief Justice Burger in his dissenting opinion complained of the insufficiency of empirical data in support of the majority's claim .".. that the present system of discretionary sentencing in capital cases has failed to provide evenhanded justice... " (Furman v. Georgia 1972, 399). In this vein, he called for more extensive research, saying, in particular, that "data of more recent vintage is essential. " (Furman v. Georgia 1972, 390 n. ) While a rightward-leaning Supreme Court can function as a deterrent to increasing federal court regulation of death cases for the duration of its time in the majority, it does not seem likely that the current Court or its immediate successors will build a set of principled precedents that would restrain judicial activism in death cases beyond the tenure of the Court majority that supports restriction.

The current accumulated constitutional law on the death penalty is itself a study in contradictions. References: Furman v. Georgia. 408 U. S. 238 (1972).


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