III. The Supreme Court Regulates Capital Punishment
For more than 150 years, the U.S. Supreme Court (hereafter, “the Court”) has exercised its responsibility to regulate capital punishment in the United States and its territories. Among the principal issues the Supreme Court considered in relation to capital punishment before 1968 was the means of administering the death penalty. The Court upheld the constitutionality of shooting (Wilkerson v. Utah, 1878), electrocution (In re Kemmler, 1890), and a second electrocution after the first attempt had failed to kill the offender (Louisiana ex rel. Francis v. Resweber, 1947). Currently, there are five methods of execution authorized: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection is the primary method of execution used by all executing jurisdictions in the United States.
Between 1968 and 1972, a series of lawsuits challenged various aspects of capital punishment as well as the constitutionality of the punishment itself. During this period, an informal moratorium on executions was observed, pending the outcome of the litigation, and no death row inmates were executed. Some of the suits were successful, and some of them were not. Finally, on June 29, 1972, the Supreme Court set aside death sentences for the first time in its history. In its decisions in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (hereafter referred to as the Furman decision), the Court held that the capital punishment statutes in those three cases were unconstitutional because they gave the jury complete discretion to decide whether to impose the death penalty or a lesser punishment in capital cases. Although nine separate opinions were written—a very rare occurrence—the majority of five justices (Douglas, Brennan, Stewart, White, and Marshall) pointed out that the death penalty had been imposed arbitrarily, infrequently, and often selectively against people of color. According to the majority, those statutes constituted “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments. (The four dissenters were Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist.) It is important to emphasize that the Supreme Court did not rule that the death penalty itself was unconstitutional, only the way in which it was being administered.
The practical effect of the Furman decision was that the Supreme Court voided the death penalty laws of some 35 states, and more than 600 death row inmates had their death sentences vacated and commuted to a term of imprisonment. Although opponents of capital punishment were elated that the United States had finally joined other Western industrialized nations in abolishing capital punishment either in fact or in practice, the joy was short-lived. By the fall of 1974, a total of 30 states had enacted new death penalty statutes that were designed to address the Court’s objections.
The new death penalty laws took two forms. Some states removed all discretion from the process by mandating capital punishment upon conviction for certain crimes (mandatory statutes). Other states provided specific guidelines that judges and juries were to use in deciding if death was the appropriate sentence in a particular case (guided-discretion statutes).
The constitutionality of the new death penalty statutes was quickly challenged, and on July 2, 1976, the Supreme Court announced its rulings in five test cases. In Woodson v. North Carolina and Roberts v. Louisiana, the Court rejected “mandatory” statutes that automatically imposed death sentences for defined capital offenses. However, in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida (hereafter referred to together as the Gregg decision), the Court approved several different forms of guided-discretion statutes. Those statutes, the Court wrote, struck a reasonable balance between giving the jury some guidance and allowing it to consider the background and character of the defendant and the circumstances of the crime. The most dramatic effect of the Gregg decision was the resumption of executions on January 17, 1977, when the state of Utah executed Gary Gilmore (at his own request) by firing squad.
What the Court found especially appealing about the guided-discretion statutes approved in Gregg is that judges and juries are provided with standards that presumably restrict, but do not eliminate, their sentencing discretion. Specifically, judges and juries, in most states, are provided with lists of aggravating and, at least in some states, mitigating factors. Aggravating factors or circumstances are facts or situations that increase the blameworthiness for a criminal act. Mitigating factors or circumstances are facts or situations that do not justify or excuse a criminal act but reduce the degree of blameworthiness and thus may reduce the punishment. The Court has since ruled that judges and juries must consider any mitigating circumstance offered by the defense, whether it is listed in the statute or not. (Read more about Capital Mitigation and Aggravating and Mitigating Circumstances in Capital Cases)
Besides the guided-discretion statutes, the Court also was optimistic about two other procedural reforms: bifurcated trials and automatic appellate review. A bifurcated trial is a two-stage trial—unlike the one-stage trial in other felony cases—consisting of a guilt phase and a separate penalty phase. If, in the guilt phase, the defendant is found guilty as charged, then at the penalty phase, the jury must determine whether the sentence will be death or life in prison (There are no other choices except, in most death penalty states, life imprisonment without opportunity for parole.). All of the procedures of due process apply to both phases of the bifurcated trial.
Currently, 35 of the 36 states with death penalty statutes provide for automatic appellate review of all death sentences, regardless of the defendant’s wishes. South Carolina allows the defendant to waive sentence review if the court deems the defendant competent; also, the federal jurisdiction does not provide for automatic appellate review. Most of the 35 states automatically review both the conviction and the sentence. Generally, the automatic review is conducted by the state’s highest appellate court. If either the conviction or the sentence is overturned, then the case is sent back to the trial court for additional proceedings or for retrial. It is possible that the death sentence may be reimposed as a result of this process.
Some states are very specific in defining the review function of the appellate courts, while other states are not. Although the Supreme Court does not require it (Pulley v. Harris, 1984), some states have provided a proportionality review, in which the appellate court compares the sentence in the case it is reviewing with penalties imposed in similar cases in the state. The object is to reduce, as much as possible, disparity in death penalty sentencing.
In addition to the automatic appellate review, there is a dual system of collateral review for capital defendants. In other words, capital defendants may appeal their convictions and sentences through both the state and the federal appellate systems.
Some death row inmates whose appeals have been denied by the U.S. Supreme Court may still try to have the Court review their cases on constitutional grounds by filing a writ of habeas corpus, which is a court order directing a law officer to produce a prisoner in court to determine whether the prisoner is being legally detained or imprisoned. Critics maintain that abuse of the writ has contributed to the long delays in executions (currently averaging more than 10 years after conviction) and to the high costs associated with capital punishment.
In decisions since Gregg, the Supreme Court has limited the crimes for which death is considered appropriate and has further refined death penalty jurisprudence. In 1977, in the cases of Coker v. Georgia and Eberheart v. Georgia, the Court held that rape of an adult female (in Coker) and kidnapping (in Eberheart), where the victim was not killed, do not warrant death. Those two decisions effectively limited the death penalty to those offenders convicted of capital, or aggravated, murder.
In 1986, in Ford v. Wainwright, the Court barred states from executing inmates who have developed mental illness while on death row, and in 2002, in Atkins v. Virginia, the Court held that it is cruel and unusual punishment to execute the mentally retarded. In the 2005 case of Roper v. Simmons, the Court effectively limited capital punishment to offenders who are 18 years of age or older at the time of their offenses. Another death penalty decision of the Supreme Court is the 1987 case of McCleskey v. Kemp, in which the Court held that state death penalty statutes are constitutional even when statistics indicate that they have been applied in racially biased ways. The Court ruled that racial discrimination must be shown in individual cases.