From the 1930s through the 1960s, the number of executions in the United States continued in a steady decline until 1967, when the use of the death penalty was suspended altogether pending a decision by the Supreme Court concerning its constitutionality. At issue was whether the use of the death penalty was a violation of the Eighth Amendment’s prohibition against the federal government’s use of “cruel and unusual punishment” and the Fourteenth Amendment’s provision for due process under the law. The challenge to the constitutionality of the death penalty in Furman v. Georgia was put forward at a time when 39 states allowed for its use.
When the Supreme Court finally rendered its decision in 1972, the justicns ruled 5-4 that the death penalty, as administered at the time, was in fact unconstitutional. 9.” , court found that the death sentence was handed down at the discretion of the judge and juiy, with very few, if any, guidelines issued as to when it would be consistent with punishment given for similar crimes. The use of such “standardless discretion” left open the possibility for widespread discrimination and inconsistency in the method of application of the death penalty, whereby those who were equally deserving of harsh punishment might nevertheless escape it. Justice Potter Stewart compared this capricious application of the death penalty to “being struck by lightning.” For this reason, the majority of the justices ruled that the use of the death penalty must be abolished until states rewrote laws and developed guidelines for juries that would promote and ensure the fair and uniform application of the death sentence. However, while the justices found fault with the way the death penalty was applied, they did not fmd fault with the penalty itself. Only two of the justices, Marshall and Brennan, argued that the death penalty should be abolished because it is cruel and usual by its very nature.
In response to the Supreme Court’s ruling, several states quickly adopted guidelines for issuing a sentence of death. Some states did this by making the death penalty mandatory for certain crimes, while others adopted a two-part trial system. The first trial served to determine the guilt or innocence of the defendant. The second trial would determine sentencing, and included a process for instructing the jury with respect to established guidelines for weighing aggravating factors against mitigating :actors.
In 1976, the Supreme Court’s Gregg v. Georgia decision upheld the death penalty in states where the two-part trial proceedings were employed, but struck down the death penalty where it was mandatory for certain crimes. While the court did not want juries to have complete discretion in sentencing death, it also did not want to go too far in the opposite direction and not allow juries any discretion. With its ruling, the justices affirmed that the death penalty does not, in and of itself, violate the Constitution.
As it now stands, state legislatures have the power to decide which penalties best serve society and the aims of punisbrrwmt. There are 36 states with statutes making provisions for the death penalty. The minimum age of eligibility ranges from 10-17 in states that allow for the execution of minors. In addition, the federal crime bill currently under consideration in the Congress would include a number of new provisions for the use of the death penalty by federal as well as military courts. The retention or abolition of the death penalty is a matter for the will of the people. In this case, it is a matter of life and death.