Is the Death Penalty Cruel and Unusual?

The constitution and the bill of rights guarantee's that as American's we cannot be punished if that punishment is considered cruel and unusual. However, who defines what is cruel and unusual? A lot of American's feel that the death penalty is cruel and unusual. That feeling is even stronger when you ask the rest of the industrialized world. However, is it truly cruel and unusual? The Supreme Court says no it is not. But why do they argue this point? This article will look at the main court cases and reasoning behind the decisions that have allowed the death penalty to continue in the United State.

First off, we need to look at the main case that the courts used to lay down their arguments for the death penalty, and that is Gregg v Georgia. In this case, Justice Stewart put forward the court's decision. He argued for the death penalty on the basis of five main points. He first argued that historically it has been proven that the death penalty can and will be used. All we need to do to see if the death penalty is justified is to look back at our history. Not only that, but in the constitution itself, it tells us that the death penalty can be used. The constitution tells us that we cannot take life, liberty, or the pursuit of happiness without the due process of the law. So once that person has gone through the due process, we can take that life away from them. Also, Stewart looks at the contemporary values of our nation. We should do what the people perceive as right. Thirty-five states adjusted their laws in 1972 to adapt to the courts ruling, so they could continue to have the death penalty. That shows that Americans want the death penalty. This argument also goes over to the democratic view. If the majority of people want the death penalty, then we should listen to the majority, and do what they want. Justice Stewart also talks about the death penalty as a deterrent. This argument is a bit of a stretch. However, his best argument is his last one, about retribution. He shows that the death penalty does serve a purpose. That purpose is retribution. In the opinion he states, "Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." This is an excellent argument for the death penalty.

There was some dissent in this case of course. Justice Brennen thinks the death penalty is cruel and unusual. He says that when we put someone to death, we are treating that person like an item. When we start to treat people like an item it is cruel. Also, there is no valid purpose for the death penalty. He argues that life imprisonment will do just as good of a job, and is not cruel. Justice Marshall also put forth a dissenting opinion. He argued that the people in America are not fully informed, and therefore the death penalty is inconsistent. He basically is arguing that the people are stupid and we should do what more intelligent people would do, and strike down the death penalty. He thinks that he is better then most people I guess.

After Gregg v Georgia, there were some modifications to the death penalty. The first of those modifications was that of the mandatory death penalty for 1^st degree murder. There were two cases that the courts were ruling on here, Woodson v North Carolina, and Roberts v Louisiana. The courts ruled that a mandatory death penalty is unconstitutional. We must allow juries to have some discretion in their decisions. If a person is against the death penalty, they might not vote to convict the person because that person then will be put to death. The courts like the idea of a bifurcated proceeding. There is a trial that will determine guilt or innocence, and then if that person is convicted, there is a trial that will determine the punishment of that person. This is what the courts like; we need to give the juries enough discretion to determine ground. There was some dissent to this opinion. Justice White argued that we should not bring in people to talk about the character of the person convicted of the murder, because it is irrelevant. Once that person is convicted, we should not allow any other evidence into the courtroom. They should only look at the information that was available to them during the original trial. He believes that court is being very inconsistent. First the jury has too much discretion, then not enough. We need to take a position and stick with it.

Discrimination with the death penalty is the next thing we need to look at in this paper. In McCleskey v Kemp, the defendant was convicted of murder, and given a death sentence. He appealed on information that the death penalty was discriminatory in its application. However, most murders that are committed in race are "family" murders. This means that the murderer and the victim usually knew each other. When a black killed a white, it usually happened when the murderer was committing a crime. Those are the kind of killings that are more apt to receive the death penalty. In fact, once you put the crime into the picture, the death penalty is extremely fair in its application. The courts responded to McCleskey's argument by saying that they are not sociologists. Studies come out all of the time, and they contradict each other. He would have to show that the jury itself was discriminatory in order for his case to be thrown out.

The next area on the death penalty is that of Juveniles. The court again ruled on two cases-Stanford v Kentucky & Wilkins v Missouri. They ruled that it is not unconstitutional to give the death penalty to someone who is a juvenile. The court argued that there is no consensus in the states to prove it is cruel or unusual. Secondly, historically it has been used on juveniles. In fact, when the constitution was written, people as young as fourteen received the death penalty. There was some dissent to this however. Justice Brennen argued that the death penalty to juveniles is rejected by most states. Justice Scalia also says that the contemporary values of our society have changed, and that they do not support the death penalty to juveniles. Also, Scalia argues that there is no purpose for giving the death penalty to juveniles. It does not deter anyone, and it gives us no use for retribution.

The final area we are going to look at is that of allowing the evidence of family impact during the punishment phase of the trial. In Payne v Tennessee, the prosecuting attorney brought up the effect that the murders had on the family involved. The courts ruled that this evidence was allowed. The courts argument was that Payne murdered a mother, her daughter, and seriously wounded her son all in the same room. The son lived, so the effect of the murders on the boy is part of Payne's personal responsibility and moral guilt. There were two previous cases that the courts ruled on that did not allow this type of evidence. In Booth v Maryland and South Carolina v Gathers, the court ruled both times that this evidence was irrelevant, and should not be used. However, the court ruled that any violation of Payne's rights under these were minimal at best. So the court is changing its position, however, it is being very careful on how they do it. There was a lot of dissent to this case. Justice O'Conner flat out states that it is per se unconstitutional to allow this evidence. Justice Scalia shows that we should not overrule a previous decision that was not that long ago. Justice Souter says that it is morally wrong to admit this type of evidence. Justice Marshall says that nothing has changed since the ruling of Booth or Gathers. Since there has been no change, we should not overrule that decision.

Over the years, the courts have found a lot to argue over the death penalty. However, they have found common ground that it is per se constitutional. Does this mean that the Death Penalty will never be repealed? No. The Supreme Court has changed its mind on several subjects throughout the years and whenever there is a shift in philosophy on the bench, there is a chance for change. Whether or not that means they will overturn the death penalty or not remains to be seen. Until then, people will continue to argue over its constitutionality and morality.