Which amendment authorizes capital punishment

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary.

Between and , men were executed for rape, of whom — 90 percent — were black. A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks.

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mids, about half of those on death row at any given time have been black. More striking is the racial comparison of victims. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone.

Young black men are fifteen times as likely to be murdered as young white men. So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that "the average odds of receiving a death sentence among all indicted cases were 4.

Baldus et al. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient.

McCleskey would have to prove racial bias in his own case — a virtually impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias In , the U. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty.

The GAO concluded : "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process Texas was prepared to execute Duane Buck on September 15, Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American.

The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires. These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person.

Of the white defendants executed, only three had been convicted of murdering people of color. Our criminal justice system essentially reserves the death penalty for murderers regardless of their race who kill white victims.

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides.

Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse. Since , only 51 women have been executed in the United States 15 of them black.

Discrimination against the poor and in our society, racial minorities are disproportionately poor is also well established. It is a prominent factor in the availability of counsel. Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried. As Justice William O. Douglas noted in Furman , "One searches our chronicles in vain for the execution of any member of the affluent strata in this society" US The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers.

Justice John Marshall Harlan, writing for the Court in Furman , noted "… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die….

Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will.

No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce. Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence.

Even when they do comprehend, jurors often refuse to be guided by the law. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law. Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end.

But when sentencing discretion is used — as it too often has been — to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice. Mindful of such facts, the House of Delegates of the American Bar Association including 20 out of 24 former presidents of the ABA called for a moratorium on all executions by a vote of to in February The House judged the current system to be "a haphazard maze of unfair practices.

In its survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime. The ALI, which created the modern legal framework for the death penalty in , indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice. Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in , years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.

Since , in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder.

Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes — including capital crimes — and that some have been executed. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country — as well as who have been executed.

Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant's previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others.

And when the system does go wrong, it is often volunteers from outside the criminal justice system — journalists, for example — who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:.

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington.

Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off. Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire. Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution.

The condemned prisoner is led — or dragged — into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness.

In , the electrocution of John Evans in Alabama was described by an eyewitness as follows:. Evans' body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently.

The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr.

Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead. Evans was administered a second thirty second jolt of electricity. Since , 25 states enacted 66 new laws addressing state systems of capital punishment. Trends include expanding or limiting aggravating factors, modifying execution methods and procedures, changing trial and appellate procedures, modifying laws to comply with litigation outcomes and repealing the practice all together.

Lethal injection is currently the primary method of execution in 28 of the 29 states that authorize executions. Texas was the first state to use the method, in In , South Carolina became the first state to depart from using lethal injection as a primary execution method.

It is the only state in which electrocution is primary, with firing squad and lethal injection, authorized by statute as secondary methods of execution. In addition to South Carolina, 15 other states have a secondary method of execution authorized by statute. Secondary methods of execution include electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad. For example, see La Grand v. Stewart, F. The purple states only have a single method: lethal injection.

Blue states have secondary methods of execution. Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense? For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation? Third, does the Cruel and Unusual Punishments Clause prohibit the death penalty?

Many argue that capital punishment fails to advance any public good, that it is of a past era, and it should be eliminated. Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, and that the death penalty may deter others from committing atrocious crimes. They also point out that the punishment is authorized in a majority of states, and public opinion polls continue to show broad support for it.

There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them.

This essay concerns the original meaning of the Cruel and Unusual Punishments Clause. It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world.

In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change. Dulles This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. In response to the non-originalist approach to the Constitution, some judges and scholars — most prominently Justices Scalia and Thomas — have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs.

To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: 1 What standard should the Court use in deciding whether a punishment is unconstitutionally cruel? Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: 1 The standards of cruelty that prevailed in , the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual.

If a punishment was acceptable in , it must be acceptable today. A life sentence for a parking violation, for example, would not violate the Constitution. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category. In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less.

The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause:.

Rather, the benchmark is longstanding prior practice. Witnesses watched as guards strapped the dazed youth to the massive wooden chair and attached electrodes to his body. He groaned, his lips protruding from under the hood covering his face, and he strained so violently against the restraints that the chair came off the floor. Let me breathe. Finally, the parish sheriff halted the macabre proceeding, and Francis was returned to the holding cell. He showed no ill effects other than a rapid heartbeat.

The execution was rescheduled. No man should have to go to the chair twice. The voice of humanity and justice cries out against such an outrage. Is the state of Louisiana trying to outdo the caesars, the Nazis? Supreme Court. By now, his ordeal was national news. The argument before the highest court was straightforward: the Fourteenth Amendment made the Eighth Amendment binding on the states, and making Francis face the chair again was cruel and unusual punishment.

Two months later, the justices decided narrowly, 5 to 4, against Willie Francis. Four other justices believed that repeated attempts to execute were cruel by definition. It was a form of torture, one justice wrote, akin to burning at the stake. The attorneys would not give up, however, and twice more filed appeals to the Supreme Court.

Both times, the justices refused to hear their arguments but the last time the appeal was dismissed without prejudice, which meant the Court might reconsider in the light of new evidence that one of the executioners had been drunk and abusive toward Francis before bungling the job. But Willie Francis was tired of fighting.

More than a year after his earlier date with death, he sat in the chair again. This time, his body went to an unmarked grave in the coffin his father had bought for his first execution. From the time Willie Francis took his second walk to the chair until , the Supreme Court heard many cases that challenged the constitutionality of executions.

During this time, it overturned the death penalty in numerous individual cases, although the justices never declared capital punishment itself to be unconstitutional. It had only been misapplied in the particular cases before them. During the s, the Supreme Court set new standards for capital punishment. In Furman v. Georgia , by a slim 5-to-4 majority, the justices decided that executions as practiced were unconstitutional because the judge and jury lacked specific guidelines to ensure fairness in sentencing.

States responded by establishing a two stage process for capital cases. One stage decided guilt or innocence, and the second stage allowed juries to consider aggravating or mitigating circumstances that would lead to a more informed decision about punishment. This change won Supreme Court approval in Gregg v. Georgia , and most death-penalty states use this process today. Mandatory death sentences, that is, convictions that automatically require executions, are unconstitutional; the punishment should fit the crime.

The s and s brought further guidelines: states could not execute inmates who became, or remained, insane while on death row although they could be executed if they regained their sanity ; states could not mandate death for murders committed in prison; states could exclude opponents of the death penalty from serving in capital cases; and the list continued. Unwilling to declare the death penalty unconstitutional—after all, it was mentioned in the Fifth Amendment, passed at the same time as the Eighth Amendment, so the framers clearly considered it an acceptable punishment—the justices sought ways to ensure its fair application, if not limit its use.

One method was to look to what states permitted as punishment to learn whether a consensus of opinion existed as to which punishments were cruel and unusual.

By this standard, the justices decided in that executing mentally retarded inmates was unconstitutional; in , they reached the same conclusion for juveniles who committed a capital crime while younger than eighteen. We as a society are still deciding whether capital punishment remains morally acceptable and, if so, under what circumstances. The United States is one of only four countries—the other three are China, Saudi Arabia, and Iran—that uses execution regularly, but we are no longer as convinced of its appropriateness as we once were.

Currently, twelve states and the District of Columbia have abolished the death penalty.