A Judicial Framework to Abolish the Death Penalty in the United States

Today, the United States criminal justice system represents the way in which racism has been institutionalized in the foundation of this country. Riddled with race disparities that are so often ignored by the legislature and judiciary, this system disproportionately prosecutes minorities. Though it has become increasingly condemned, the Courts have too often resorted to the use of capital punishment, therefore disproportionately executing minorities. As a result, the judicial system has been increasingly reliant on the constitutionality of the 8th Amendment and the way this Amendment intersects with capital punishment politics. The largest problem, however, lies in the Court’s inability to recognize race as the primary factor representing 8th Amendment violations in these circumstances. This piece explores how different definitions of cruel and unusal punishment affects the judicial framework for abolishing the death penalty in the United States. In Section 2, we explore the history of capital punishment and the implications of the brief moratorium instituted in 1972. Section 3 dives into examples of judicial limitations imposed by the Supreme Court and the relationship between the 8th Amendment and national consensus that allows the court to come to their decision. Finally, Section 4 considers the invisisbility of race in capital punishment litigation and its effect on the future deliberations of the death penalty. By analyzing the ways the 8th Amendment is already used in capital punishment cases, it becomes clear that the factor of race is always ignored. Once the United States judiciary recognizes the inherently racist and biased system of the capital punishment sytem, the country will see real strides towards abolition.

Racism in the United States is structurally intertwined within the functions of the criminal justice system. Though the most well-known examples of structural racism may be the era of slavery or Jim Crow Laws, the deeply racist history of capital punishment can be traced to the being of the New Republic. Even during the seventeenth century, when Black people represented a very small portion of the population, Black execution rates significantly exceeded White execution rates per capita, though White executions held the majority (Steiker and Steiker 245). As the slave population increased throughout the eighteenth century, so did the use of capital punishment in the South and the discrepancies in execution rates. For Black citizens at this time, the severity of the crime did not necessarily determine the severity of the sentence. Therefore, despite the demographics of the population, the executed majority in the United States shifted from the White population to the Black population (246). However, as public opinion surrounding the morality of capital punishment swept through the nineteenth century, the North and the Midwest attempted to move towards abolition. The South, on the other hand, actually abolished death sentences for White people, further cleaving those disproportionate rates (247). Though race was

becoming a visible determinant in the criminal justice system during the late nineteenth century, the conversation surrounding thes sanctity of the death penalty was more so focused on the methods of execution. In 1878, the court considered the constitutionality of Utah’s death by firing squad method, explicitly alluding to the method as a violation of the 8th Amendment for the first time (Wilkerson v. Utah, 99 U.S. 130). Though the decision could not assign the extent to which the 8th Amendment applied to these issues of the law, this case set the precedent for the legislative relationship between capital punishment and the 8th Amendment. In the judicial system, this relationship has become reliant on national public opinion. In 1910, defendant Weems was charged with fraud and sentenced to 12 years of hard labor (Weems v. United States, 217 U.S. 349). Throughout his defense, Weems referred to the 8th Amendment and argued that his sentence was unconstitutional as it was cruel and unusual. The Supreme Court, “acknowledged the Eighth Amendment to be ‘progressive ... [and] may acquire meaning as public opinion becomes enlightened by a humane justice’” (Anderson 1-33). This case determined the way in which cruel and unusual punishment could be defined and the way that future court rulings should depend on public opinion. As the public and judicial tensions surrounding the constitutionality of the death penalty has risen, the Court began limiting the uses of the death penalty. The first introduction to these limits concerns the case of Furman v. Georgia.

In the 1972 case of Furman v. Georgia, Furman was sentenced to death for burglarizing a home and accidentally shooting someone in the act.The defense challenged the constitutionality of Furman’s sentencing. The Supreme Court voted in favor of Furman, explaining that his original sentence violated the 8th Amendment. This decision prompted the four year long moratorium on the death penalty in the United States, during which the Court would exam the constitutionality of capital punishmen under all circumstancest (Furman v. Georgia, 408 U.S. 238). Though Furman v. Georgia provided the Court with an opportunity to abolish the death penalty completely, the variance in concurring opinions reflected the Courts resistance to do so. In their concurring opinions of Furman v. Georgia, Justices Brennan and Marshall were the only members of the Supreme Court who demonstrated the belief that the death penalty is unconstitutional across all cases. Both Justices made explicit references to the institutionally discriminatory history of the death penalty. Justice Marshall exposed the inherent burden that, “falls upon the poor, the ignorant, and the underprivileged members of society… who are least able to voice their complaints against capital punishment” (Keys and Maratea 1). Justice Douglas even went as far to say that the, “arbitrariness [of the death penalty] is pregnant with discrimination” (Keys and Maratea 1).These Justices explicitly referenced the disproportionately racist system that is capital punishment in the United States. Despite the efforts of these Justices to uncover the fundamental constitutional violations of capital punishment, this moratorium did not last long. In a 7-2 decision, the Supreme Court reinstated the death penalty in 1976.

The 1976 case of Gregg v. Georgia reached the Supreme Court during the moratorium of the death penalty (Gregg v. Georgia, 428 U.S. 153). The state of Georgia sentenced Gregg to death for armed robbery and murder. The decision of the Supreme Court to uphold Georgia’s death sentence in this case uplifted the suspension of the death penalty in the United States. The majority opinion stated that the death penalty did not violate the 8th Amendment in all circumstances. By reinstating the death penalty, the Court dismissed Justices Brennan and Marshall’s concerns that the system is flawed and racist. In doing so, race became an invisible factor of death penalty opposition. Therefore, judicial interference in death penalty litigation has consistently moved further away from these institutional problems. This decision, however, ushered in a new era of judicial limitations that has ultimately paved the way for the future abolition of capital punishment in the United States. The only problem with these limitations is that they never consider race as a key component of sentencing discrepancies.

The first judicial limitations on capital punishment set forth by the Supreme Court came only one year after the decision in Gregg v. Georgia. In the 1977 case of Coker v. Georgia, Coker escaped prison, broke into a private home, raped the woman of the house, and stole her car to escape (Coker v. Georgia, 433 U.S. 584). The woman survived, but Coker was sentenced to death by the Georgia courts. The decision was reversed by the Supreme Court in a 7-2 decision, stating the excessive constitutional violation of the 8th Amendment in instituting the death penalty for a nonlethal crime. In a more recent, but similar case, the Court considered the constitutionality of imposing a death sentence for the nonlethal rape of a child. The Supreme Court voted in favor of the defendant in the 2008 case of Kennedy v. Louisiana,concurring that the decision of the Louisiana Courts violated the 8th Amendment (Kennedy v. Louisiana, 554 U.S. 407). The blanket laws imposed in these cases provide the context of relatively straightforward death penalty limitations. As judicial interference has become more prominent in capital punishment, so does the relevance of the 8th Amendment. Another instance in which the judicial system has imposed explicit limitations on the death penalty concerns the mentally ill. The first efforts by the Supreme Court to protect this group is exemplified by the 1986 case Ford v. Wainwright. Ford was tried by the Florida courts and sentenced to death for murder. The court did not have any indication that Ford was mentally ill at the time of the murder, however, after receiving this sentence, his mental stability worsened (Ford v. Wainwright, 477 U.S. 399). The government of Florida then tested Ford’s psychological competency, but refused to bring the case back to the courts. After reaching the Supreme Court, the decision deemed the execution of the mentally ill to be inhumane. Although Ford v. Wainwright seemed to produce a blanket rule like that of Gregg v. Georgia, the reversal of the Court’s decision came in 1989 with the case of Penry v. Lynaugh (492 U.S. 302). During Penry’s initial trial, the jurors were aware of Penry’s severe mental illnesses, but they were not informed that this information could impact their final sentencing decision.

Therefore, Penry was sentenced to death for murder. Penry argued that the jurors were misled and, more generally, the capital punishment of mentally ill defendants violates the 8th Amendment. When brought to the Supreme Court, the Justices explained that the jurors should have been aware of the impact that mental illness can have in capital punishment sentencing. However, they denied the accusation that death sentencing of defendants with mental illnesses is a violation of the 8th Amendment. Instead, the Supreme Court determined mental illness as a factor to merely lessen the culpability of a crime. This decision was reversed, however, by Atkins v. Virginia. Daryl Atkins was sentenced to death by the Virginia Supreme Court despite the testimony of a psychologist, deeming Atkins mentally ill. The court maintained their decision, referring to the ruling in Penry v. Lynaugh that permitted the execution of the mentally ill. When the case was brought to the Supreme Court, the decision was reversed. The Justices relied on the increasing number of states that began protecting the mentally ill from death sentences after the decision of Penry v. Lynaugh. The newfound consensus of individual states regarding the constitutionality of this punishment, ulitmately lead to the Supreme Court’s decision to protect the mentally ill from the death penalty. This case proved to be instrumental in the future deliberations regarding judicial limitations of the death penalty. In another judicial attempt to limit the death penalty, the court consider the age of defendants. In 1988, Oklahoma Courts sentenced a 15 year old boy to death for murder in Thompson v. Oklahoma (487 U.S. 815). The Supreme Court deemed this sentence unconstitutional as a violation of the 8th Amendment. More specifically, the court stated that the execution of a person under the age of 16 years of age is unconstitutional. One year later in Stanford v. Kentucky, the court considered constitutionality of death penalty sentencing of defendants exactly 16 or 17 years of age (Stanford v. Kentucky, 492 U.S. 361). Similar to the deliberations of Atkins v. Virginia, the court focused on public opinion and precedents set by other states. The Supreme Court did not rule in favor of the 17 year old sentenced to death because there was no national consensus in the United States at the time. Therefore, they left the power to the states to decide the constitutionality of death penalty sentencing of minors. The basic context of Roper v. Simmons is extremely similar to the previous capital punishment cases dealing with juveniles. In 1993, Simmons was sentenced to death at the age of 17 in the state of Missouri and persistently tried to appeal the decision with no luck. It was not until the 2002 Supreme Court case, Atkins v. Virginia, that the court of Missouri reconsidered Simmons’s case. The incorporation of national opinion in Atkins’s defense argument expanded the court’s discretion in death penalty cases. The Supreme Court referenced the new majority opinion in the states that the execution of minors is disproportionate and inhumane. Therefore, largely in part to the court’s reliance on the shifting national public opinion, Stanford v. Kentucky was reversed and the execution of minors was deemed unconstitutional. The standards that the Supreme Court has imposed on the imposition of the death penalty represents some movement towards either strict regulation or complete abolition. The Supreme Court deemed the institution of the death penalty completely unconstitutional, despite unique circumstances in any future cases. In the cases of Atkins v. Virginia and Roper v. Simmons, we see

the growing power of national consensus on the decisions of the Supreme Court. The court has been able to control many demographic factors, but not the one most intertwined in the criminal justice system: race. Though race has not been truly considered a component in judicial limitations, the Supreme Court has established a framework to constrict the death penalty. In order for the Supreme Court to abolish the death penalty, the public must fully realize and condemn the history of death penalty sentencing and focus on the visibility of race in the criminal justice system.

The politics surrounding public support and opposition of aboltion have proven to increasingly impact judicial and legislative limitations on the death penalty. Since the earliest use of capital punishment, the United States had seen consistent public support. However, in the same way that the judicial opinions of the death penalty have very obviously changed, so have the national public opinion. According to a Gallup Poll, “for the first time in Gallup's 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is” (Jones 2019). Across all party lines, there have been movements in each party towards life imprisonment over the death penalty (Cheng 73-90). More specifically, Democrats and Independents prefer life imprisonment over the death penalty. Republicans, on the other hand, do still favor the death penalty, but since 2014, the factor has decreased by 10% and moves closer to a majority in favor of life sentences (Jones). Though the public support of the death penalty in states that use the death penatly disproportionately more is signficantly higher than the national averages, the use of capital punishment in these states have decreased drastically. In a study researching geographic disparities in death penalty sentencing, “[in] the 3,144 counties or their equivalents in the United States, just 29 counties averaged more than one death sentence a year. ‘That 1 percent of counties accounts for roughly 44 percent of all death sentences,’ since 1976” (Ford 2015). In all parts and across all parties of the United States, the public opinion data showcases a national movement away from the death penalty. In reference to capital punishment in America, according to Chief Justice Warren, “cruel punishment should be assessed in light of the ‘evolving standards of decency in a maturing society’” (Hogkinson 326). Therefore, the judicial decisions and limitations regarding capital punishment should also be moving away from the death penalty. However, since the country as a whole has not framed the abolitionist argument in the context of race disparities, the argument against capital punishment is incomplete and less effective. The root of this problem comes from the Supreme Court’s inability to confront the impact of race politics in death penalty sentencing, even when provided with extensive empirical data. The case of McCleskey v. Kemp exemplifies judicial awareness of the invisibility of race in capital punishment deliberations. The state of Georgia charged McCleskey with murdering a police officer and sentenced him to death. When the case was brought to the Supreme Court, the defense focused on statistical evidence that proved that the system in Georgia discriminates against black defendants. Headed by University of Pennsylvania Professor David C. Baldus, the research considered 2,500 homicides and 230 variables (Steiker 8). The Baldus Study found that, “race was

a stronger predictor of who would be sentenced to death in Georgia than many of the aggravating factors commonly used to procure the death penalty” (Keys 1). More specifically, the study found that black defendants who kill white victims have the highest probability of incurring a death sentence (3). Despite the completeness and accuracy of the study, the Supreme Court rejected the notion to consider the study as proof of a constitutional violation in this specific case. By dismissing the empirical evidence of the Baldus Study, the Supreme Court dismissed the visbility of race in capital punishment politics. Exactly 30 years later, when reviewing the outcome of McCleskey v. Kemp, Baldus explained that the decision, “nearly eliminated any incentive for state or federal courts and legislatures to address the issue of racial discrimination in capital sentencing” (Keys 83). The Supreme Court ultimately ignored the evidence that the disproportionate execution sentence of blacks is a violation of the 8th Amendment as a way to avoid the challeneges that come with abolishing the death penalty. At the time, the country was not ready for, nor in favor of, abolition. As public opinion has shifted against capital punishment, the judicial limitations on the death penalty have increased. However, instead of focusing on the structural racism entrenched in the politics of capital punishment, the judicial system has chosen to focus on other factors. The precedent that the decision of McCleskey v. Kemp set represents the intended invisibility of race, but also the future of the death penalty.

The potential aboliton of the death penalty rests on the the actions of the judicial system. The framework to do so has already been created by the Supreme Court. The moratorium set forth by Furman v. Georgia gave space for the argument that implicit racial bias has always drastically affected death penalty sentencing. However, by reinstating capital punishment in Gregg v. Georgia, the court resorted to judicial limitations in order to control the inherently biased actions of the states. As the judiciary limits the death penalty by reason of cruel and usual punishment, we see the way that public opinion has moved towards opposition and aboltion. In the cases of Atkins v. Virginia and Roper v. Simmons, the Supreme Court came to their decision almost completely based on public opinion and state litigation. The relationship between 8th Amendment violations and the national consensus provides the foundation for the country to replace executions with life imprisonment sentences. In order for the Supreme Court to abolish capital punishment, they need to allow the disproportionate data to be visible. The case of McCleskey v. Kemp proved the discriminatory history of capital sentencing in Georgia through empirical data. The Supreme Court disqualified the effect the Baldus Study could have had on capital punishment politics, however, directly resulting in the movement away from the argument of race politics. By suppressing the visibility of race in the criminal justice system, the judicial system intentionally avoids the most apparent component in the institution of a death sentence. However, the Supreme Court does continue to develop blanket laws and increase control of the death penalty. Once the judicial focus of capital punishment litigation shifts to the dark history of racial bias, then, in combination with the increasing proponents of life imprisonment sentences, the inherent discriminatory nature of capital punishment will be revealed and the United States will have to move towards abolition.

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Atkins v. Virginia, 536 U.S. 304 (2002).

Cheng, Jesse. "Humanity’s Subtensions: Culture Theory in US Death Penalty Mitigation." Social Analysis 61, no. 3 (2017): 73-90.

Coker v. Georgia, 433 U.S. 584 (1977).

Ford, Matt. “The Death Penalty Becomes Rare.” The Atlantic, April 21, 2015.

Furman v. Georgia, 408 U.S. 238 (1972).

Gregg v. Georgia, 428 U.S. 153 (1976).

Hodgkinson, Peter, and Schabas, William A., eds. Capital Punishment: Strategies for Abolition. Cambridge: Cambridge University Press, 2004. Accessed May 1, 2020.

Hood, Roger and Carolyn Hoyle. “Abolishing the Death Penalty Worldwide: The Impact of a ‘New Dynamic.’” Crime and Justice, no. 1 (2009): 1-51.

Jones, Jeffery M.. “Americans Now Support Life in Prison Over Death Penalty.” Gallup, November 25, 2019.

Kennedy v. Louisiana, 554 U.S. 407 (2008).

Keys, David P., and Maratea, R. J., eds. Race and the Death Penalty: The Legacy of Mccleskey V. Kemp. Boulder, CO: Lynne Rienner Publishers, 2015. Accessed May 2, 2020.

McCleskey v. Kemp, 481 U.S. 279 (1987).

"Pennsylvania and the Death Penalty: Abolishing Capital Punishment is the Only Solution for a Broken System." New York Times (1923-Current File), 2012.

Penry v. Lynaugh, 492 U.S. 302 (1989).

Roper v. Simmons, 543 U.S. 551 (2005).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Steiker, Carol S. and Jordan M. Steiker. "The American Death Penalty and the(in)Visibility of Race." The University of Chicago Law Review 82, no. 1 (2015): 243294.

Thompson v. Oklahoma, 487 U.S. 815 (1988).

Weems v. United States, 217 U.S. 349 (1910).

Wilkerson v. Utah, 99 U.S. 130 (1878).