Is the death penalty Constitutional?

The execution last week in Texas of Betty Lou Beets for the murder of her husband has put capital punishment in the headlines again. Many critics of the death penalty argue that it is unconstitutional because it violates the 8th Amendment's prohibition against "cruel and unusual" punishments. What should be made of these arguments? What is the definition of "cruel and unusual" and does the death penalty fall under that definition?

You correctly note that the 8th Amendment to the United States Constitution forbids punishments that are "cruel and unusual." Various legal interpretations of the meaning of "cruel and unusual" have been offered, but generally the term "cruel" is taken to mean excessively painful or brutal. Punishments such as torture and dismemberment seem to clearly fall under this heading. "Unusual" has generally been understood to mean a punishment that is not usually associated with a particular crime but which is nonetheless applied arbitrarily in some cases. If nine of every ten jaywalkers were cited and fined $5 while the remaining one out of ten were fined $5,000, such a penalty would be "unusual." Furthermore, both terms taken together suggest that punishments should be proportionate to the crime that was committed. Life imprisonment for shoplifting would be "cruel and unusual" not because it is an unacceptable form of punishment under any imaginable set of circumstances, but because it is excessive given the crime in question.

The Supreme Court has addressed the question of whether the death penalty is a cruel and unusual punishment several times. In doing so, it has generally considered all three of the definitions of "cruel and unusual" noted above. The Court has never ruled the 8th Amendment completely rules out the use of the death penalty. That is not to say, however, that the Court might never rule in such a manner. In its decisions, the Court has explicitly stated that the meaning of the 8th Amendment can and does evolve over time as society's norms and values change. In the late 1700s, for example, shortly after the Constitution was ratified, whippings were commonly recognized as acceptable punishments for particular crimes. Such practices are no longer considered appropriate because society's views of "cruel and unusual" have changed. With regard to the death penalty, however, the Court has maintained that there remains broad public support for the death penalty as a remedy for the most serious of crimes.

While the Supreme Court has maintained that the death penalty is not excessively "cruel" in and of itself, it has ruled that if its application is "unusual" it violates the 8th Amendment. The two most important decisions about the application of the death penalty came in 1972 and 1976, both in response to challenges of Georgia death penalty statutes. In the 1972 case, Furman v. Georgia, the Court concluded that the arbitrary application of the death penalty and the disproportionate number of minorities that were executed made the death penalty "unusual." In response to this decision, the death sentences of about 600 death row inmates were commuted to life and no executions were allowed in the United States four about four years. By declining to rule that capital punishment was unconstitutional in and of itself, however, the Court left the door open for state legislatures to draw more narrowly construed death penalty statutes that would satisfy the Court's misgivings.

In 1976, Georgia's newly written death penalty statute was challenged before the Supreme Court in Gregg v. Georgia. The Court ruled that Georgia had successfully responded to the Court's concerns in creating a statute that applied the death penalty in response to specific, carefully defined crimes, allowed for the consideration of the particular circumstances of the crime and allowed for expedited appeals in cases where the accused was sentenced to die. In a series of cases since the Gregg decision, the Court has consistently required the federal and state governments to apply the death penalty consistently and fairly and then only in proportion to the crimes committed. The Court has, for example, found that the death penalty is too severe a punishment for the rape of an adult when the victim is not killed. Just what kinds of actions merit the death penalty (other than the direct commission of a murder), however, remains somewhat unclear.

In ruling that the death penalty is not a "cruel and unusual" punishment under the 8th Amendment, the Supreme Court has cited the 5th Amendment which the Court believes strongly implies that the Framers did not intend to prevent the use of capital punishment. The 5th Amendment guarantees that no one shall be deprived of "life, liberty, or property, without due process of law." The clear implication is that depriving someone of his or her life is permissible under the Constitution.

In spite of the Supreme Court's rulings, the death penalty remains a controversial issue. Critics maintain that evil should not be returned with state-sanctioned evil. Others argue that we can never be 100% confident in the accuracy of trial verdicts and that persons should not be put to death even if their is the slightest chance they may be innocent. Supporters of the death penalty, however, assert that there are some crimes which are such an affront to human decency and to the norms of society that an individual who commits them surrenders his or her right to live. In this nation's ongoing effort to strike the appropriate balance between liberty and order, the death penalty forces each of us to consider fundamental questions about nature of political society, the rights and responsibilities of individuals and the extent of governmental power.