Striving for Equity: The Evolving Jurisprudence Surrounding Capital Punishment

Will Sharps | April 2021

(From left) Justice William J. Brennan Jr. in 1976, the US Supreme Court Building in 2011, a lethal injection room in San Quentin Prison, California (2016)


n July 2020, after seventeen years of not carrying out any executions, the federal government began doing so once again. This practice was resumed at an unforeseen rate, as the Trump administration carried out thirteen federal executions in its final six months. This number is the highest of any presidential administration in the last 100 years.

Such an uptick in the use of capital punishment brings to light many of the constitutional arguments against the practice. Such arguments were made frequently before the Supreme Court in the 1970s and are now once again worth considering. This piece will aim to analyze the grounds on which the death penalty has been deemed both unconstitutional and constitutional in the United States, additionally looking to the current argumentative landscape surrounding capital punishment in 2021.

Furman and the Initial Outlawing of Capital Punishment 


The first of the 1970s landmark cases regarding capital punishment occurred in 1972, as the Court brought together three death penalty cases across multiple states in Furman v. Georgia. In Furman, a 5-4 Majority held that the death penalty was unconstitutional under both the Eighth and Fourteenth Amendments. The Court specifically found that the death penalty violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The legal landscape surrounding the death penalty at the time was largely unformalized, and thus the Court took issue with the ability of a jury to randomly impose death upon one person and not another. It does seem inherently unfair that the life of a person could lie entirely in the people selected to serve on a jury, or the state in which a crime was committed. 


Such concerns were also considered under the Equal Protection Clause of the 14th Amendment, as the Furman Court found evidence of racial disparities in death penalty sentencing. A 1977 survey highlights the racial disparity in death sentencing at the time, observing that 295 black offenders were executed while only 21 white offenders were put to death in 1977. Furthermore, these staggering figures were a product of a time when black people were disproportionately victims of crime compared to white people. As a result of the findings in Furman, the courts temporarily banned the death penalty in the United States until changes could be made to curb the arbitrary, uncodified nature of the punishment. It is important to note that while the death penalty was suspended as a result of the sentencing statutes being found unconstitutional, the practice of execution itself still had life in the eyes of the Court. Statutory changes were made in many states, including Georgia, prior to the next death penalty case that the Court heard in 1976.


Gregg v. Georgia: Disregarding Disproportionality

In Gregg v. Georgia, only four years after the death penalty was federally invalidated, the Supreme Court heard another death penalty case. The defendant in Gregg had been sentenced to death under new Georgia state sentencing statutes formulated to circumvent the legislative consequences of Furman. The Court found that the Georgia statutes provided “adequate information and guidance” to the jury, and thus the chance for the disproportionate application highlighted in Furman was no longer relevant in jurisprudence regarding capital punishment. New state stipulations included the jury finding that the defendant acted under aggravating circumstances, each case being automatically reviewed by the Georgia Supreme Court, and other technicalities.

A Glimpse at a New Model for Capital Punishment Statute


Despite the Court’s rejection of disparate impact in Gregg, unfortunately, the figures in the 1977 survey indicating disparate outcomes in death sentencing appear to be the norm when assessing current death row statistics. In 2019, the Death Penalty Information Center found that 52 percent of death row inmates were black, and those whose victims were white where more likely be given the death penalty than those who killed black victims. While not as drastic, these numbers show that the racial disparity which was in part used to render the death penalty unconstitutional in Furman still exist today. In order to address this disparity while still holding the practice of the death penalty facially constitutional, legislators could draft a piece of legislation similar to the 1965 Voting Rights Act (VRA), and the court would be right to uphold such legislation.


Specifically, the VRA is unique in that pieces of the legislation, namely the fourth and fifth sections, allow for federal oversight of state voting statutes if certain states or jurisdictions meet the criteria described in a coverage formula. The VRA coverage formula is meant to identify the places with the largest racial disparities among voters, so that the federal government can have an active role in addressing these disparities. Historically, courts have found such legislation agreeable so long as there is a sunset period after which the necessity of such a law would be reviewed. Applying this affirmative, regionalized, and flexible approach to the death penalty would reinforce the Court’s holding in Gregg that capital punishment can be constitutional under the Eighth and 14th Amendments, while also acknowledging that the United States has largely failed to address the Court’s concerns in Furman regarding racially disparate death sentencing. It is often a sad and difficult choice between admitting the shortcomings of our society and adhering to constitutional principles, yet luckily in this case the Voting Rights Act provides an interesting example of balancing flexibility and constitutional fidelity.


Facially Unconstitutional? 


While this VRA model is a possible remedy to the current dilemma surrounding capital punishment, justices in both Furman and Gregg wrote separate opinions that labeled the death penalty as facially unconstitutional under the Eighth Amendment. Justice Brennan’s dissent in Gregg focuses specifically on moral principles and asserts that the presence of a clause forbidding cruel and unusual punishment, along with the idea of “evolving standards of decency,” must apply to any assessment of the punishment. Such a flexible, realist view is not a unique one: in fact, the number of countries which have outlawed the death penalty increased from 48 to 106 between 1991 and 2017. Of the countries which no longer have any death penalty legislation, perhaps the most notable is the United Kingdom. British law, death penalty included, bears an important connection to American law as many of our statutes were directly adopted from British codes during the colonial period.


In Conclusion


Despite active challenges to the morality of the death penalty itself, history suggests that the Unites States Courts support capital punishment, at least to some degree. Past rulings, in both Furman and Gregg, highlight this viewpoint in that the death penalty has typically only ever been restricted as a result of irresponsible and unequal application. Given that the constitutionality of the practice will always be determined by the judiciary so long as our democracy stands, both legislators and judges have a constant duty to reevaluate our most controversial laws involving capital punishment. Such review may, unfortunately, find that racial and class disparities are still relevant in both death penalty sentencing and executions. If this is the case, it would be wise of the courts to affirmatively suspend capital punishment as it did in Furman until such disparities can be properly addressed once and for all, or for the legislature to implement temporary statutes specifically addressing issues of application for a set period of time. Either approach would mark a significant step towards fixing a major constitutional issue which must be addressed, while not undoing capital punishment entirely. 


As seen through conflicting statutes and judicial decisions, our American history of capital punishment is a contentious one, prone to socioeconomic and racial disparities as well as varying judicial interpretations. A more tailored, realist approach towards enforcement would be wise and assist in balancing our competing interests in equity and criminal enforcement. 

Will Sharps is a sophomore at the University of Michigan from Baltimore, Maryland. He is studying Philosophy, Politics, and Economics with a minor in Crime and Justice. He focuses his writing on constitutional and criminal law. Outside of MC, Will enjoys water sports and volunteering with his fraternity.