The hiatus lasted just 4years; executions returnedin 1977 …… and the U.S. has executed 1200+ since then.Why was the death penalty found unconstitutional in 1972?And is it really so different now?5 Justices gave 4 reasons:
Brennan: “W hen examined by the principles applicable under the C ruel and U nusual P unishments C lause, death stands condemned as fatally offensive to human dignity.” Marshall: “T he question then is not whether we condone rape or murder, for surely we do not; it is whether capital punishment is a punishment no longer consistent with our own self-respect’ and, therefore, violative of the E ighth A mendment.”
Five years after Furman, Amnesty International took up thecall to campaign for an end to the death penalty throughoutthe world.Today, almost 100 countries have abolished the deathpenalty, and two-thirds of the world’s nations haveabandoned capital punishment in law or practice.There is a growing global consensus that the death penaltyis, indeed, “offensive to human dignity.”
Even in the U.S., the public is turning away from the deathpenalty, as death sentences have dropped precipitously inthe last 12 years …
Douglas: “T hey are pregnant with discriminationand discrimination is an ingredient notcompatible with the idea of equal protection ofthe laws that is implicit in the ban on ‘cruel andunusual’ punishments.”
Stewart: “T hese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”Today, deathsentences aredetermined, not by thenature of the crime,but by the ability of thedefendant to afford agood lawyer, and byw he re thec r im e isc o m m it t e d .
White: “a maj goal of the criminal law – to ordeter others by punishing the convictedcriminal – would not be substantially served where thepenalty is so seldom invoked that it ceases to be thecredible threat essential to influence the conduct ofothers… its imposition would then be the pointless and needlessextinction of life with only marginal contributions to anydiscernible social or public purposes. A penalty with suchnegligible returns to the State would be patently excessive and crueland unusual punishment violative of the E ighth A mendment.”
Today, 88% of criminologists agree that there is no evidencethat the death penalty deters more than other punishments …Even murder victim family members are increasingly sayingthey don’t need it …
What about the 4 dissenters? They said the death penaltywas not cruel and unusual, and that the court should notintervene in the states and the legislative branch. Blackmun: “ lthough personally I may rej at the C ourts result, I find it A oice difficult to accept or to j ustify as a matter of history, of law, or of constitutional pronouncement. I fear the C ourt has overstepped.” Powell: “L ess measurable, but certainly of no less significance, is the shattering effect this collection of views has on the root principles of stare decisis, federalism, j udicial restraint, and -- most importantly -- separation of powers.” Rehnquist: “ hatever its precise rationale, todays holding necessarily brings into W sharp relief the fundamental question of the role of j udicial review in a democratic society. H ow can government by the elected representatives of the people co-exist with the power of the federal j udiciary, whose members are constitutionally insulated from responsiveness to the popular will, to declare invalid laws duly enacted by the popular branches of government?”
All 3 of these voted for reinstatement in 1976, but Powelland Blackmun later recanted: “ would vote the other way in any capital case. … I have come to think that capital I punishment should be abolished.” –Supreme Court Justice L e w i s P o w e l l , to his biographer in 1991. “ rom this day forward, I no longer shall tinker with the machinery of death … the F basic question – does the system accurately and consistently determine which defendants ‘deserve’ to die? – cannot be answered in the affirmative.” – Supreme Court Justice H a r r y B l a c k m u n , in a dissent in C allins v. C ollins (1994)
Even Chief Justice Burger, expressed his personal objectionto the death penalty, and the need to limit it to the worstcases. “I f we were possessed of legislative power, I would either j with M R . JU ST I C E B R E N N A N and M R . oin JU ST I C E M A R SH A L L or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes.”
But he also provided a roadmap for States to avoidrandomness and make their new death penalty lawsconstitutional by l i m i t i n g t h e d e a t h p e n a l t yt o o n ly t h e w o r s t c r im e s . Burger: “I f state legislatures and the C ongress wish to maintain the availability of capital punishment … legislative bodies may seek to bring their laws into compliance with the C ourts ruling by providing standards for j uries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed.”
As we have seen, this did not work …death sentences arestill determined more by race and location …
Today’s death penalty, designed to be limited to the “worst ofthe worst”, has also instead ensnared the innocent. 140people have been exonerated from death row since F urman.Many more have been executeddespite s e r i o u s d o u b t sa b o u t t h e ir g u ilt .
What happened to those whose death sentences werecommuted by the F urman decision? A total of 589 death sentences were commuted following F urman. Joan Cheever’s book “B ack from the D ead” follows the 322 inmates who were released from prison after F urman. Of the 322 released: •211 n e v e r c o m m i t t e d a n o t h e r c r i m e , and 7 were e x o n e r a t e d by courts post-release •33 were re-incarcerated for a small number of days for “technical violations” of their parole. •42 were re-incarcerated for non-violent crimes, •29 for more violent felonies •2 of the parolees were convicted of attempted murder •2 for manslaughter •3 for murder.
I n 1 9 7 2 , 40 states + Washington, DC, had the deathpenalty…No w, just 33 states have the death penalty (DC does not)I n 1 9 7 2 , 49% of the public supported the death penaltyNo w, 61% of the public supports the death penalty (but only49% if the alternative of life without parole is suggested)
As in 1972, the death penalty today is still “wanton and freakish”, “pregnant withdiscrimination,” and a “pointless and needless extinction of human life” that is “fatallyoffensive to human dignity”.And, as in 1972, support for abolition of the death penalty is growing. FourGovernors have signed death penalty abolition bills since December 2007. Yo u r S t a t e c o u ld b e n e x
We lived without the death penalty for fouryears after Furman. What will it be like whenwe abolish the death penalty again?Resources will be devoted to more effective and more human polices:Prevention policy: violence, drug/alcohol abuse, treatment for the mentally illPublic Safety: resources for community policing and other social services
WHAT CAN YOU DO? EDUCATE THE PUBLIC Leaflet, table, set up a display, organize a panel discussion, host a speaker, present to a class/civic/religious group, wear abolition button/shirt, etc. WRITE/ORGANIZE ON AI DEATH PENALTY CASES WORK ON DEATH PENALTY www.amnestyusa.org/abolish ABOLITION IN YOUR STATE DPIntern2@aiusa.org 202-544-0200
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