The document discusses debates around the fairness and justice of capital punishment in the United States. It notes that public support for the death penalty has declined due to concerns about innocent people being executed. However, support has remained around 60% in recent years. The document also outlines Supreme Court rulings that have established proportionality and individualized sentencing requirements for capital punishment to comply with the Eighth Amendment's ban on cruel and unusual punishment.

1. Capital Punishment 5
Capital Punishment: Just, Applied Fairly, Barbaric?
Debra Johnson
PHI 103 Informal Logic
Instructor: Philip Bence
April 15, 2013
Capital Punishment: Just and Fair?
Public support for capital punishment has eroded across the
nation, for the most part because Americans are ambivalent.
Many think that capital punishment is acceptable, but they are
concerned about innocent people being executed. As the
political debate of the past two decades centered on wrongful
convictions and death row exonerations, to a greater extent
more Americans evaluated the death penalty in terms of being
potentially unfair. Nevertheless, consider arguments about
cruel and unusual punishment to heart.
I
Capital Punishment Has Split the Country in Two
One of the more controversial issues in America is the death
penalty. According to Gallup News, American support for the
death penalty plateaued to the low 60s in recent years, after

2. several years in which support was losing ground. Sixty-three
percent now favor the death penalty as the punishment for
murder, comparable to 61 percent in 2011, and 64 percent in
2010. “Some Americans tend to believe the death penalty is
applied fairly in this country, though a substantial number
believes it is not. Nearly half of Americans say the death
penalty is not imposed often enough.” (Jones, 2002).
Support for the death penalty is slightly higher this year than in
earlier years. The poll reflects that a little over half of
Americans believe the death penalty is applied fairly in this
country, while 40% say it is applied unfairly. The new Gallup
data reveal many differences by subgroup in regard to the
fairness of the death penalty. While 58 percent of whites
believe it is applied fairly, the majority of non-whites, 54
percent, believe it is not. Similarly, 63 percent of conservatives
say the death penalty is applied fairly while 56 percent of
liberals say it is applied unfairly. A majority of those with
post-graduate educations say the death penalty is applied
unfairly, but a majority of every other educational group
believes it is used in a fair manner. And while a majority of
each age group believes the death penalty is applied fairly,
those between the ages of 18 and 29 are much more likely to
express this view. (Jones, 2002).
Whether the death penalty should be banned nearly splits the
country in two. In a 2006 Poll, support of the death penalty was
65 percent and the respondents were split nearly even on
whether to have life without parole or the death penalty; with 47
percent preferring the death penalty and 48 percent preferring
life without parole. (Jones, 2002).
II
An Eye for an Eye
The numbers have not changed much, nor have the courts.
Those changes made by the U.S. Supreme Courts however, have
force the state courts to gussie up and behave like courts,
cleaned up the juries a little, but foremost, the criminal justice
system is in sync to the extent one could ever hope that they

3. would be. This is not an argument for or against capital
punishment, nor is it an endorsement of judges and juries. This
is just the facts.
The Eighth Amendment shapes certain procedural aspects
regarding when a jury may use the death penalty and how it
must be carried out. Because of the Fourteenth Amendment's
Due Process Clause, the Eighth Amendment applies against the
states, as well as the federal government. Eighth Amendment
analysis requires that courts consider the evolving standards of
decency to determine if a particular punishment constitutes a
cruel or unusual punishment. When considering evolving
standards of decency, courts both look for objective factors to
show a change in community standards and also make
independent evaluations about whether the statute in question is
reasonable.
A. U.S. Supreme Court’s Proportionality Requirement
A penalty must be proportional to the crime otherwise the
punishment violates the Eighth Amendment's prohibition
against cruel and unusual punishments. The Court looks to
three factors: (1) a consideration of the offense's gravity and
the stringency of the penalty, (2) a consideration of how the
jurisdiction punishes its other criminals, and (3) a consideration
of how other jurisdictions punish the same crime.
In the landmark case of Coker v. Georgia, the Court ruled that a
state cannot apply the death penalty or the crime of raping an
adult woman because it violates the proportionality
requirement. The Court came to this conclusion by considering
objective indicia of the nation's attitude toward the death
penalty in rape cases. At the time only a few states allowed for
executions of convicted rapists.
Twenty-one years later, in Kennedy v. Louisiana (2008), the

4. Court extended its ruling in Coker, holding that the penalty is
categorically unavailable for cases of child rape in which the
victim lives. Because only six states in the country permitted
execution as a penalty for child rape, the Court found the
national consensus to hold its use in these cases as
disproportionate.
Principle of Individualized Sentencing
To impose a death sentence, the jury must be guided by the
particular circumstances of the criminal, and the court must
have conducted an individualized sentencing process. In the
2002 Ring v. Arizona decision, the Supreme Court ruled that a
jury, rather than a judge, must find an aggravating factor to
exist for cases in which those factors underlie a judge's choice
to impose the death penalty rather than a lesser punishment. 536
U.S. 584. An aggravating factor is any fact or circumstance that
increases the culpability for a criminal act.
The Supreme Court further refined the requirement of "a finding
of aggravating factors" in Brown v. Sanders. 546 U.S. 212
(2006). For cases in which an appellate court rules a sentencing
factor invalid, the Court ruled that the sentence imposed
becomes unconstitutional unless the jury found some other
aggravating factor that encompasses the same facts and
circumstances as the invalid factor.
Another 2006 cases, Kansas v. Marsh, offered yet another
clarification to the principle of individualized sentencing
jurisprudence. After Marsh, states may impose the death penalty
for situations in which the jury finds the aggravating and
mitigating factors to equally balance, without violating the
principle of individualized sentencing.
(Other possible topics: juror ignorance, morals, etc. – those
that I can argue within the context of my paper.)
References:Jones, Jeffrey M. (2012) Slim Majority of
Americans Say Death Penalty Applied Fairly. Support for the
death penalty higher than in recent years. Gallup News

5. Service.Copyright © 2013 Gallup, Inc. Retrieved from:
http://www.gallup.com/poll/6031/slim-majority-americans-say-
death-penalty-applied-fairly.aspxDeath penalty. (2012). Cornell
University Law School. Retrieved from:
http://www.law.cornell.edu/wex/death_penaltyGregg v.
Georgia, 428 U.S. 153 (1976) Sentencing and Punishment
Evidence. Aggravating Circumstances. Retrieved from:
https://a.next.westlaw.com/Search/Home.html?sp=003935927-
2100&transitionType=Default&contextData=%28sc.Default%29
&bhcp=1