Concepts In Criminal Law: The Death Penalty In The US

One of the most hotly-debated concepts within the fields of Criminal Law is the death penalty. The US is the only western nation that has legalized death penalty. Is its use considered to be a “cruel and unusual” punishment?

Furman v. Georgia (1972) – Supreme Court ended capital punishment temporarily (only until 1976) because it was imposed in arbitrary manner in violation of Eighth and Fourteenth Amendments. Prior to 1972, some states applied the death penalty arbitrary and inconsistently. Following decision, several states enacted new laws designed to avoid arbitrary application of death sentence and only applied it to ether violent or fatal crimes. Supreme Court has even said that it does not violate equal protection clause.

Four principles of punishment under the Eighth Amendment

• Punishment must not be degrading to human dignity.
• Punishment must not be inflicted arbitrarily.
• Punishment must not be wholly rejected throughout society.
• Punishment must not be patently offensive.

What about torture? A court would first need to first determine if the death penalty is unconstitutional before it could detemrine if torture is “cruel and unusual.”

The Supreme Court said that the constitution is available to all people living in the US boundaries (even non-citizens). Though this right does not necessary apply to enemy combatants.

Punishments Forbidden

• 1878 Supreme Court: No drawing and quartering; public dissection; burning alive; disembowelment.
• 1988 Supreme Court: Defendant under 18 when crime committed.
• 2002 Supreme Court: Mentally handicapped defendants.
• NO MANDATORY DEATH PENALTY CRIMES
• Death Penalty for Rape (see below case Corker v. Georgia)
• Eighth Amendment been used to include, by implication, all non-fatal crimes.
• A person can only be charged if their actions led to the direct death of a person.

Punishments Allowed

• Firing Squad (1 state) (Utah)
• Hanging (1 state) (Delaware)
• Gas Chamber (2 states) (Arizona and California)
• Electric Chair (8 states) (Alabama, Florida, Kentucky, Oklahoma, South Carolina, Texas, Tennessee and Virginia)
• Lethal Injection (30 states) (Primary method for each of the above).
• Life sentence without parole under three strikes laws

A majority (~60%) of Americans favor the death penalty even for the most minor crimes. Their support for the death penalty has increased since President Donald Trump (who advocates a hardline and draconian approach to crime) assumed office 2 years ago.