In 1971, the year before the Supreme Court began its long and tortured experiment in constitutional regulation of the death penalty, Justice JOHN MARSHALL HARLAN issued an ominous warning. In McGautha v. California he said that because of the irreducible moral complexity and subjectivity of capital punishment, any effort to impose formal legal rationality on the choice between life and death for a criminal defendant would prove futile: "To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability."
A constitutional interpreter who accepted Justice Harlan's pronouncement could draw one of at least two possible implications from it. She could conclude that in the face of this moral uncertainty, courts cannot interfere in legislative decisions about capital punishment, for judges have no objective principles to correct legislators. On the other hand, she could conclude that capital punishment must be constitutionally forbidden, because this moral uncertainty means that legislators cannot make the death penalty process conform to the minimal constitutional principles of the RULE OF LAW. But a constitutional interpreter might also conclude that Justice Harlan was unnecessarily cynical, and that an enlightened judicial effort might achieve an acceptable moral and instrumental rationality in the administration of the death penalty. The erratic constitutional history of capital punishment both before and after McGautha reflects the stubborn difficulty of these questions. That history reveals a complex, often confused experiment in lawmaking. It also illuminates the fundamental, recurring dilemma that Justice Harlan described, and lends sobering support to his pronouncement.
The Fifth Amendment says that no person "shall be deprived of life ? without DUE PROCESS OF LAW." Thus, a strict textual reader would easily conclude that the Constitution does not forbid capital punishment per se. And indeed in early America, execution was the automatic penalty for anyone convicted of murder or any of several other felonies. Well into the nineteenth century, a jury that believed a defendant to be guilty of murder had no legal
power to save him from death. As the states began to draw distinctions among degrees of murder, a prosecutor had to win a conviction on an aggravated or first-degree murder charge to ensure execution, but, after conviction, the death penalty still lay beyond the legal discretion of the jury.
One potential constitutional restraint on the death penalty lay in the Eighth Amendment prohibition of CRUEL AND UNUSUAL PUNISHMENT. But at least in the Supreme Court's contemporary historical interpretation, Gregg v. Georgia (1976), the authors of the cruel and unusual punishment clause did not intend to forbid conventional capital punishment for serious crimes. Rather, the Eighth Amendment, drawing on the English BILL OF RIGHTS of 1689, was intended merely to prohibit any punishments not officially authorized by statute or not lying within the sentencing court's jurisdiction, and any torture or brutal, gratuitously painful methods of execution.
For most of the nineteenth century, American courts placed virtually no constitutional restrictions on capital punishment. Nevertheless, the state legislatures gradually rejected the automatic death penalty scheme. Some legislators may have believed that the automatic death laws were too harsh, and that at least some murderers merited legal mercy. Others, paradoxically, may have felt that the automatic death penalty law actually proved too lenient. A jury that believed a defendant was guilty of first-degree murder, but did not believe he deserved execution, could engage in " JURY NULLIFICATION "?it could act subversively by acquitting the defendant of the murder charge.
In any event, by the early twentieth century most of the states had adopted an entirely new type of death penalty law that gave juries implicit, unreviewable legal discretion in the choice between life and death sentences. The jury was instructed that if it found the defendant guilty of the capital crime, it must then decide between life and death. The jury had no legal guidance in this decision. Moreover, the jury rarely received any general information about the defendant's background, character, or previous criminal record that might be relevant to sentence; it only had the evidence proffered on the guilt issue. Although a few states eliminated capital punishment entirely late in the nineteenth century or early in the twentieth century, the new unguided discretion statute was essentially the model American death penalty law until 1972.
Executions of murderers and rapists were fairly frequent in the United States until the 1960s, though the rate of execution peaked at about 200 per year during the Depression and then dropped during WORLD WAR II. Bythe 1960s, however, the long-standing practice of death sentencing through unguided jury discretion began to face increasing moral and political opposition. Beyond any fundamental change in moral attitudes toward state killing itself, the opposition sounded essentially three themes. First, early empirical studies by social scientists cast grave doubt on the major instrumental justification for the death penalty?its general deterrent power over murderers. Second, even informal data on the patterns of execution under the unguided discretion laws suggested that the criminal justice system in general, and sentencing juries in particular, acted randomly and capriciously in selecting defendants for capital punishment. The process did not treat like cases alike, and no rational principle emerged to explain why some defendants were executed and others of similar crimes or character were not.
Third, to the extent that any pattern emerged at all, it was the unacceptable pattern of race. Critics of the death penalty offered empirical evidence that the race of the defendant was an important factor in a jury's choice between life and death, and that the race of the victim was potentially a still...