The U.S. Supreme Court has not squarely confronted the death penalty's constitutionality since the 1970s. In that decade, the Court actually ruled both ways on the issue. In McGautha v. California, (1) the Court first held in 1971 that a jury's imposition of the death penalty without governing standards did not violate the Fourteenth Amendment's Due Process Clause. (2) But then in 1972, in the landmark case of Furman v. Georgia, (3) the Court interpreted the Cruel and Unusual Punishments Clause to hold that death sentences--as then applied--were unconstitutional. (4) In that five-to-four decision, delivered in a per curiam opinion with all nine Justices issuing separate opinions, (5) U.S. death penalty laws were struck down as violations of the Eighth and Fourteenth Amendments. (6) The sentences of the "capriciously selected random handful" of those sentenced to die, one of the Justices wrote, are "cruel and unusual in the same way being struck by lightning is cruel and unusual." (7) Other Justices also emphasized the arbitrariness of death sentences, (8) with some focusing on the inequality and racial prejudice associated with them. (9)
Four years later, the Supreme Court reversed course yet again, approving once more the use of executions. (10) After thirty-five states reenacted death penalty laws
in the wake of Furman, (11) the Supreme Court upheld the constitutionality of death penalty statutes in Gregg v. Georgia (12) and two companion cases. (13) The Court ruled that laws purporting to guide unbridled juror discretion--and requiring capital jurors to make special findings (14) or to weigh "aggravating" versus "mitigating" circumstances (15)--withstood constitutional scrutiny. (16) The Court in Gregg emphasized that the Model Penal Code itself set standards for juries to use in death penalty cases. (17) Only mandatory death sentences, the Court ruled that year, were too severe and thus unconstitutional. (18) In its decision in Woodson v. North Carolina, (19) the Court explicitly ruled mandatory death sentences, the norm in the Framers' era, (20) were no longer permissible and had been "rejected" by American society "as unduly harsh and unworkably rigid." (21)
This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia--one of the Court's most vocal proponents of "originalism"--has conceded that corporal punishments such as handbranding and public flogging (22) are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. (23) The American Bar Association ("ABA") has yet to fully weigh in against the death penalty, though it has taken notice of the bevy of problems associated with it. (24) The ABA's two death penalty-related projects, (25) as well as the justice system's considerable experience with capital cases, plainly show that the reality of the death penalty's administration differs substantially from consideration of capital punishment in the abstract. (26)
Modern American society is very different from American life in the eighteenth century, yet executions, though increasingly rare, remain. This is so even though other harsh bodily punishments once used and tolerated in the penal system--among them, ear cropping and the pillory--have not been used for many decades. (27) Part III highlights the rarity of American executions in the 21st century along with the public's heightened unease with them, while Part IV summarizes the Framers' similar unease towards death sentences. Although corporal and capital punishments were meted out in eighteenth-century America, many Framers, history reveals, were fascinated by the potential of penitentiaries and the viability of alternatives to capital punishment. Many of America's founders, in fact, were heavily influenced by Cesare Beccaria's 1764 treatise, On Crimes and Punishments, which spoke out against torture and executions in favor of life sentences. (28) After Part V describes the continued and growing ambivalence of the American public toward executions--ambivalence shared by many U.S. jurists--this Essay concludes that the U.S. Supreme Court should declare the death penalty unconstitutional.
THE QUESTION OF THE CONSTITUTIONALITY OF EXECUTIONS
Since the 1970s, the Justices of the U.S. Supreme Court have skirted the issue of whether executions are unconstitutional per se. (29) Instead of focusing on whether executions are "cruel" and have become "unusual" as a factual and legal matter, the Justices have preferred to leave the issue of capital punishment largely to juries, legislative bodies, and executive branch officials. (30) Even when confronted with credible statistical proof showing a persistent pattern of racial bias in capital sentencing proceedings, the Court refused to strike down death sentences as unconstitutional. (31) In considering the Fourteenth Amendment's Equal Protection Clause, Justice Lewis Powell's majority opinion in McCleskey v. Kemp ruled that the Georgia inmate, Warren McCleskey, whose fate was at stake, had failed to show discrimination "in his case." (32) While forthrightly conceding that the statistical evidence presented (33) "indicate[d] a discrepancy that appears to correlate with race," Justice Powell rejected McCleskey's claim. (34) "Apparent disparities in sentencing," he wrote dismissively, in an opinion he would later wish he could take back, "are an inevitable part of our criminal justice system." (35)
The closest the U.S. Supreme Court has come to reassessing the death penalty's constitutionality as a whole came in 2008 in Baze v. Rees. (36) In that case, Kentucky death-row inmates challenged the state's three-drug lethal injection protocol, questioning the legality of the country's most prevalent method of execution. (37) In particular, the inmates argued that Kentucky's protocol carried a significant risk that severe pain might result during an execution if the protocol was not properly followed. (38) Although executions around the country were temporarily halted pending a ruling in Baze, (39) the Supreme Court flatly rejected the inmates' claims. (40) The Court made its ruling despite a Kentucky law barring veterinarians from using one of the lethal drugs, pancuronium bromide, to euthanize animals. (41) The inmates, Chief Justice John Roberts wrote, "have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment." (42) In a separate opinion, Justice John Paul Stevens lamented: "It is unseemly--to say the least--that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets." (43)
In spite of the Supreme Court's hostility toward claims challenging the constitutionality of executions as a general matter, (44) the Court has been willing to consider--and in some cases, reevaluate--the constitutionality of certain types of executions. Not only has the Court limited unbridled juror discretion (45) and invalidated individual death sentences in a variety of factual contexts, (46) but--utilizing its "evolving standards of decency" test--it has ruled that the U.S. Constitution forbids the execution of various categories of offenders. (47) Since the mid-1970s, the Court has read the Eighth and Fourteenth Amendments to prohibit the execution of the insane, (48) juvenile offenders, (49) the mentally retarded, (50) non-homicidal rapists, (51) and those who neither kill nor attempt or intend to kill. (52) With respect to juveniles and the mentally retarded, the Court even overturned its own precedents, issuing new rulings that have been given retroactive effect. (53) The Court previously allowed such offenders to be executed. (54) Even as it has restricted the death penalty's use, however, the Court has upheld the death penalty's constitutionality as a general matter (55) and allowed death sentences for those who kill or show a "reckless indifference to the value of human life." (56)
REEVALUATING EIGHTH AMENDMENT CASE LAW
Because it has been forty years since Furman ushered in the death penalty's modern era, it is appropriate now to stop and ask a few questions. First, given what is now known about executions themselves, (57) how "humane" is any execution or any method of execution? (58) After all, the punishment of death is expressly calculated to take life, and executions, however carried out, lead to the same result: an inmate's death. Not only can botched executions result in physical pain, (59) but the psychological torture associated with death sentences (60) and prolonged (61) and isolated stays on death row (62) is arguably significantly greater than that associated with other Eighth Amendment violations. (63) Second, in terms of the U.S. Constitution itself, must executions--at this time, especially in light of how rare executions have become (64)--be considered "cruel and unusual punishments"? These are questions the U.S. Supreme Court has not satisfactorily addressed to date, but that must be confronted head-on.
The Supreme Court's Eighth Amendment jurisprudence has already been aptly characterized as an "enigma" (65) and a "mess." (66) Such terms are fitting because, if for no other reason, corporal punishments are no longer used in America's penal system (67) while capital punishment remains. In other words, bodily punishments less than death--such as the historically familiar penal sanctions of whipping, the stocks, and ear cropping--are no longer tolerated in American law while the death penalty...