INTRODUCTION

 The death penalty is also commonly known as capital punishment. It is a state-sanctioned killing of a person as punishment for actual or supposed misconduct.[1] Death penalty or capital punishment is pronounced by a court of law, in usually rarest of cases. These cases would include heinous and most horrific crimes. Crimes in a time where laws were still not developed or created in order to cover such crimes and provide with proper punishment as well. For example the Ted Bundy case, The case of George Stinney, an eight year old boy who was put on electric for a crime he did not commit, and many more such cases. In this article, we will be discussing the laws regarding the death penalty in the United States of America and other few countries as examples. We will also provide examples in the form of a few case laws.

History of the Death Penalty

(Case Laws in this regard are mentioned below:)

“Initial Ban 

In Furman v. Georgia, 408 U.S. 238 (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.

Reinstatement

In Gregg v. Georgia, 428 U.S. 153 (1976), the Court refused to expand Furman. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence.  Specifically, the Court upheld Georgia’s new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes.

Proportionality Requirement

In Coker v. Georgia, 433 U.S. 584 (1977), the U.S. Supreme Court held that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

In performing its proportionality analysis, the Supreme Court looks to the following three factors:

• A consideration of the offense’s gravity and the stringency of the penalty;
• A consideration of how the jurisdiction punishes its other criminals;
• And a consideration of how other jurisdictions punish the same crime.

Twenty-one years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme 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 Supreme Court found that national consensus rendered the death penalty disproportionate in these cases.

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 Ring v. Arizona, 536 U.S. 584 (2002),  the Supreme Court held that it is unconstitutional for “a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.”

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 to be invalid, the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.

The decision in Kansas v. Marsh, 548 U.S. 163 (2006) offered yet another clarification to the principle of individualized sentencing jurisprudence. Under Marsh, states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing.

Method of Execution

A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal.

State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution. In Baze v. Rees, 553. U.S 35 (2008), the Supreme Court held that the lethal injection does not constitute a cruel and unusual punishment. The Supreme Court in Baze also applied an “objectively intolerable” test to determine if the method of execution violates the Eighth Amendment’s ban on cruel and unusual punishment. The legality of lethal injection was upheld in Glossip v. Gross, 576 U.S. (2015).

Classes of Persons Ineligible for the Death Penalty

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court decided that executing intellectually/developmentally disabled criminals violates the ban on “cruel and unusual punishment” because their cognitive disability lessens the severity of the crime, and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 556 U.S. 825 (2009), the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled developmentally disabled before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate disability claims.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court banned the death penalty for all juvenile offenders. The majority opinion pointed to teenagers’ lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes.

In Hall v. Florida, 572 U.S. (2014), the Supreme Court held that a brightline IQ threshold may not decide whether someone is intellectually/developmentally disabled for the purpose of being eligible for the death penalty.”[2]

There are many forms in which the “death penalty” takes place. A prisoner who has been sentenced to death and awaits execution is condemned and is commonly referred to as being “on death row”. Etymologically, the term capital (lit. ’of the head’, derived via the Latin capitalis from caput, “head”) refers to execution by beheading.[3] In addition to this, there are many other methods that are carried out, this majorly depends on which country the crime was committed and their established laws. Different methods include: Hanging the accused followed by various countries, stoning can be seen in Islamic countries, electrocution and lethal injection, and shooting or gassing in earlier times, to name a few. Estimates reveal that five to ten percent of all inmates on death row suffer from mental illness.[4] There have been some calls for a ban on the imposition of the death penalty for inmates with mental illness.[5] Executions still take place for those with clear intellectual disabilities due to poor legal representation and high standards of proof.[6]

“The federal death penalty applies in all 50 states and U.S. territories but is used relatively rarely. There are 40 prisoners on the federal death row, most of whom are imprisoned in Terre Haute, Indiana. Sixteen federal executions have been carried out in the modern era, all by lethal injection, with 13 occurring in a six-month period between July 2020 and January 2021.The federal death penalty was held unconstitutional following the Supreme Court’s opinion of Furman v. Georgia in 1972. Unlike the quick restoration of the death penalty in most states, the federal death penalty was not reinstated until 1988, and then only for a very narrow class of offenses. The Federal Death Penalty Act of 1994 greatly expanded the number of eligible offenses to about 60. The use of the federal death penalty in jurisdictions that have themselves opted not to have capital punishment—such as Washington, D.C., Puerto Rico, and many states—has raised particular concerns about federal overreach into state matters.[7]

The death row pronounced to George Stinney’s was a clear case of judicial murder. Judicial murder is the intentional and premeditated killing of an innocent person by means of capital punishment.[8] The Oxford English Dictionary describes it as “death inflicted by process of law, capital punishment, esp. considered to be unjust or cruel”.[9] Each state has its own version of death penalty laws. The power to pronounce the death penalty on an accused will also lie on Congress and they can do the same for crimes that are contemplated as “capital offences”.

What does the Eighth Amendment say?

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Supreme Court’s 1972 decision in Furman v. Georgia, finding constitutional deficiencies in the manner in which the death penalty was applied, but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. The ruling effectively constitutionalized capital sentencing law and involved federal courts in extensive review of capital sentences.

Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. In Furman and the five 1976 cases that followed, in which the Court reviewed laws that states had revised in response to Furman, the Court reaffirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review.

Since 1976, the Court has issued many decisions on applying and reconciling the principles it has identified for applying the death penalty. In particular, the Court has held that sentencing discretion must be limited to preventing courts from arbitrarily imposing the death penalty. Accordingly, the Court has established that courts should follow guidelines that narrow and define the category of death-eligible defendants. Jury discretion, however, must be preserved in order for jurors to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.”[10]

This clause clearly states that it legalizes the death penalty or capital punishment. However, provided due process of law is set in motion, proper protocols and procedures need to be followed when coming to a decision on pronouncing the death penalty to a prisoner. George Stinney’s case is a truly great example of this. This also avoids the act of judicial murder as mentioned above, which clearly took place in George Stinney’s case. For more information on the George Stinney case, please refer to George Stinney: The story of a 9-year-old boy on the electric chair   – Layman Litigation

“Over the years, the Court has taken on many cases in regards to the 8th amendment and capital punishment. As time has gone on, the 8th Amendment has become more restrictive in its use, growing with the people. For example, Trop v. Dulles demands that the 8th amendment be analyzed through an evolving standard of decency. The case law and precedent in this area tells us that the death penalty today is unconstitutional. Trop v. Dulles is the first landmark case when looking at modern death penalty jurisprudence. In Trop v. Dulles, the Court ruled that citizenship could not be taken away as a form of punishment. (15) Once given citizenship, it cannot be taken away— “Citizenship is not a license that expires upon misbehaviour.”(16) Drawing again from Brettschneider, the state cannot take away a life without taking away that person’s citizenship, going against the holding in Trop v. Dulles. (17) The majority in Trop also acknowledged that when it comes to analyzing and interpreting the 8th amendment, “the amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”(18) So, again, as the nation and the people grow, and norms are changed, the 8th Amendment has to change with it. The Court and the states have been applying an evolving standard of decency long before the Court said explicitly to do so. Though public hangings, floggings, and tarring and feathering were all legal and common practices, they were all slowly outlawed because the people realized that these practices were indecent; they were cruel and unusual. If we never evolved as a society when it came to regarding punishments, these punishments, which are now so obviously cruel and unusual, could have lasted a lot longer if we did not apply an evolving standard of decency.”[11]

CONCLUSION 

There are various cases in which the death penalty has gone wrong and should not have happened in the first instance. At the same time, there are crimes that are currently taking place where the concerned authorities take their own sweet time to even arrest the accused, let alone pronounce the death penalty. What are your views on this? Should there be stricter laws in order to stop heinous crimes especially when it concerns woman’s safety?

[1] ‘Capital Punishment’ in Internet Encyclopedia of Philosophy.

[2] death penalty | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[3] Kronenwetter, Michael (2001). Capital Punishment: A Reference Handbook (2 ed.). ABC-CLIO. ISBN 978-1-57607-432-9. Page 202.

[4] J. Wilson, Richard (2016). “The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition”. Washington and Lee Law Review. 73 (3): 1470.

[5] “Mental Illness”. Death Penalty Information Centre.

[6] “Intellectual Disability”. Death Penalty Information Centre.

[7] Federal Death Penalty | Death Penalty Information Center

[8] Fowler, H. W. (14 October 2010). A Dictionary of Modern English Usage: The Classic First Edition. OUP Oxford. p. 310. ISBN 978-0-19-161511-5.

[9] Judicial murder at OED.

[10] Overview of Death Penalty | Constitution Annotated | Congress.gov | Library of Congress

[11] Pineo, Samantha (2019) “Controversy and the Death Penalty,” Across the Bridge: The Merrimack Undergraduate Research Journal: Vol. 1 , Article 5. Available at: https://scholarworks.merrimack.edu/atb/vol1/iss1/5.