Since the death penalty is traditionally considered a general power of state government, most cases that reach the Supreme Court involve challenges to state execution processes. These are usually constitutional challenges based on the Eighth Amendment’s prohibition against cruel and unusual punishment.
The right to a fair trial is crucial in capital cases. In the 27 states that allow death sentences, prosecutors can only request execution after a judge has found guilt, and jury members must unanimously agree to approve the sentence. During the sentencing phase, jurors must consider aggravating and mitigating factors, and they can hear evidence from experts or witnesses.
During the 1970s and 1980s, the Supreme Court passed decisions that expanded defendant rights in capital offense trials. It also ruled that the Eighth Amendment’s ban on cruel and unusual punishment must draw its meaning from evolving standards of decency rather than the original meaning when it was written.
Since then, the Court has narrowed capital punishment’s scope in many ways. It has ruled against the death penalty for mentally disabled offenders (Atkins v. Virginia, 2002), juvenile offenders (Roper v. Simmons, 2005), and those convicted of the murder or rape of an adult with a child (Kennedy v. Louisiana, 2008). Support for the death penalty varies widely by religious affiliation. Around two-thirds of Protestants favor it, while around six-in-ten Catholics and more than half of those who say they are religiously unaffiliated oppose it. Similarly, views on the death penalty vary by state. Generally, the majority of the conditions that practice it have lethal injection as their primary method for execution.
Thirty-one states retain the death penalty, and most cases are handled by state governments rather than by the federal government. Most states have death qualification statutes, and some have additional procedural protections, such as requiring that potential jurors give equal weight to mitigating and aggravating factors in sentencing determinations.
The Supreme Court’s decisions in Morgan and Witt established that jurors who will not follow the law during either the guilt or sentencing phase of a capital case should be disqualified. However, over two decades after those decisions, most states that directly address death-qualification criteria do not incorporate the protections afforded in those decisions. Instead, they use language associated with an outdated Supreme Court decision, and most exclude jurors whose views are substantially impaired because of their opposition to the death penalty.
In addition, the laws of most states (except Indiana and Missouri) allow the judge to decide the sentence in the event of a hung jury. This will enable states to impose life without parole sentences for those crimes that are not eligible for the death penalty. The legal issues of jury nullification are further complicated because views on capital punishment vary widely across religious groups.
In the United States, federal courts can prosecute cases involving capital crimes. The federal criminal code includes several crimes punishable by death, including murder, treason, and aircraft piracy. The federal government also permits states to impose the death penalty, although no state has done so since Virginia in 2020.
Although the Supreme Court has upheld the death penalty in most cases, the Constitution imposes certain restrictions on the way it can be applied. The Eighth Amendment prohibits cruel and unusual punishment, and several Supreme Court rulings have challenged various aspects of using the penalty.
For example, the Court ruled in Furman v. Georgia that mandatory death penalty laws are unconstitutional. In addition, the court ruled in Gregg v. Alabama that all indigent defendants have the right to a public defender for capital cases.
The Court has also ruled that the death penalty cannot be imposed for crimes committed by juvenile offenders (Roper v. Simmons, 2005) because they have diminished culpability and are less likely to understand the consequences of their actions. The Court has also ruled that a jury must find aggravating and mitigating factors in a case rather than a judge.
The Court has also ruled that mentally disabled people may not be executed because they are not capable of understanding the nature and rationale for their punishment at the time of execution. This is despite many of them being subjected to due process violations throughout their legal proceedings.
The United States is one of the four developed countries that still practice capital punishment. While supporters argue that it deters crime and provides the ultimate justice for murder victims, opponents point to the high rate of botched executions and concerns about racial bias.
Several constitutional issues have been raised regarding the death penalty’s implementation. In 1972, the Supreme Court struck down existing state laws in Furman v. Georgia as violating the Eighth Amendment’s ban on cruel and unusual punishment. The Court ruled that the statutes unreasonably subjected prisoners to an excessive risk of physical harm, particularly in poor and minority communities. The Court also found that the laws disproportionately targeted black prisoners.
Following Furman, most states amended their laws to comply with the Court’s ruling. Some passed mandatory death penalty statutes, which specified a death sentence for anyone convicted of certain types of murder. Other states adopted “bifurcated” trial and sentencing procedures, with various procedural limitations on the jury’s ability to pronounce a death sentence.
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