“Our argument is essentially that death is different. If you don’t accept the view that for constitutional purposes death is different, we lose this case.”
—Attorney Anthony Amsterdam, arguing in Gregg v. Georgia that the death penalty is unconstitutional.
Is it moral in this day and age for the state to take a life? Apparently, the majority on the Supreme Court think it is. Four cases before the Court this session will test the scope and application of the death penalty—though none promises to outlaw it altogether.
Most Western countries, including England, France, and Germany, abolished the death penalty long ago, as have 19 American states and the District of Columbia. Though recent polls show that a majority—56 percent—of Americans believe that the death penalty is sometimes just and appropriate, that is the lowest level of support reported in the last 40 years.
In 1972, in Furman v. Georgia, the Supreme Court came close to abolishing the death penalty as “cruel and unusual punishment” prohibited by the Eighth Amendment. The case did not ban capital punishment, but because the justices ruled that it was cruel and unusual when unfairly applied, it led to a de facto moratorium throughout the United States. That moratorium came to an end in 1976. The Constitution itself contains the tension: it expressly authorizes the death penalty since the Fifth Amendment refers to answering to a “capital crime” and states that the government may deprive persons of life provided there is “due process of law” while the Eighth Amendment outlaws “cruel and unusual punishments.”
The latest legal challenges to the “machinery of death,” a prelude to a legal assault on the constitutionality of the death penalty, involve the death penalty protocols in Oklahoma, as well as Florida, Georgia, Louisiana, and Kansas. On March 30, the Court granted review of three Kansas death penalty cases and heard oral argument in a fourth—a Louisiana case presenting issues of whether a state prisoner who faces the death penalty has an intellectual disability that would preclude capital punishment. In the three Kansas cases, it granted review of the Kansas Supreme Court’s decisions overturning the defendants’ death sentences on the technical ground that their sentencing juries were not told that the defendant did not have to prove mitigating circumstances beyond a reasonable doubt.
The Court also heard argument in the case of a Louisiana man, Kevan Brumfield, sentenced to death before the Supreme Court ruling in Atkins v. Virginia banned the execution of defendants with intellectual disabilities. The Court will determine whether the federal courts must defer to a decision of the state courts that rejected his claim of intellectual disability based solely upon the evidence presented at his trial or whether to credit a subsequent federal district court finding after a seven-day evidentiary hearing that Brumfield is intellectually disabled, and may not be executed.