The Unconstitutionality of the Death Penalty

Why the Death Penalty is Unconstitutional

The death penalty is used in some countries for a range of crimes, from murder to drug-related offenses and even non-homicidal rape. In the United States, it is largely reserved for homicide and some non-homicidal crimes against the government such as treason or espionage.

Since Furman, the Supreme Court has issued a wide variety of decisions attempting to clarify its individualized sentencing jurisprudence.

Due Process

When the Supreme Court in Furman ruled that the death penalty violated the Eighth Amendment’s prohibition on cruel and unusual punishment, it was the beginning of the end of a system that had long denied due process. Justice Stewart called the penalty “harsh and freakishly imposed,” and the Court summarily reversed death sentences nationwide.

The courts require many more safeguards in death-penalty cases, starting with the jury selection. Consequently, trials and appeals last much longer than in other types of criminal cases. This adds greatly to the cost of administering justice, which has led to legislative abolition of the death penalty in Illinois, Connecticut, Montana and elsewhere.

Opposing the death penalty does not mean a lack of sympathy for murder victims. But actual experience establishes that the death penalty does not deter murder. Indeed, it has incited the very crimes it was supposed to deter – such as the case of Daniel Colwell, who killed an off-duty police officer in a parking lot because he feared being executed for another crime.

Equal Protection

Although the Constitution forbids cruel and unusual punishment, states are allowed to retain capital punishment. However, the Supreme Court is responsible for ensuring that state use of the death penalty adheres to our fundamental rights.

In a series of cases culminating in 1972’s Furman v. Georgia, Justices ruled that the death penalty violated equal protection. The Court found that the death penalty was unconstitutional because it was too severe a punishment for the crime and that it lacked consistency, arbitraryity, and offended society’s sense of justice.

Justices also argued that the death penalty was biased against racial minorities, who were twice as likely to be sentenced to death than white defendants. This bias, along with the lack of evidence that the death penalty deters murder and the long time inmates spend on death row, has led many to believe that capital punishment is no longer justifiable.


A fundamental principle of constitutional law is that judicial decisions should be based on objective considerations, and not on personal preferences or whim. A judicial act that does not meet this standard is considered to be “abuse of discretion.”

The Supreme Court has added to this body of legal precedent in several cases. For example, it has ruled that the Sixth Amendment right to trial by jury includes the right to have the jury make factual determinations upon which a sentencing increase may be based.

Furthermore, it has established that it is not a violation of the Eighth Amendment to impose the death penalty if the state has proven beyond a reasonable doubt that aggravating circumstances outweigh mitigating ones. However, this jurisprudence requires that juries have full and complete information to do their jobs properly. Without this requirement, judicial discretion can be abused in ways that distort the jury’s responsibility to decide whether or not to impose the death penalty.


The death penalty is a cruel and unusual punishment under the Eighth Amendment. With little evidence that it deters crime, it is an ineffective use of state resources. It can also cause unnecessary pain and suffering for convicted murderers and their victims.

The Supreme Court recognized this in 1972 in Furman v. Georgia (408 U.S. 238), which ruled that the death penalty violated the Constitution’s ban on “cruel and unusual punishments.” Justices Douglas, Stewart, and White all dissented from this decision.

The Court did not strike down capital punishment altogether in 1976, however, with a group of cases known as Gregg v. Georgia, 428 U.S. 153 (1976). In these cases, the Court held that states could revive the death penalty as long as they developed consistent legal standards for when it was appropriate and provided juries with the ability to make individualized determinations of whether or not to impose the penalty. The Court also affirmed the validity of a bifurcated trial procedure and requirements that juries find one or more statutory aggravating factors before imposing the death penalty.

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