Landmark Cases: Gregg v. Georgia

Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made, and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens, and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.

 -- Justice White

Today it was a set of five cases that as a whole involved the upholding of the constitutionality of the death penalty.  A few years before, in Furman v. Georgia, a 5-4 Court merely held that the executions in that set of cases was unconstitutional. There was a belief by some, both in the majority and dissent, that it meant the end of the death penalty. But, in hindsight, that was dubious with Justice White (with a "it is applied too seldom to be rational" argument) -- a conservative leaning justice on criminal justice issues -- being the deciding vote.

Only two firmly said it was unconstitutional in all cases. McGautha v. California shortly before decided by a 6-3 vote that special rules and procedures were not necessary to guide juries determining if someone deserved the death penalty. This would "appear to be tasks which are beyond present human ability," a statement that might very well have a lot of truth to it.  That was decided as a matter of due process. Three justices in Furman in effect found the process too arbitrary for meet Eighth Amendment purposes, Justice Stewart comparing it to being struck by lightening. Justice Douglas emphasized the equal protection problems (including class).  Brennan/Marshall took the complete route.

Justice Powell had the lead dissent and basically said that the death penalty was assumed to be constitutional up until then, so what changed? Justice Blackmun provided a personal statement that stated he was against it morally but constitutionally, it's too soon to deem it illicit. Rehnquist emphasized that it should be left to the political processes, given it is not a clear case for being unconstitutionality. Burger went the "if I was a legislator" route without being quite as emotional about it. Justice Blackmun figured that by the mid-1990s that it was time.

A few random cases aside, the starting point of the modern death penalty process in the Supreme Court is often seen as a brief dissent largely a product of Alan Dershowitz that originally was a much longer effort. As is, it focused on death for rape and non-homicide offenses in general. Three justices joined the dissent and it was a red flag that the justices were interested. Soon, executions came to a halt until the matter was settled. The person -- as is often the case -- lost the battle, but won the war. He was not executed and I found note of him into the 1990s at least. 

Basically, the death penalty is a matter of "how much justice"?  Justice White is correct the "mistakes will be made" in all criminal justice systems. The question really here how much are you willing to accept here, especially when life is involved. The net result of these cases is that the death penalty process was standardized. A book co-written by one of the guests argued that the net result there was not much less arbitrariness, but people were/are more likely to believe it is more fair.  I would think that it was of some help (at least to those like those under eighteen that now are not executed at all), but I surely do not know writ large.

The plurality said that the Eighth Amendment at least required standards and that each individual needed to be judged; no mandatory death penalty. This resulted in a split of the cases involved. Four (including Blackmun who just cited his Furman opinion) though the standards were okay and so were the mandatory punishments that states passed to answer the arbitrary problem. Overall, after Furman, the states showed a basic wish for a death penalty.  Justice Marshall argued they weren't really aware of all the facts. If they were, they would agree with him the death penalty was excessive and cruel and unusual overall.  Deterrence wasn't shown and other means were available to advance retribution. Brennan focused on dignity.

At the end, Justice Blackmun said he would no longer "tinker with the machinery of death," and other justices (including Powell after he left the Court) in effect agreed with him one way or the other.  But, the death penalty continued, including one last week.  To me, a big issue is that it seems an arbitrary few are executed. Of course, there are various other problems with the system and individual cases.  This includes problem with the procedure itself, nitrogen gas not likely to "solve" that any more than past attempts to make things more humane.  The defendants here had various fates, including being released, the only one being killed is the lead one -- he died in a bar fight after escaping from prison right before his scheduled execution.

Personally, I think Justice Blackmun was correct to believe back in the beginning that the death penalty wasn't per se unconstitutional in the early 1970s.  But, I think the basic ruling in Gregg v. Georgia and the companion cases was appropriate.  Taking all the constitutional interests (due process, equality, cruel and unusual, republican government etc.) as well as good public policy, I would have opposed the death penalty.  Murder in prison and other special cases would raise less opposition though states and nations somehow handle those too without a death penalty.  And, a case by case, issue by issue, state and federal, approach over the decades would be broader in scope. Eventually, especially in courts only applicable to a particular state, experience would make a broader constitutional claim stronger.  Tinker tinker.

I am not really sold on the Justice Brennan dignity approach as to an execution treating an inmate as a "non-human." Why so?  We sacrifice people in wars without necessarily robbing them of dignity. Well, at least in theory.  That might be a stronger case -- in practice, the system robs people, including those who carry it out, of dignity.  Blackmun argued that in theory but not in practice the system was valid. I think that is a strong argument.  It is deprivation of life with due process.* The Fifth and Fourteenth Amendment are limits, not mere grants to execute.

The death penalty cases argued "death is different" and in certain ways warrants extra protections. This seems obvious though the crime as well is different.  Ultimately, we do particularly honor life in this country, and the good and necessity of executing a few murderers via a flawed system is very unclear to me. An expert in sentencing policy has noted he is concerned too much emphasis is given to executions, so many other people's needs given much less attention.  But, it's natural (and appropriate) to treat a life more carefully, and those who particularly fight the death penalty are more likely to care about the other groups as well.

Ultimately, I oppose the death penalty, including because people do not have the full guilt warranting an execution, which at any rate is done by a process that leaves a lot to be desired.

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* It is often seen as obvious that the death penalty is constitutional since there are multiple provisions that speak of procedures to deprive life. But, again, the process has to be "due" and there are other provisions such as equal protection that also has to be followed. And, over time, especially with the development of prisons and procedures, capital punishment could become unconstitutional.  At least, in part.

I'm sympathetic at times when people think the courts, at least not in a one size fits all rule, should be careful before broadly deciding "cruel and unusual." These constitutional rules aren't just for the courts; they also are for the "political branches" when setting up policy. Also, at times, a case is basically a matter of first principles.  The execution would be acceptable in a vacuum.

Note: I tried to flag this on Twitter, but the Landmark Cases website still leaves out a key word when quoting Marshall's dissent: "any individual concerned about conforming his conduct to what society says is 'right' would fail to realize that murder is 'wrong' if the penalty were simply life imprisonment.”  The first part of the sentence: "It is inconceivable that."