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THE DEATH PENALTY

The Death Penalty in the 1960s

In 1970 thirty-nine states allowed the death penalty for some crimes. Six states had abolished the death penalty in the 1960s, and about 40 percent of the people who were asked in public-opinion surveys said that the death penalty should be abolished. States were executing few in-mates, largely because death-penalty opponents were mounting a legal campaign to obtain stays of execution in every case. During the 1960s about forty persons a year were sentenced to death, but only a few were executed. No one was executed in the years from 1968 to 1971.

Challenges

The legal campaign against the death penalty was led by the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund (LDF) and the American Civil Liberties Union (ACLU). The LDF had long been concerned with the death penalty because it was more often imposed on blacks than on white people who had committed the same crime. The LDF mounted a campaign to challenge the constitutionality of the death penalty precisely because it did not provide "equal protection of the laws," as required by the Fourteenth Amendment. In denying equality, the LDF argued, the death penalty became cruel and unusual punishment, prohibited by the Eighth Amendment.

Furman v. Georgia

The LDF brought challenges to several states' death penalty statutes. The Supreme Court decided four of those cases in Furman v. Georgia (1972). In a close decision five justices held that the death penalty, as then administered, was an unconstitutional violation of the prohibition against cruel and unusual punishment. Only two justices held that the death penalty was unconstitutional in all circumstances. The other three justices cited the arbitrary criteria for the sentence. They compared the "wanton" and "freak[ish] manner" in which the death penalty was imposed with being struck by lightning. Four justices disagreed with the decision, arguing that the Court was legislating its own preferences rather than interpreting the Constitution.

Rethinking the Law

Thirty-five states enacted new death-penalty laws in the three years after the Furman v. Georgia decision. These laws were designed to limit the arbitrariness of the death penalty. The Supreme Court considered these new laws in Gregg v. Georgia (1975). The LDF once again led the argument against the death penalty. They argued that, even under the new laws, the penalty was imposed arbitrarily and that its imposition continued to discriminate against blacks. They also argued that the death penalty was never deserved for any crime and that crime prevention could better be addressed through effective policing.

Democracy and Rights

The dilemma for the Court was between individual rights and the democratic will. The Court was concerned that in this contentious issue thirty-five state legislatures had tried hard to enact constitutional death penalty statutes after Furman v. Georgia, showing that they supported the death penalty. In a democracy, many justices believed, those decisions deserved some respect from the Court. On the other hand, the point of a constitution is to say that there are some things legislative majorities cannot take away from the citizens, such as their right to free speech.

The Gregg v. Georgia Decision

On 2 July 1976 the Supreme Court decided that it could not take the power to decide from legislatures. They noted the difficulty of telling whether the death penalty deterred any crimes at all. For the seven-member majority the divisiveness and uncertainty of the issue meant legislatures should decide it. They argued that as long as the state specified conditions for the death penalty—Georgia listed ten aggravating circumstances, including, for example, murder committed during the commission of a felony—legislatures could demand its imposition.

After Gregg v. Georgia

In 1977 almost six hundred prisoners were under a death sentence, and the number increased for the rest of the decade. However, states did not execute many people in those years. Attorneys for those inmates continued to pursue every legal avenue of appeal. While Americans supported the death penalty, they were actually reluctant to execute prisoners.