The dual purpose of the Eighth Amendment of the U.S. Constitution originated from the English Bill of Rights of 1689. These purposes were to ensure that justice was administered in an appropriate proportion to the crime and in a non-discriminatory manner where there was no unequal enforcement of severe sentences such as capital punishment or life imprisonment (United States Supreme Court, Douglas 5). These harsh and lifelong verdicts are designed to only be administered when an equally irregular and heinous crime is committed. Verdicts of this and all natures must be enforced uniformly and equally among citizens. If verdicts and laws fail to be enforced and administered in this manner, then these verdicts and laws need to be abandoned. (United States Supreme Court, Powell 226). This is due to how each citizen is entitled to equal protection of laws under the United States Constitution. Amend. XIV. Sec 1. If it is discovered that laws are imposed disproportionally to any group in America it violates this amendment and therefore its application is unconstitutional. While the law’s language itself may not violate the constitution, its application can render any law unconstitutional.
In 1972, this is what occurred in the Supreme Court case Furman v Georgia. The Supreme Court‘s decision on Furman v Georgia resulted in a halt on nationwide statues and downgraded all death sentences to life imprisonment. In Furman v Georgia it was successfully argued to the court that capital punishment was being imposed unconstitutionally on the grounds of the cruel and unusual punishment clause found in the Eighth and Fourteenth Amendments (United States Supreme Court 1). This was proven by the fact that nationally capital punishment is imposed in a disproportionate manner to African Americans, the poor, and unpopular minorities. (United States Supreme Court 12). In this case, Justice Douglas found “the punishment cruel and unusual because it is ‘arbitrarily’ invoked. [Justice Douglas] finds that ‘the basic theme of equal protection is implicit’ in the Eighth Amendment, and that the Amendment is violated when jury sentencing may be characterized as arbitrary or discriminatory” (United States Supreme Court 211). Justice Douglas’s views were echoed by his fellow Justices who ruled that capital punishment had been imposed in a capricious and discriminatory manner. Declaring that capital punishment’s discriminatory application was unconstitutional, not the act of capital punishment itself.
Following this decision states were ordered to create clever and effective statues to ensure the equal non-discriminatory application of the death penalty. Otherwise, the death penalty would need to be abandoned because it was unconstitutionally enforced (Winchester 28). Only if this were accomplished would it be possible for the United States to allow capital punishment as a reserved verdict for heinous and vile crimes. If capital punishment could not be imposed on the state or national level in a non-discriminatory manner post-Furman v Georgia, capital punishment would unambiguously be defined as unconstitutional. Soon after this Supreme Court case, many states created new legislation, statues, and policy to create a non-discriminatory capital punishment scheme. Whether the enacted scheme works will only be known after decades of its implementation. According to Furman v Georgia, any state in which capital punishment is randomly discriminatory imposed it violates the Fourteenth and Eighth Amendments of the constitution under the equal punishment of laws clause and the cruel and unusual punishment clause and should thus be ruled null and void (Winchester 1). The policy should be then abandoned or again reformed to ensure compliance with the equal protection clause in Amend. XIV. Sec 1. and cruel and unusual punishment Amend. VIII.
Decades later, the State of Washington had a case much alike Furman v Georgia. In State v. Gregory, it was successfully argued to the Supreme Court of The State of Washington that capital punishment had been discriminatorily imposed on citizens. The capital punishment scheme passed in reformation from Furman v Georgia did not accomplish the goal of ensuring a non-discriminatory imposition of the death sentence. The statues which were designed to ensure equal and nondiscriminatory application of the death penalty still allowed the unconstitutional application of the death penalty. Racial factors and prejudices still had an impact on citizen's sentencing. This is unconstitutional and unallowable under the Eighth Amendment. For this reason, Washington State declared capital punishment unconstitutional (FOX 69). The main evidence used to support this claim was the Beckett Report, which indisputably proves that race and the imposition of the death penalty are correlated (FOX 72). Specifically, the Beckett Report showed that African Americans were sentenced to death at a rate of 4.5 times that of white defendants (FOX 81).
Evident in the Beckett Report, the death penalty is disproportionately ruled to African American defendants. Specific case characteristics such as degree of severity cannot explain the disparities present in capital punishment sentencing. Capital punishment is not equally imposed on citizens but instead, its use is arbitrary and random. The data reported by the Beckett Report demonstrates that capital punishment is imposed in a discriminatory and racially biased manner, in contravention of the Furman v Georgia decision and the Eighth Amendment (FOX 83).
The Washington State capital punishment scheme had already been reformed many times in an attempt to be applied in a non-discriminatory manner in accordance with the constitution. However, these reforms were proven unsuccessful by this statistical study. In response to this data, Washington State abandoned the death penalty.
Post State v. Gregory it was known that capital punishment in Washington was applied discriminatorily and in a racist manner and was for that reason abandoned (Harvard Law Review Association 1). That could imply that other states also had unsuccessful reformations post-Furman v. Georgia. Washington state was the first state to ever declare capital punishment unconstitutional basing its decision from statistical evidence of discrimination by race (Harvard Law Review Association 1). This truth and precedent can lead us to an altering conclusion. If national or state statistical evidence proved that the death penalty was imposed in a discriminatory manner, then capital punishment could be abandoned as a result.
In fact, post-Furman v Georgia. and pre*-State v. Gregory,* during 1987 in McCleskey v Kemp this was the issue presented to the United States Supreme Court. The decision of the court upheld capital punishment and by doing so rejected the claim that the current imposition of the death penalty is correlated with race (Harvard Law Review Association 1). Even though at the time defendants convicted of murdering African American victims were 4.3 times less likely to be sentenced to death than were defendants convicted of murdering whites. (Harvard Law Review Association 4). A statistical study used in this case illustrated a p-value of 0.11 when describing the correlation between the death penalty and race. This means that there was only an 11% chance that the death penalty and race were not correlated. This statistically proves the correlation and racial bias present in the judicial system. (Harvard Law Review Association 3). Statistical evidence that capital punishment nationally violates the constitution exists as unequal and discriminatory imposition of the law violates the constitution per the equal protection clause in Amend. XIV Sec 1. and the cruel and unusual clause in Amend. VIII. These two pieces of evidence seem contradictory to the ruling of the court. So why did the court still rule this opinion in favor of keeping the death penalty?
The McCleskey Court feared that if the death penalty could be ruled unconstitutional based on unequal imposition then so could every other law. If true, then the court would be forced to rule in this manner on any following laws (Harvard Law Review Association 8). Nonetheless, capital punishment was ruled constitutional because of the fear of creating a slippery slope which could lead to complete dismantlement of the entire criminal justice system. The Gregory court decided that disparities in capital punishment sentencing could not be ignored any longer and to ruled capital punishment unconstitutional (Harvard Law Review Association 8). Potentially putting their whole judicial system at risk of dismantlement. Now post-State v. Gregory where the criminal justice system remains intact within Washington, if this issue was presented to the Supreme court would we see the same ruling or a national abandonment of capital punishment? So, let’s make that case, first of all, is capital punishment still discriminatorily imposed?
The statistics today state that “capital punishment affects only the disadvantaged of our society. Of approximately 650 persons on death rows throughout the United States, they are, almost without exception, poor, black, or ignorant.” (Long 3). Yes, capital punishment is still nationally imposed in a discriminatory manner in violation of the equal protection clause in Amend. XIV Sec 1. and the cruel and unusual clause in Amend. VIII. according to the previous court ruling of Furman v Georgia and State v. Gregory. Based on this evidence it can be ruled that capital punishment is unconstitutional on a national level and is in requirement of another national reformation to the capital punishment scheme as done post-Furman v Georgia. Alternatively, since previous reform was already unsuccessfully attempted it may make more sense to follow in Washington states model and many other states which have already abandoned capital punishment. Which was the preferred method Justice Powell stated above.
Additionally, there is another perspective that uses the same data, the discriminatory imposition of capital punishment, to support the abandonment of capital punishment while avoiding the Eighth Amendment slippery slope issue. The original intention and justification of capital punishment was the deterrence of crime. However, recent studies have shown that capital punishment does not deter crime any more so than a life in prison sentence. If proven true by following studies, then capital punishment could be ruled unconstitutional on the grounds of cruel and unusual, because it would be irrational and would cause pointless suffering for convicts. It is pointless because its function of deterrence works to the same degree as a life imprisonment sentence (Long 9). Additionally, since capital punishment is randomly and variably imposed then it does not serve the function of deterrence of a crime because there is no specific crime that makes suspects candidates for capital punishment (Barry 20). This argument also uses the statistical evidence available, the discriminatory imposition of capital punishment, and applies how capital punishment would therefore be imposed unconstitutionally regardless of the Eighth Amendment slippery slope issue. Instead illustrating that capital punishment no longer serves its intended function of deterrence because it is discriminatorily imposed on citizens and therefore no longer deters all citizens, just a minority group of citizens.
It is indisputable that racial disparities and discriminatory sentencing exist within capital punishment sentencing. The purpose of the Eighth Amendment as derived from the English Bill of Rights of 1689 was to ensure the equal imposition of the law and appropriate judicial response to the crime committed. In our past and current democracy, it has been demonstrated by Furman v Georgia, Gregory v State, the Beckett Report, and Dr. Long’s research that the scheme of capital punishment is discriminatory. Even after the reformation of capital punishment statues, discriminatory imposition persists. This violates the constitution of the United States under the equal protection clause Amend. XIV. Sec 1. and cruel and unusual punishment clause Amend. VIII. Only through reformation or abandonment of capital punishment schemes may we ever see the end of its discriminatory imposition. However, reformation has already been unsuccessfully tried, should it be tried again? Could this even mean that capital punishment is discriminatory in nature and reform will never be successful, so the policy should be abandoned? Answering and solving these questions will require an unimaginable amount of devotion to justice and courage. This is a task perfect for the Supreme court of the United States. Inevitably the Supreme Court will decide the appropriate actions and one day address capital punishment for the last time. For the sake of those who have been unconstitutionally sentenced to death row, we can only hope that this day comes sooner rather than later.
Barry M. K., The Death Penalty and the Fundamental Right to Life, 60 B.C.L. Rev. 1545 (2019), https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3785&context=bclr
Founding Fathers. (1787, September 17). The Constitution of the United States. Retrieved from https://www.archives.gov/founding-docs/constitution-transcript
FOX, N. M., & SILVERSTEIN, L. J. (2015, June 30). IN THE SUPREME COURT OF THE STATE OF WASHINGTON. Respondent, v. ALLEN EUGENE GREGORY, Appellant. Retrieved from http://www.courts.wa.gov/content/Briefs/A08/88086-7 Reply Brief.pdf#search=ALLEN EUGENE GREGORY
Harvard Law Review Association. (n.d.). STATE CONSTITUTIONAL LAW — CAPITAL PUNISHMENT — WASHINGTON STATE SUPREME COURT DECLARES DEATH PENALTY UNCONSTITUTIONAL IN WASHINGTON [Abstract]. *State v. Gregory, 427 P.3d 621 (Wash. 2018).*Retrieved from https://harvardlawreview.org/2019/04/state-v-gregory/
Long, T. A. (n.d.). CAPITAL PUNISHMENT-"CRUEL AND UNUSUAL";. The University of
Chicago Press. Retrieved from https://www.jstor.org/stable/2380249
United States Supreme Court. (1971). FURMAN v. GEORGIA. CERTIORARI TO THE SUPREME COURT OF GEORGIA. Retrieved from https://tile.loc.gov/storage-services/service/ll/usrep/usrep408/usrep408238/usrep408238.pdf