Assessing the Death Penalty

Is this country moving towards abolishing the death penalty or not?

The United States is not moving toward abolishing the death penalty nor is it moving toward a mandatory use involving all states. Retribution, coupled with religious rhetoric, remains the dominate force behind the death penalty. Much of this society’s citizenry believe in criminals receiving a just desert for the crimes they committed-including death. This judicial system is based in retributive and corrective justice, meaning the judicial system evaluates the seriousness of the crime and the level of intent involved to then hand out what is deemed a just desert. Furthermore, the death penalty debate will continue until it is mandatory across all states thereby eliminating the argument that it is cruel and unusual because it is used too infrequently; or, people of this society call for the elimination of the death penalty all together. Justice Scalia (Rehnquist also holds these views) and Justice Marshall’s viewpoints on the death penalty best describe the above argument. Justice Scalia views the death penalty as an old tired debate not belonging on the Supreme Court docket. He further suggests the death penalty should be a state matter only. Therefore, Scalia supports the death penalty in the majority of cases. Justice Marshall, on the other hand, views the death penalty as a complete violation of the citizenry’s 8th and 14th Amendment rights. He deemed the death penalty as always cruel and unusual. Consequently, Marshall never supported a lower court’s decision to utilize the death penalty as just desert. Through an evaluation of five Supreme Court cases; Coker v. Georgia, Thompson v. Oklahoma, Stanford v. Kentucky, Atkins v. Virginia and Ford v. Wainwright, it is evident this judicial system is in a stalemate regarding the death penalty issue (It is important to note that at times the dissent can be just as important if not more important then the courts actual holdings).

In the case of Coker v. Georgia the issue of concern to the court was whether or not the death penalty is a just desert for the crime of raping an adult woman. The court concluded that the death penalty, in this case, was grossly disproportionate to the crime and level of intent; therefore, Coker’s 8th Amendment rights had been violated. Justice Burger and Justice Rehnquist dissented on the grounds that the Supreme Court should not interfere with the Georgia statute and ruling. The dissenters also concluded the death penalty was just desert in this case because of the petitioner’s repeat offenses. Justice Burger writes; “The court today holds that the state of Georgia may not impose the death penalty on Coker. In so doing, it prevents the state from imposing any effective punishment upon Coker for his latest rape. The court’s holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist” (Mandery 2005, p. 272).
The dissenters argue that States should be left to deal with capital punishment not the Supreme Court. Retribution for Coker’s crime is demanded by the dissent. Coker v. Georgia is a great example of the debate within the Supreme Court itself.

In Thompson v. Oklahoma the issue was whether or not it is cruel and unusual punishment to impose the death penalty on an individual under the age of sixteen. Thompson was fifteen years old at the time he committed a brutal murder. The court vacated the petitioner’s death sentence in light of a “maturing society,” the age of a defendant is relevant and “narrower grounds” was needed then those adopted by the plurality (Mandery 2005, 317). Justice Scalia, The Chief Justice and Justice White join, dissenting. The court’s decision held that the death penalty is to serve two purposes, retribution and deterrence. The court deemed it unacceptable to kill a fifteen year old based on either of those grounds. Scalia’s dissent focuses on the ruling that no one under the age of sixteen should be put to death. Scalia and his joiners concluded that Thompson brutally murdered his former brother-in-law and should be held responsible for his heinous crime. Scalia writes; “There is no rational basis for discerning in that a societal judgment that no one so much a day older then 16 can ever be mature and morally responsible enough to deserve that penalty; and there is no justification except our own prediction for converting a statistical rarity of occurrence into an absolute constitutional ban” (Mandery 2005, p. 321). Scalia leaves the door open for future juvenile cases like Thompson’s. Again the retribution argument, the giving of just desert, is seen within the Supreme Court itself. So far, one can see the players in the judicial system bend the 8th and 14th Amendments to suit their conclusions.

In the case of Stanford v. Kentucky, the issues were whether or not an individual 16 or 17 years of age should be put to death for the crime committed (is it cruel and unusual) and whether or not such ages are protected through the equal protection clause according to the 14th Amendment. The court concurred that there was no violation of either the petitioner’s 8th or 14th Amendment rights, agreeing with the lower court’s decision. Scalia announced the decision. Several justices disagreed with the court’s decision; Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting. The dissenters felt it was cruel and unusual to impose the death penalty on anyone under the age of 18 years old. Justice Brennan speaks of morals and values in his dissent, leaving the door open (once again) for future juvenile cases. Brennan writes, “There are strong indications that the execution of juvenile offenders violates contemporary standards of decency: a majority of States decline to permit juveniles to be sentenced to death; imposition of the sentence upon minors is very unusual even in those States that permit it” (Mandery 2005, p. 329). Justice Brennan points out that our society has always protected their youth through the constitution, specifically the 8th and 14th Amendments. They fear a trend toward killing our youth could develop. This case allows for less rigid protections for the youth of this country making us that much further from being able to abolish the death penalty. Again, one can see how the Supreme Court manipulates the 8th and 14th Amendments to “fit” its conclusions. This begs the question; Do judges work from premises to conclusions or start with conclusions and work to find the premises that “fit” their personal agendas?

In the case of Atkins v. Virginia, the issues were whether or not the death penalty is cruel and unusual if imposed on the mentally handicap, in accordance to the 8th Amendment and does imposing the death penalty on a mentally handicap individual violate the equal protection clause of the 14th Amendment. Justice Stevens announced the courts decision, citing Coker, Penry and Wainwright as premises to their conclusions, “Construing and applying the Eight Amendment in light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the constitution places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender” (Mandery 2005, p. 347). The Supreme Court reversed the lower court’s decision. Justice Rehnquist, Scalia and Thomas join, dissenting; Furthermore, Scalia wrote his own dissent with which the Chief Justice joined, dissenting. Of all the cases explored thus far, Scalia’s dissent exploits the manipulation of the 8th and 14th Amendments. Scalia writes; “Today’s decision is the pinnacle of our Eight Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding conditions that render an otherwise just death penalty inappropriate” (Mandery 2005, p. 348). Scalia fails to acknowledge that justice tempered with mercy for the young and the mentally handicap is socially acceptable-if not demanded.

In the case of Ford v. Wainwright, the issue was whether or not it is cruel and unusual to impose the death penalty on the insane. The court found that the constitution does in fact forbid the killing of the mentally handicap. This was a landmark case in our treatment of the insane regarding the death penalty. Justice Rehnquist and the Chief Justice dissented. Rehnquist views this case as an open door for insanity pleas in capital murder cases. He chooses the slippery slope argument-the what ifs. Rehnquist writes; “Armed with these facts, and shielded by the claim that it is simply keeping faith with our common-law heritage,’ the Court proceeds to cast aside settled precedent and to significantly alter both the common-law and current practice of not executing the insane” (Mandery 2005, p. 370). Rehnquist discounts mercy for the insane as inconsistent with the constitution. The Court’s decision to show the insane mercy is not a step toward abolishing the death penalty. The decision simply showed mercy to a unique group of individuals.

In conclusion, the death penalty is heavily debated in today’s society. Is it right v. wrong? An eye for an eye? Or, are we to show people mercy and eliminate the use of the death penalty all together? As we have seen, these questions are not easily answered. Values and beliefs are both social and individualistic in nature. Group values vary within the subcultures of our society. This is the cause of the stalemate regarding the death penalty. All five cases show our system continually provides us with emotionally inconsistent decisions based in personal beliefs and values. The Court manipulates the language of the Constitution to suit its conclusions. We need a consistent, ethical approach to the death penalty. Regardless if we abolish the death penalty or mandate it across all States, it is our duty as a nation to seek the most humane and Constitutional approach to the death penalty.


1. Mandery, E. J. JD., (2005). Capital Punishment A Balanced Examination.
Sudbury, Massachusetts: Jones and Bartlett.