By Kevin Heade

This Article is a response to Executions and the Constitution by Mat Wadsworth.

The tide is turning against the death penalty.  Support for the death penalty is at its lowest point since 1971.  In 1972, the Supreme Court ruled, that the death penalty constituted cruel and unusual punishment as it was then applied.  Furman v. Georgia led to a de facto national moratorium on the death penalty until States were able to ensure that the most severe penalty would no longer be applied in a ”capricious” or “discriminatory manner”.[1] The four year moratorium on the death penalty ended in 1976 when the Supreme Court approved a bifurcated trial system to provide safeguards against the arbitrary imposition of the death penalty. [2]

Since the moratorium was lifted, the death penalty has been limited by the courts and state legislatures. The Supreme Court has ruled that the death penalty is an unconstitutional punishment for rape,[3] and that the Constitution prohibits the execution of the mentally ill[4] and minors.[5]

There have been more developments in the efforts to abolish the death penalty in the last few years than any time in the last generation.  No honest commentator can rightly claim that the death penalty is here to stay.  Rather than focus on Constitutional challenges in federal courts, death penalty opponents are turning to state-based campaigns to abolish the death penalty one jurisdicition at a time.

Illinois became the fourth state in as many years to end the death penalty  in July of this year.  New Jersey abolished the death penalty by statute in 2007.  New Mexico abolished the death penalty in 2009.  The New York legislature has not enacted laws to address its unconstitutional death regime since 2004.

Sixteen states  have abolished the death penalty. Five more  states have not carried out any recent executions.  Over two-thirds of the nations in the world (139) have abolished the death penalty. Sixteen states have seen recent legislative efforts to repeal or restrict the use of the death penalty.

The times, they are a changin’.  Soon, the movement to end the death penalty shall move society to evolve to the point where it is commonly accepted that the death penalty is cruel, inhumane, and must be abolished.  When more states forbid state-sponsored murder as a means punishment than the number of states that endorse murder by the state, then the Supreme Court will have no choice but to rule that the death penalty is unconstitutional under the Eighth Amendment.  Afterall, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[6]  As the last ten years of death penalty abolition action demonstrates, our society is evolving toward a future without the death penalty, proving Martin Luther King’s famous assertion that “the arc of the moral universe is long, but it bends towards justice.

[1] <See Furman v. Georgia, 408 U.S. 238, , 92 S. Ct. 2726,  (1972).

[2] See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, (1976).


[3]  See Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, (1977)



[4] See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, (2002)


[5] See Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, (2005)


[6] Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, (1958)


3 thoughts on “Toward Justice: No Method of Execution Should Be Constitutional

  1. Unfortunately we have embedded in our human history a desire to allow death as punishment. However, if the case law continues to show an increased care for human life, then hopefully we can look forward to a society that prevents the law from taking a life for a life.

    This is definitely something we should want to look forward to, considering that our justice system is imperfect and we can’t tell with 100% accuracy whether or not someone truly is guilty of a crime.

    Do we want to risk the lives of innocent people in order to protect harsh penalties?

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