The ACLR is pleased to publish our first comprehensive article online.  Many thanks go to Professor John D. Bessler for writing the article, Tinkering Around the Edges: The Supreme Court's Death Penalty Jurisprudence.  The Essay examines America’s death penalty forty years after Furman, providing a critique of the Supreme Court’s existing Eighth Amendment case law.

The article can be found by clicking here

The introduction follows below. 

Tinkering Around the Edges:

The Supreme Court’s Death Penalty Jurisprudence

By John D. Bessler*

I.                   Introduction

The U.S. Supreme Court has not squarely confronted the death penalty’s constitutionality since the 1970s. In that decade, the Supreme Court actually ruled both ways on the issue. In McGautha v. California,[1] the Court first held in 1971 that a jury’s imposition of the death penalty without governing standards did not violate the Fourteenth Amendment’s Due Process Clause.[2] But then in 1972, in the landmark case of Furman v. Georgia,[3] the Court interpreted the Cruel and Unusual Punishments Clause to hold that death sentences—as then applied—were unconstitutional.[4] In that five-to-four decision, delivered in a per curiam opinion with all nine Justices issuing separate opinions,[5] U.S. death penalty laws were struck down as violations of the Eighth and Fourteenth Amendments.[6] The death sentences of the “capriciously selected random handful” of those sentenced to die, one of the Justices wrote, are “cruel and unusual in the same way being struck by lightning is cruel and unusual.”[7] Other Justices also emphasized the arbitrariness of death sentences,[8] with some focusing on the inequality and racial prejudice associated with them.[9]

In the year America celebrated its bicentennial, however, the Supreme Court reversed course yet again, approving once more the use of executions.[10] After thirty-five states reenacted death penalty laws in the wake of Furman,[11] the Supreme Court upheld the constitutionality of death penalty statutes in Gregg v. Georgia[12]and two companion cases.[13] The Court ruled that laws purporting to guide unbridled juror discretion—and requiring capital jurors to make special findings[14] or to weigh “aggravating” versus “mitigating” circumstances[15]—withstood constitutional scrutiny.[16] The Court in Gregg emphasized that the Model Penal Code itself set standards for juries to use in death penalty cases.[17] Only mandatory death sentences, the Court ruled that year, were too severe and thus unconstitutional.[18] In its decision in Woodson v. North Carolina,[19]the Court explicitly ruled that mandatory death sentences—the norm in the Founding Fathers’ era[20]—were no longer permissible and had been “rejected” by American society “as unduly harsh and unworkably rigid.”[21]

This Essay examines America’s death penalty forty years after Furman, providing a critique of the Supreme Court’s existing Eighth Amendment case law. Part II briefly summarizes how the Court, to date, has approached the constitutionality of executions, while Part III highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. The rarity of executions—along with the public’s unease with them—is highlighted in Part IV, whereas Part V summarizes a similar unease as regards executions that existed in the Founding Fathers’ own time. After Part VI describes the American public’s continued ambivalence toward executions—ambivalence shared by jurists—this Essay concludes that the U.S. Supreme Court should declare the death penalty unconstitutional.