Capital Punishment Essay: The Death Penalty and the Eighth Amendment

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The Death Penalty and the Eighth Amendment

Is the death penalty consistent with the Eighth Amendment's prohibition against the imposition of cruel and unusual punishments? This essay will address this question and present a short history of the death penalty in America.

The Supreme Court considered particular applications of the death penalty in the 1940s and 1950s. In each case it upheld the state's action without addressing the larger issue of the death penalty's constitutionality. In the 1960s, the NAACP Legal Defense Fund, led by Professor Anthony Amsterdam mounted a full-scale attack on the death penalty. Adopting a "moratorium strategy," the LDF succeeded in blocking all executions for five years, creating a "death-row logjam."

In Furman v Georgia in 1972, the Court invalidated all then-existing death penalty laws based on the inherent arbitrariness of their application. Most observers at the time concluded that there would never again be an execution in the United States. They were wrong. In 1976, in Gregg v. Georgia, the Court upheld Georgia's new capital-sentencing procedures, concluding that they had sufficiently reduced the problem of arbitrary and capricious imposition of death associated with earlier statutes.

The Court continued to face questions concerning the application of the death penalty: to non-murderers, to minors, to mentally disabled prisoners, to racial minorities. One such case is McCleskey v. Kemp, a challenge based on a study that showed murderers of white victims were far more likely to be sentenced to death than murderers of black victims.

The Eighth Amendment says: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (Constitution). How does it square with the actual facts of capital punishment:

1. The average inmate put to death in 1998 spent ten years and ten months on death row.

2. In 1998, 285 people were sentenced to death.

3. At the close of 1999, Texas has the most prisoners on death row (39), followed by California (31), and Alabama and Florida (25 each).

4. Over 3,500 prisoners are currently on death row.

5. Thirty-nine states have death penalty laws on their books.

One of the most eloquent attacks on the death penalty ever delivered in an American courtroom came in the Leopold & Loeb Case in 1924. Clarence Darrow's eloquence is often credited with saving the lives of two confessed teenaged murderers.

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