In 1972, in the case of Furman v. Georgia, the Supreme Court found that the death penalty was being imposed by the courts in a discriminatory and arbitrary manner, thus violating the Constitution. This determination was later reversed in 1976, when the Supreme Court decided that new state statutes, which included more detailed standards to guide the deliberations of juries regarding the death penalty, could constitutionally permit a sentence of death. However, controversy still exists over capital punishment for some of the very same reasons that led to the Court’s 1972 prohibition. The death penalty continues to fall predominantly on the poor, the uneducated, and those who are members of unpopular ethnic groups. This evidence of discrimination, and the sizable domestic and international sentiment against capital punishment, raise the question of whether death penalty statutes can be fairly enforced, and, if not, whether the United States should work in the direction of their further restriction and abolition.

At the heart of Furman v. Georgia was the application of the Eighth Amendment to the Constitution, prohibiting the use of "cruel or unusual punishments." To understand the conclusion of the Court, it is important to understand the origins of the Amendment itself. As with much legal language of America’s early days, the phrase "cruel and unusual punishment" was borrowed from the English Bill of Rights. These words were chosen by the English to prevent the "selective or irregular use of penalties." Many legislators, scholars and judges believe that this same motivation was at work in the minds of the Founding Fathers as they drafted the Eight Amendment. Just before the Furman decision, the President’s Commission on Law Enforcement and Administration of Justice had concluded that "there is increasing recognition of the fact that the basic theme of equal protection is implicit in ‘cruel and unusual punishments.’ A penalty should be considered ‘unusually' imposed if it is administered arbitrarily or discriminatorily." It was only natural that the Court too would find that "the high service rendered by the ‘cruel and unusual’ punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and non-arbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups."

In 1972, the lawyers defending Furman submitted substantial evidence to the Court demonstrating discriminatory patterns in death penalty sentencing. Even the President’s Commission on Law Enforcement and Administration of Justice concluded that "...the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups." The evidence for discrimination was nearly irrefutable, but the Court was influenced most profoundly by the fact that the death penalty statutes did not provide any guidance to the juries in their determination of whether a prison term or the death sentence was the appropriate penalty: "People live or die, dependent on the whim of one man or of twelve." The Court ultimately decided that "it would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

In 1976, after the legality of several new death penalty statutes was questioned, the Supreme Court again supported Furman in holding that it is unconstitutional to grant juries "with untrammeled discretion to impose or withhold the death penalty." However, the Court determined that the new statues were constitutionally acceptable because they contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death."

Nevertheless, according a study in 1996 by the International Commission of Jurists, unfair and discriminatory practices in the imposition of the death penalty have continued over the last twenty years. According to the findings of the Capital Jury Project, despite standards to guide their determinations, juries continue to be ignorant of the requirements necessary to impose death, and, when they are aware, many juries simply fail to heed the judge’s instructions. These new statues, because the standards provided for juries remain ineffectual, have failed to change the discriminatory nature of the death penalty since 1976.

In order to understand the Furman decision and the Court’s reversal in 1976, it is necessary to understand the discriminatory patterns of death penalty sentencing over the last 25 years. Since that turn of the century, and even after the Gregg decision of 1976, approximately 50% of inmates on death row at any time have been African-Americans. One common criticism of the claim that such distribution is unjust rests upon the assertion that it is only natural that 50% of those on death row are African-American since African-Americans are arrested for 50% of all homicides. However, upon further inspection of the demographic trends, the true scope of the injustice becomes clearer. First, 90% of those people against whom the death penalty has been sought by United States government prosecutors were either African or Hispanic, despite that fact that half of all homicides are committed by European-Americans. In some cases involving equally guilty codefendants of different racial backgrounds, black defendants were given the death penalty while the white defendants received prison terms. Most importantly, whether one ultimately receives the sentence of death does not necessarily rest most heavily upon one’s own ethnic background but rather on the heritage of one’s victim. Nearly 90% of persons executed since 1976 were convicted of killing a person of European descent even though African Americans constitute over half of all homicide victims in the United States. A person is nearly 4.3 times more likely to receive the death sentence if their victim is white than if their victim is black. Even the U.S. General Accounting Office, in its report to Congress in 1990, found "racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision." Furthermore, the General Accounting Office determined that the race of the defendant’s victim was found to influence deliberations "at all stages of the criminal justice system process."

Patterns of wealth discrimination have also been found in death penalty sentencing. The fact that nearly 90% of those on death row could not afford their own lawyer blatantly demonstrates that the American justice system executes those least able to defend themselves. Related to questions of an adequate defense is the disturbing increase in mentally challenged death row inmates since 1976. Currently, nearly 10% of death row inmates suffer from a mental handicap. Since 1976, thirty-one mentally challenged people have been executed. Moreover, the rate at which the mentally challenged are put to death has increased dramatically in the last five years. Particularly since the Supreme Court admitted in 1989 that "mental retardation is a factor that may well lessen a defendant’s culpability for a capital offense," these findings have great bearing on the legality of the death penalty’s imposition. Indeed, the American Bar Association in 1989 publicly criticized the government for its execution of the mentally challenged on the grounds that such actions "violate contemporary standards of decency."

Most disturbing of all, approximately 4.5 innocent people are convicted each year of a capital crime. Because of the inadequate legal representation that most death row inmates receive, this law severely curtails the possibility that the mistakes of incompetent lawyers can be corrected. The following cases exemplify problems associated with drastic limits on the admission of evidence. In 1980, two janitors, one black and the other white, found a dead schoolgirl. A policeman involved in the investigation said to Clarence Brandley, the black janitor: "One of you is going to hang for this. Since you’re the nigger, you’re elected." Years later, evidence surfaced that another man had committed the murders, and Brandley was freed in 1990. Of course, had Bradley been executed for the crime, it would have been impossible to reverse this miscarriage of justice.

In 1976, Jesse Tafero and his wife Sonia Jacobs were convicted of the murdering a state police officer. It was later discovered and corroborated by the prosecutor that Sonia Jacob had committed the murders alone and that Jesse was not even aware that she had a gun before the shooting occurred. However, Jesse was sentenced to death while she was given only a prison term. The Supreme Court, despite the dissent of three justices, ruled that it could not overturn the judgment of the jury without further evidence. Texas statues also severely limited the inclusion of new evidence so late in the trial. Jesse was ultimately executed in 1990 for first degree murder, a crime that he did not commit. Justice Stevens, in remarking about Jesse’s execution, wrote: "It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed. I find this course of events deeply troubling."

According to a US Congressional report conducted by the House on Civil and Constitutional Rights, 48 innocent people had been sentenced to death since 1972. The report found that "inadequate legal safeguards… and numerous inherent flaws in the criminal justice system" were responsible for these mistakes. The report’s ultimate conclusion was that, "Judging by past experience, a substantial number of death row inmates are indeed innocent, and there is a high risk that some of them will be executed."

The drastic consequences of the death sentence are obvious, and the complete impossibility that the state could ever reimburse those people who are wrongly convicted, demand that any patterns of discrimination or arbitrariness be eliminated to the greatest extent possible. However, many Justices have suggested that death penalty statutes may be inherently unconstitutional because they can never adequately eliminate biases in its imposition. Justice John Marshall Harlan concluded,

Turning to the question of basic arbitrariness in sentencing, the President’s Commission raised related question of whether the extreme infrequency with which the death penalty is used does itself constitute "selective and irregular" use of a punishment and thus violates the Constitution. This Commission noted that "the extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness." In addition, the Court in 1972 found that "the outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime." Furthermore, "when the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily."

In other words, the Court was questioning whether the death penalty’s very nature tended toward arbitrariness and thus violated the Constitution. However, mandatory death sentencing, which is one possible method to decrease the selective nature of the death penalty’s imposition, was found to be unconstitutional in the 1976 case of Woodson v. North Carolina. As a result, those sentenced to death each year continue to represent less than one percent of the total homicides per year.

On a point related to mandatory death sentencing, Justice Brennan in 1976 argued the attempt to eliminate jury discretion through rules as to when the death sentence was appropriate was far too similar to mandatory death sentencing to be constitutional. To create such rules is to decide in advance what types of criminals should die for their crime. According to Brennan, these rules had the very same purpose and methodology as mandatory sentencing, and thus made all death penalty statutes inherently unconstitutional.

Given all of the associated problems, it seems paradoxical that the death penalty is still employed in the United States. The House of Delegates of the American Bar Association in 1997 called for a moratorium of executions citing the discriminatory and arbitrary nature of the death penalty’s imposition as their support. International sentiment has also developed against capital punishment. The following international treaties have abolished the death penalty within member states: The Second Optional Protocol to the International Covenant on Civil and Political Rights, Sixth Protocol to the European Convention on Human Rights, and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. The United Nations General Assembly recently adopted a resolution, calling for world leaders to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment."

The United States now stands as one of a few industrialized nations that continues to put its citizens to death. Moreover, the United States also has the dubious honor of being one of only 5 countries since 1990 that has publicly acknowledged its executions of prisoners under 18 years old at the time of their crime. The only other nations guilty of executing juvenile offenders are Iran, Pakistan, Saudi Arabia, and Yemen. Most surprisingly, the United States has executed the greatest number of juvenile offenders out of these five nations.

It has been argued that the death penalty, since not explicitly forbidden by the Constitution, should continue to exist because the majority of Americans are in favor of it. However, several statistical studies have undermined the credibility of this assertion. If Americans were given the option between life imprisonment without parole and coupled with some form of formal restitution versus the death penalty, only 41% would opt for death. Moreover, given that the majority of Americans are unaware of the drastic problems inherent in the imposition of the death penalty, an informed public would probably prefer an alternative even more.

The two main purposes of the death penalty, as believed by the writers of the Eight Amendment to the Constitution and by the Supreme Court in 1976, was to deter crime and provide an outlet for revenge so as to prevent vigilante law enforcement. Dealing first with the question of deterrence, scientific studies have consistently shown that the death penalty does not prevent crime. The United Nations conducted its own investigation, and concluded that their research "failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis." Even opinion polls of police chiefs show that they agree that the death penalty is the least effective form of crime control.

These conclusions reflect the overall trend present in the American judicial system. Since the reenactment of the death penalty in 1976, murder rates have remained constant. Those states that have not reintroduced the death penalty do not suffer from higher murder rates than similar states that did. Moreover, some evidence indicates that the death penalty may actually increase the crime rate. Since it began executing prisoners in 1990, Oklahoma has undergone an "abrupt and lasting increase in the level of stranger homicides."

Since the deterrence argument is not reliable, retribution remains the sole, principle justification for the death penalty. According to the dissenting Justices in the Furman case, "the instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law."

It is vital to understand that these Justices are advocating a type of deterrence argument. Because the punishments of the criminal justice system are unpleasant, the Justices believe that they assuage the public’s desire for retribution. According to this line of reasoning, the political order of a nation depends upon deterring not only crime, but vigilantes as well.

However, the possibility of widespread vigilante uprisings if the death penalty were abolished seems highly unlikely. As mentioned earlier, most Americans, when informed of the problems associated with the death penalty, prefer alternatives to capital punishment. Moreover, almost every other industrialized nation has discontinued the use of the death penalty without their citizens resorting to vigilantism. In lights of these considerations, those who would continue to support the death penalty for the sole purpose of retribution must have some other concern in mind than that of the Justices.

Justice Thurgood Marshall, in his dissenting opinion in 1976, posited another notion of retribution. In his definition, the death of the criminal serves to reaffirm community values. However, this notion is just another deterrent argument in disguise. In this case, future crime will be prevented because society has so blatantly demonstrated that it disapproves of murder and will not tolerate it. This argument also must confront the dilemma that the death penalty reaffirms the acceptance of violence as a proper tool to settle disputes.

Marshall also discussed another concept of retribution that seeks to respond to the enormity of the criminal’s deed. Because murder is such a heinous crime, the only way to respond to murderers is to remove them from society through death. In this case, the purging or execution of the criminal "is itself morally good." However, this is not without its problems. Justice Brennan, in his dissent from 1976, well understood the dilemma inherent in any retribution system:

In other words, those people who would put a person to death do not recognize that criminal to have the same rights as other citizens. To be sure, criminals do have fewer rights, for they can no longer freely interact with society. However, all of the prisoners of the justice system, while having lost certain rights to personal freedom, nonetheless retain some rights, as granted to them by the Constitution. The interpretation of the Eight Amendment throughout the nation’s history testifies to this complex web of rights that the state owes to its prisoners. The fact that torture, as well as the more painful methods of inflicting death, have been outlawed exemplifies the fact that the Eight Amendment evolves as beliefs change as to the right and just treatment of prisoners. As Justice Brennan asserts:

The infliction of torture is unconstitutional because it violates prisoners’ dignity and does not comport with public standards of decency. It would only be logical that the much more extreme and final assault on the bodies of criminals through state-sanctioned killing, also violates their right to be treated as a members of the society into which they were born.

Many people have questioned whether American society will soon join the majority of nations in the world and abolish the death penalty. As is evident from the earlier discussion, the death penalty’s imposition tends toward discriminatory and arbitrary patterns. Evidence suggests that as long as people remain racially biased, and a socioeconomic hierarchy exists in society, the death penalty will always be discriminatory.

As to the nature of the death penalty itself, it must be conceded that convicted criminals retain certain rights. As is evident from the prohibition of torture, the ultimate physical assault -- the deliberate killing of an unarmed person -- is tantamount to the most severe form of torture, and naturally would be prohibited by this understanding of the Eight Amendment. Moreover, according to the polls cited earlier, most Americans prefer to sentence people to life imprisonment with formal restitution rather than the death sentence. Several organizations, such as Murder Victim’s Families for Reconciliation, have even been created to further public understanding of the death penalty. Even some family members of murder victims, who perhaps best comprehend the death penalty’s appeal, nonetheless oppose it. As the daughter of Robert Kennedy remarked, "I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family - another set of parents, children, brothers and sisters thrown into grief." They realize that the death penalty serves little purpose; instead it spreads disorder and violence further throughout society.