Supreme Court Rulings After Furman and Gregg Have Created Confusion

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Supreme Court Rulings After Furman and Gregg Have Created Confusion

Stuart Banner

After the Gregg v. Georgia (1976) ruling reinstated the death penalty, the application of the penalty was called into question in a variety of instances. The result was a barrage of Eighth Amendment cases before the Supreme Court. In the following excerpt, Stuart Banner summarizes the post-Gregg Supreme Court rulings on the death penalty. Such rulings addressed which crimes warranted the death penalty and whether juveniles or the mentally challenged should be executed. He concludes that the Court's rulings have created a complex and inconsistent body of law regarding capital punishment. Stuart Banner is a professor of law at Washington University in St. Louis.

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Capital punishment after Gregg [v. Georgia, 1976] was not just a political issue. The Supreme Court's involvement turned it into a constitutional issue as well, one that returned to the Court year after year. Within a very short time the Court constructed an intricate Eighth Amendment jurisprudence on the foundation of Furman [v. Georgia, 1972] and Gregg, a body of cases distinguishing the practices that would or would not amount to cruel and unusual punishment. The result was a significant shift in decisionmaking authority among the three branches of government. The various issues involving the death penalty that had once been decided by legislatures, or by governors during the clemency process, now became constitutional questions to be decided by courts.

Only Murder Is Punishable by Death

For instance, was capital punishment disproportionately severe for crimes less grave than murder? The question had been the subject of fierce political debate within legislatures since the late eighteenth century. Governors had always considered the gravity of the crime in deciding whether to grant clemency. But after Furman and Gregg the issue was recast as a constitutional question: Would it violate the Eighth Amendment to execute a criminal for committing a crime short of murder? In Coker v. Georgia, only a year after Gregg, the Court held that the death penalty was a cruel and unusual punishment for rape. Every death sentence imposed for the rest of the century would be for murder. But what about a defendant technically guilty of murder who was not the actual killer? The criminal law had always held accomplices guilty of the crime they helped another commit, but a defendant's minimal participation had always been a factor tending toward clemency. Now it became a constitutional question: Was it cruel and unusual to execute the accomplice? In 1982 the Court held that it was, by a 5-4 vote; in 1987, after Justice [Byron] White switched sides, the Court held that it was not, also by a 5-4 vote [Enmund v. Florida, 1982; Tison v. Arizona, 1987].

Who Is Subject to the Death Penalty?

Just about every death penalty question that had once been decided by legislatures in enacting statutes or by governors in ruling on clemency petitions was addressed by the Supreme Court in the years after Gregg. What if the defendant was very young? The Court held that the Eighth Amendment permitted the execution of a defendant who was sixteen years old at the time he committed the crime. What if the defendant had become insane by the time of the execution? The Court held that the Eighth Amendment prohibited executing the insane. What if the defendant was mentally retarded? The Court held that the Eighth Amendment did not prohibit executing the retarded. These had been classic legislative or clemency issues for hundreds of years, but now they were novel constitutional questions. The ultimate issue on clemency was of course whether the defendant was in fact innocent, and it was only a matter of time before that too became a constitutional question. Was it cruel and unusual punishment to execute an innocent person? Herrera v. Collins, the 1993 case that posed the question, produced five separate opinions and no clear answer. Furman and Gregg had the effect of moving some very old questions into a new forum.

Clarifying Eligibility for the Death Penalty

The constitutionalization of capital punishment produced a host of new questions as well. Some of the states' aggravating circumstances turned out to be so vague as to raise doubts that they provided any guidance to the jury. Georgia, for instance, authorized the death penalty for every murder the jury found "outrageously or wantonly vile, horrible or inhuman," a category that might not have excluded any murders at all. The same could have been said about one of Oklahoma's aggravating circumstances, that the murder be "especially heinous, atrocious or cruel." The Court found both aggravating circumstances unconstitutional. A few years later, however, the Court approved an aggravating circumstance adopted by Idaho, that in committing the murder the defendant "exhibited utter disregard for human life." That too might easily be said about all murders, but because the Idaho courts interpreted "utter disregard" to refer only to what they called "the cold-blooded, pitiless slayer," the Court found that the aggravating circumstance adequately distinguished one category of murders from another [Godfrey v. Georgia, 1980; Maynard v. Cartwright, 1988; Arave v. Creech, 1993]. It was in the interest of death penalty supporters to draft aggravating circumstances that pulled in as many murders as possible, so the Court found itself repeatedly examining whether particular circumstances sufficiently confined the jury's discretion to impose the death sentence.

Supporters of the death penalty had the opposite interest with respect to mitigating circumstances. There the incentive was to draft statutes narrowly, to exclude as many murders as possible. This practice also produced repeated constitutional challenges. In the end the Court held that the states could not restrict the jury's consideration of mitigating evidence—that the jury must be allowed to consider any kind of evidence that might point against a death sentence, not just the evidence relevant to one of the statutory mitigating circumstances [Lockett v. Ohio, 1978; Eddings v. Oklahoma, 1982]. That conclusion went halfway toward undermining the constitutional regime created by Furman and Gregg, under which state statutes were supposed to channel the jury's consideration of evidence at sentencing to prevent the random imposition of death sentences. If the constitution instead required juries to consider any mitigating evidence, half the decision was unguided.

Most of the other half of the decision, the identification of aggravating circumstances, was cut loose from statutory guidance not long after, when the Court allowed sentencing juries to consider nonstatutory aggravating evidence as well. By this point all that was left of the constitutional framework was the requirement that the jury find a single statutory aggravating circumstance before proceeding to what had become a virtually unguided exercise of discretion. And even that threshold requirement was generally acknowledged as something of a sham, because as time went on sentencing statutes were typically expanded to include aggravating circumstances phrased so broadly as to exclude very few murders. Missouri's statute, for example, included as aggravating circumstances that the murder evidenced "depravity of mind," that the murder was committed in the course of another felony or to conceal another felony, and that the murderer hoped he or a confederate would obtain some of the victim's property [Zant v. Stephens, 1983]. It was a rare murder for which an applicable aggravating circumstance could not be found, which meant that at sentencing just about any kind of evidence could be introduced for either side and considered by jurors any way they wanted.

For a time the Court did exclude one kind of evidence from sentencing, evidence of the effect of the murder on the victim's family and friends, but that was by a 5-4 vote. In 1991, after [Justice William J.] Brennan retired and was replaced by David Souter, the Court overruled its prior cases and let in such "victim impact evidence" as well [Payne v. Tennessee, 1991]. After 1991 well-conducted capital sentencing hearings normally included emotional presentations by both sides, matching the defendant's weeping relatives against the victim's weeping relatives, in an effort to gain the sympathy of the jury. Any pretense that this was a rational process of distinguishing degrees of culpability was long gone.

The Eighth Amendment "Fog of Confusion"

In the twenty years after Gregg capital punishment occupied a significant percentage of the Court's time, resulting in scores of cases that made up a complex and ever-shifting body of law. Justice Antonin Scalia, among other critics, complained of "the fog of confusion that is our annually improvised Eighth Amendment, 'death is different' jurisprudence." Much of the fog was produced by the Court's constant effort to reconcile two irreconcilable goals—consistency across cases (a goal best reached by formal rules restricting jury discretion) and attention to the unique characteristics of each case (a goal best reached by allowing the jury unrestricted discretion). In 1994, a few months before he retired, Harry Blackmun finally gave up and decided the death penalty ought to be unconstitutional under all circumstances. "Over the past two decades, efforts to balance these competing constitutional commands have been to no avail," he despaired. "From this day forward, I no longer shall tinker with the machinery of death." Lewis Powell came to the same conclusion a few years after his retirement, when his opinion no longer made any difference. But the rest of the Court tinkered on.

Many areas of the law are complex, but the tragedy of the Court's Eighth Amendment jurisprudence was that all the complexity served scarcely any purpose. Trials were long and expensive, lawyers had to master bodies of arcane doctrine, every case raised several issues that could be plausibly litigated on appeal, and yet, for all that, the process of distinguishing the murderers who would be executed from those who would be sent to prison seemed no less haphazard than it had been before the Supreme Court got involved. Lawyers and trial judges went through the motions, but in the end juries imposed death virtually for whatever reasons they chose. There was little dispute that the purpose behind Furman and Gregg, to use the Constitution to rationalize capital sentencing, had not been achieved. Critics on the right complained that the Court's Eighth Amendment jurisprudence forced state governments to spend time and money for no good purpose; critics on the left complained that the Court had watered Furman down to irrelevance. Both sides were right.

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