III.D. The Death Penalty

Capital punishment has driven the evolution of homicide law in the United States for centuries. Throughout that evolution, questions of fairness and arbitrariness have recurred. Because the death penalty was originally mandatory for murder, states began differentiating between first- and second-degree murder, limiting capital punishment only to the former, more blameworthy crime. As capital punishment gradually became more discretionary, the opposite concern arose: that it would be imposed unevenly and disproportionately to certain defendants, especially minorities. At one point, the Supreme Court suspended the capital punishment system altogether in Furman v. Georgia.

Today, many capital punishment systems attempt to straddle the line: allowing discretion, but not unguided discretion. In some jurisdictions the death penalty has been eliminated. In others, it has been cabined to only the most heinous murders. Ironically, the growing sophistication of capital punishment systems that developed as a response to Supreme Court nullification of death penalty laws has led to a resurgence of executions.

As you read these cases, consider why the death penalty has driven such changes in our criminal adjudication system, and what concerns courts have raised about the application of capital punishment. Have reforms reinstating the death penalty solved the problems the Supreme Court identified? How do concerns about the death penalty fit into the justifications and problems of criminal punishment more generally?