Constitution Daily

Smart conversation from the National Constitution Center

The death penalty: An Opinion Lab

December 7, 2010 by Dr. Steve Frank


Retired Supreme Court Justice John Paul Stevens last week shined a bright light on a dark subject -- the difficult issues surrounding the constitutionality of capital punishment. In a review he wrote for The New York Review of Books, Stevens issued a sharp critique of the way the death-penalty is administered in the United States. But he stopped short of calling for its abolition.

Stevens’ 35-year career on the Court reflects just how vexed the national debate over capital punishment has been. Shortly after he joined the Court in 1975, Stevens voted to reinstate the death penalty, which the Court had struck down in 1972. By 2008 he had reversed course, writing in an opinion that he now believed the death penalty to be unconstitutional.

In 1975, Stevens voted to reinstate the death penalty. By 2008 he had reversed course.

In his book-review, and in an appearance on 60 Minutes, Stevens explained how he got from one opinion to the other.

His position is complicated. Stevens believes that with the right procedural safeguards, the death penalty can be limited to extremely serious crimes and administered fairly. Between 1976 and 2008, he maintains, a series of mistaken Supreme Court decisions made those safeguards impossible. Decisions on issues ranging from how juries in death-penalty cases are chosen and what evidence they may hear to how to address racial disparities in the capital justice system have now made the death penalty irrational and unconstitutional.

Here is an Opinion Lab on the question:

Should the death penalty be abolished as cruel and unusual punishment?

The Eighth Amendment to the Constitution bans “cruel and unusual punishments,” but what is considered cruel and unusual has been sharply debated over the years. Except for a brief period in the 1970s, the Supreme Court has not considered the death penalty to be cruel and unusual. But in recent years it has narrowed the category of people who may be executed, including offenders under the age of 18 and people are mentally retarded.

The divisive national debate over the death penalty involves questions of deterrence, retribution and whether death sentences are meted out in a fair manner by impartial juries. Recent controversies have touched on the use of DNA evidence, the purported rehabilitation of death-row inmates, and whether the methods used to carry out executions, such as lethal injections, are cruel and unusual.

As a constitutional matter, proponents of the death penalty point out that both the Fifth and Fourteenth Amendments specifically authorize the taking of life, so long as due process rights are provided to the defendant. Those favoring abolition of capital punishment maintain that national standards of decency have evolved to the point where capital punishment can no longer be tolerated by the Constitution.

Should the death penalty be abolished as cruel and unusual punishment?

YES: Capital punishment offends modern ideas of human dignity. Over half the countries of the world have abolished the death penalty; the United States should follow suit.

NO: The death penalty is a form of retribution and deterrence justified by the text of the Constitution. The laws of other nations have no bearing on American legal practices and should not inform decisions about the death penalty.

YES: Exoneration of more than 130 death-row inmates since 1973 highlights serious flaws in the criminal justice system.  As long as the death penalty is maintained, the risk of executing the innocent cannot be eliminated.

NO: The Supreme Court has articulated workable standards for the administration of the death penalty. The 38 states that provide for capital punishment have adopted clear statutes to guide judges and juries.

YES: The uneven application of the death penalty is discriminatory and unfair. Death sentences fall disproportionately on the poor and members of minority groups.

NO: The Supreme Court has rejected the use of statistical studies that claim racial bias as the sole reason to overturn a death sentence. The existence of some systemic problems is no reason to abandon capital punishment.

What's your opinion?


Sign up for our email newsletter