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9 Chapter 1 Politics and Capital Punishment The Role of Judicial, Legislative, and Executive Decisions in the Practice of Death Stacy L. Mallicoat Introduction S ince the first execution in 1630, America’s use of the death penalty has evolved significantly . From its historical roots to the modernized practices of contemporary society, these changes are seen in the legislative decisions on death eligibility and criminal procedure, to the executive functions of clemency, to the judicial interpretations of constitutional validity. This essay examines the role of the legislative, judicial, and executive functions in the practice of capital punishment. Judicial Issues While constitutional challenges in death penalty cases may reflect Fifth and Sixth Amendment procedural concerns such as racial bias in jury selection or Fourteenth Amendment habeas corpus challenges. Such challenges have questioned the application of the death penalty to certain offender classifications, the methods by which executions are carried out, as well as the administration of the system as a whole. Successful challengesresultedfromEighthAmendmentchallenges to the practice of death as a violation of the protection against cruel and unusual punishment. Fixing a Broken System Prior to 1968, the Supreme Court cases on the death penalty challenged the constitutionality of the practice. Instead, these cases focused on specific issues related to the process of the death penalty as violations of due process under the Sixth and Fourteenth Amendments. These attempts failed to make significant changes to a system where disproportionate and arbitrary sentencing practices were not uncommon. While the denial of certiorari in McGautha v. California (1971) summarily approved a process whereby the guilt and sentencing phases of the death penalty process were determined within a single trial, and permittedunregulatedjurydiscretion,thesedecisions were made on the basis of the Fourteenth Amendment rather than an Eighth Amendment challenge. One year later, the Court heard arguments in the case of Furman v. Georgia (1972) 10 Stacy L. Mallicoat to address the question of whether the administration of the death penalty constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments. In the 5–4 decision, the majority opinion of the Court held that the current statutes under which the death penalty was administered amounted to cruel and unusual punishment on the grounds that the current practice illustrated patterns of arbitrary and discriminatory sentencing decisions. While Justices Brennan and Marshall gave concurring opinions declaring the death penalty as unconstitutional per-se under the Eighth Amendment, the majority opinion (to include Justices Stewart, White, and Douglas) maintained that it was the current administration of the death penalty and not the concept of death as the ultimate punishment which violated the protections of the Eighth and Fourteenth Amendments. The majority opinion held that the current laws allowed for arbitrary applications of death sentencing. Justice Stewart suggested that the pattern of “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”1 The majority opinion also held that the current laws were discriminatory as their implementation was biased against minority defendants. In referencing several studies indicating that the death penalty is disproportionately imposed on blacks and the poor, Justice Douglas held that “these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”2 While the majority decision left open the door that new laws could resolve these concerns, the effect of the Furman decision overturned 629 death sentences in 32 states.3 Following the Furman decision, several states developed new death penalty statutes to address theseconstitutionalviolationsandbringthedeath penalty back to life. In an attempt to resolve the issue of arbitrary administration, North Carolina and Louisiana designed laws requiring mandatory death sentences for capital crimes. These states posited that such laws would eliminate the unregulated discretion of the jury’s decisionmaking process that concerned the Furman court. The justices held that mandatory death sentences would violate “the fundamental respect for humanity” and declared these laws unconstitutional .4 However, the Court approved the statutes presented in the cases of Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262) and Proffitt v. Florida (428 U.S. 242). Known as the Gregg decision, these cases developed a new system by which offenders could be sentenced to death. The provisions in these cases created four new procedures that dramatically altered the administration of capital sentences. First, the Gregg decision created a...

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