The U.S is the only developed country that has refused to abolish the death penalty. Rather, it has tried to reform and justify state death penalty practices using federal constitutional law. The top-down legal regulation of the death penalty through the constitution has created unexpected consequences. During the 1960s and 70s, the widespread calls for the eradication of the death penalty across the world led to the provisions of the death penalty being challenged in the federal courts despite having fallen under the purview of the states. In the first notable case, the Supreme Court invalidated capital punishment in Furman v. Georgia (1972) by ruling that it was biased and unreliable. Four years later, it restored it in Gregg v. Georgia (1976). From then, the Supreme Court has created an intricate regulatory framework because it has neither retained it in unregulated form nor eliminated it completely (Steiker & Steiker, 2016). The constitutional regulation has stopped executions in many states and failed to address the challenges that attracted the court to intervene initially. Therefore, constitutional regulation has caused pitfalls rather than being a promise.
Overview of the Literature
The constitutional regulation of the death penalty has created a robust debate with proponents and opponents. For more than four decades, the Supreme Court has ruled that the death penalty is not regularly cruel and uncommon in infringement of the Eighth Amendment to the constitution (Steiker & Steiker, 2016). However, the court has not addressed whether capital punishment in itself, denies the essential right to life in contravention of substantive due process. Even the argument that the death penalty infringes on the right to life does not address the issue adequately because the death penalty can be customized to attain deterrence and retribution. Regulation of the death penalty is associated with several benefits. One of the promises of the constitutional regulation of capital punishment is the introduction of extensive legal regulation, which contrasts with the unregulated state practices of earlier generations. According to Steiker & Steiker (2016), constitutional regulation has set boundaries on capital punishment. For example, the Supreme Court has disallowed the death penalty for persons with intellectual disabilities, juveniles, and rape alone. Regulation has also allowed the death penalty for a felony without intending murder. By narrowing the circumstances under which the death penalty may be imposed, constitutional regulation has removed the arbitrary state practices.
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The other promise of constitutional regulation is the humanization of executions. The Supreme Court has ruled that lethal injection is allowed and does not constitute rare and cruel punishment. Through constitutional regulation, execution that involve a three-drug process have been deemed unconstitutional due to the increased likelihood of error and the potential for pain. Therefore, regulation has ensured that states avoid unnecessary cruelty during executions.
Proponents of constitutional regulation also posit that death penalty litigation is currently carried out by a specialized defense bar comprising state post-conviction lawyers, capital trial lawyers, and federal habeas lawyers. The specialized defense bar has replaced “generalists,” which removes the arbitrary nature of state trials (Sigler, 2018).
On the other hand, the constitutional regulation of the death penalty is associated with certain pitfalls. One of the pitfalls brought by the extensive constitutional regulation is the increase in the duration between sentencing and executions. This has created a large pool of death row inmates incarcerated in increasingly restraining circumstances, with many facing no possibility of execution. The other disadvantage of constitutional regulation is the shift of the death penalty’s main focus from the issues of innocence or guilt for thefundamental crime to the punishment question of life or death. The shift is not only one of prominence or degree, but it also introduces an entire rethink of the responsibilities of trial counsel and the role of the capital punishment trial.
The other pitfall of constitutional regulation given by opponents is the move by states to make rulings of life without the possibility of parole the only alternative to death for capital offenses. This move contrasts with earlier generations in which capital crimes were punishable by life imprisonment with the possibility of parole or terms of life.
Analysis
The introduction of reforms to capital punishment by introducing constitutional regulation was meant to discipline it by humanizing, regularizing, and making it law-like. Steiker & Steiker (2016) point out that the reforms were intended to enhance the death penalty’s acceptability by acclimatizing it to modern sensibilities. Though some of these gains have been attained through regulation, the reforms have undermined capital punishment through the dysfunction brought by extensive legal regulation. Therefore, reforming the death penalty through constitutional regulation has brought more pitfalls than promise.
Regulation of the death penalty has increased the duration between sentencing and execution, which has led to a novel phenomenon known as “death row.” The phenomenon describes the long-term imprisonment of convicts pending execution. The regulation of capital punishment has introduced extensive procedural rules and doctrines governing its implementation, which have increased the time between sentencing and executions (Smith, 2008). Initially, sentencing and executions were separated by weeks or months. However, this changed due to regulation as sentencing and execution are separated by years or even decades. In some states, the duration between sentencing and execution is infinite due to the imposition of lawful restrictions. Coupled with social and political factors, these regulations have led to a suspension of executions, with the exemption of volunteers who relinquish their appeals. Currently, there are thousands of convicts languishing in death row caused by the constitutional regulation of capital punishment.
The “death row” phenomenon undermines capital punishment in many ways. First, lengthening the duration between sentencing and execution undercuts two of the most vital arguments in support of capital punishment – deterrence and retribution. Deterrence is undermined when execution is carried out many years from sentencing (Smith, 2008). Furthermore, the retributive significance of executions is reduced when a convict has lived many years on death row.
Considering that the death penalty decision currently comprises an extensive inquiry into a person’s character and background, the prolonged duration between sentencing and execution excludes important information such as lives lived under death row. Therefore, the death row concept has exposed deep psychological problems on whether an individual executed decades after the crime and sentence is actually the same one sentenced earlier (Steiker&Steiker, 2016). Furthermore, the phenomenon has led to a new moral challenge for capital punishment. Capital punishment currently incorporates two unique punishments. The first is the prolonged imprisonment under cruel conditions such as solitary confinement and then the execution. Though the reform may persuade the court and the public that the death penalty is not disproportionately cruel, the current regime of prolonged incarceration followed by execution may create more doubts.
The increased costs associated with the death penalty is another pitfall of constitutional regulation. The constitutional regulation of the death penalty has inadvertently led to lengthy trialsand appeals, and functionally unspecified verdicts that drive up costs (Sigler, 2018). Initially, costs traditionally supported the death penalty because there was no need for the government to maintain convicts fir life. However, the new regulatory regime imposed by the Supreme Court has made costs an anti-death penalty argument because it imposes costs that are hard to control. The high costs associated with the death penalty have contributed to calls to repeal capital punishment, and is the main reason prosecutors are willing forego it, which has contributed to a drastic decrease in death sentencing in the past decade.
The other downside of introducing constitutional regulation of capital punishment is the increased emphasis on mitigation. The emergence of mitigation as the main focus on capital litigators has been a factor in driving up costs associated with the death penalty. Initially, the emphasis of capital trials was the issue of guilt or innocence. State trials did not admit evidence unconnected to guilt and innocence, and lawyers did not conduct any investigation that has no relation to the crime. They were generalists who approached capital trials just like other felony cases. However, the annulment of obligatory capital states by the Supreme Court constitutionalized the prerequisite of customized sentencing. On one hand, the court was recognizing the nationwide standard of preference in capital cases due to the almost uniform refusal of obligatory death sentencing requirements in the 1960s (Steiker & Steiker, 2016).
However, the court’s explanation and implementation of the right to individualized sentencing widened the type of evidence related to the sentencing decision. Furthermore, the regulatory standards introduced by the court broadened the scope defense effort. An extensive assessment of the defendant’s circumstances and life has become the norm in capital crime trials. Delving into a defendant’s educational and medical history, military service, special needs, social and family history, cultural background, and religious influences has become the standard in capita offence representation. Under Supreme Court standards, robust efforts to seek a plea on the grounds of mitigation investigation has become the norm and mitigation evidence a critical defense component. Therefore, states have to dedicate significant resources to capital trial to prevent injustices or the reversal of cases at later phases.
The reform of capital trial defense as reflected in the standards published by the American Bar Association has destabilized the use of capital punishment in several ways. The introduction of more layers of procedural standards due to enhanced legal regulation and vigorous personalization and other trail benchmarks have drastically increased the cost of capital trials (Sigler, 2018). Furthermore, the vigorous customization uneasily suits the customary and religious support of the death penalty due to the presumption that an “eye for an eye” is an unsuitable command (Smith, 2008). Additionally, the sophistication of the trial defense has led to a cooperative effort to evade the death penalty, making it less common even for aggravated offenses that one would ordinarily expect a death sentence. High profile cases involving individuals such as Terry Nichols have produced life sentences due to extensive litigation. Therefore, offenses, regardless of their severity are no longer punished by the death penalty.
Conclusion
Though the constitutional regulation of the death penalty has led to gains such as the humanization and eradication of the death penalty for certain groups, it has inadvertently caused more pitfalls. The symbols of modern capital trials include high costs, the emergence of the “death row” phenomenon, professionalization of the trial bar, and enhanced analysis of capital rulings have reduced the efficacy of the death penalty has a deterrent for capital crimes. These are the outcomes of institutional pressures that can be traced to constitutional regulation. Overall, regulation of the death penalty has made it increasingly rare even in crimes that deserve capital punishment. Therefore, the legal regulation of the death penalty has led to more pitfalls that reduce its use and has the potential threat of causing its abolition.
References
Sigler, M. (2018). Principle and Pragmatism in the Death Penalty Debate. Criminal Justice Ethics, 37 (1).
Smith, S. (2008). The Supreme Court and the Politics of Death. Virginia Law Review, 94 (2).
Steiker, C. & Steiker, J. (2016). Courting Death: The Supreme Court and Capital Punishment . Harvard University Press.
