History of 1970s Changes in Capital Punishment

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Since the United States Department of Justice began keeping statistics on capital punishment in 1930, concerns were raised that the death penalty was imposed arbitrarily, more frequently in the South, and in a racially biased way. Opponents felt that the death penalty violated the eighth and fourteenth amendments. In response, a moratorium on executions occurred allowing the Supreme Court time for judicial review.

In January 1972, the Supreme Court of the United States heard oral argument in the case of Furman v. Georgia. In a 5-4 split decision with nine separate opinions written by each justice, the Court ruled that the death penalty was unconstitutional. The various opinions were instructive to the legislatures on what the Court felt violated the eighth and fourteenth amendments (Furman v. Georgia 408 U.S. 238 (1972). 

Following this ruling, states and the United States Congress revised their death penalty statutes providing more clear guidelines for what constituted a capital crime where capital punishment was warranted. In 1976, the Supreme Court in three related cases including Gregg v. Georgia lifted the moratorium providing for “guided discretion” in capital cases. This meant that the capital cases were tried in two phases. First, the trial of fact. Second, the penalty phase considering aggravating circumstances that may warrant the death penalty. In some states the jury decides in both phases, in others, a judge may decide the penalty. Further, the court invalidated all laws with mandatory death penalties (Gregg v. Georgia 428 U.S. 153 (1976)). 

Currently, 36 states and the federal government impose capital punishment. Each state and the federal government have criteria that must be met to consider capital punishment. An example includes the state of Illinois which can impose the death penalty upon conviction of first-degree murder with a finding of at least one of 21 aggravating circumstances. The federal government has approximately 41 different crimes carrying the penalty of death. 

In June of 2001, The United States Department of Justice released its study on death penalty cases outlining specifically the role of the Attorney General in evaluating federal capital cases and what criteria must be met to prosecute capital cases (DOJ, 2001). 

Although the death penalty remains controversial and expensive to carry out,  the effect of the Georgia cases narrowly focused what kinds of crimes are capital crimes, instituted the bifurcated capital case requirement, and allows for more discretion for judges and jury’s in imposing the death penalty.

References

Furman v. Georgia | The Oyez Project at IIT Chicago-Kent College of Law. (n.d.). The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the United States. Retrieved April 28, 2013, from http://www.oyez.org/cases/1970-1979/1971/1971_69_5003/#mla

Gregg v. Georgia | The Oyez Project at IIT Chicago-Kent College of Law. (n.d.). The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the United States. Retrieved April 28, 2013, from http://www.oyez.org/cases/1970-1979/1975/1975_74_6257

Snell, T. (2011, December 1). Bureau of Justice Statistics (BJS) - Capital Punishment. Bureau of Justice Statistics (BJS). Retrieved April 27, 2013, from bjs.gov/content/pub/pdf/cp10st.pdf

The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review. (2001, June 6). Welcome to the United States Department of Justice. Retrieved April 28, 2013, from http://www.justice.gov/dag/pubdoc/deathpenaltystudy.htm