How the Supreme Court 'evolved' on capital punishment

Editor’s note: Marvin Olasky’s cover story in the current issue of WORLD magazine focuses on what the Bible says about the death penalty and what life is like on death row. In a series of 10 columns here on wng.org (posted Oct. 7–18), Marvin addresses public policy issues involving deterrence, discrimination, and arbitrariness in capital punishment.

Wilkerson v. Utah (1878): No drawing and quartering, disemboweling, or burning at the stake, for all those are “cruel and unusual punishments” prohibited by the Constitution’s Eighth Amendment.

Furman v. Georgia (1972): The Supreme Court struck down the imposition of capital punishment in several specific instances, but had no majority rationale for doing so. Justices William Brennan and Thurgood Marshall called the death penalty “cruel and unusual,” since it wasn’t used very often. (Brennan defined “cruel and unusual” as “degrading to human dignity … obviously inflicted in wholly arbitrary fashion … clearly and totally rejected throughout society … patently unnecessary.”) Justice William O. Douglas cited racial discrimination. Justices Byron White and Potter Stewart expressed concern about inconsistent application of the law.

Gregg v. Georgia (1976): Many observers thought Furman meant the end of capital punishment in the United States—but seven months later the court created in Roe v. Wade a right of mothers to choose a death penalty for their unborn children. State legislatures that tolerated Roe did not tolerate Furman: 37 states enacted new death penalty statutes that dealt with the inconsistencies that bothered White and Stewart. In Gregg, the court upheld separating trials for capital crimes into two parts, one to decide guilt and the second for sentencing, with juries in the sentencing hearing deciding whether mitigating factors made appropriate a sentence of life in prison rather than execution.

Coker v. Georgia (1977): The court barred use of capital punishment in rape cases (and implied that it could not be the penalty for any state crime other than murder). The federal government remained free to use it as punishment for espionage or treason.

Atkins v. Virginia (2002) and Roper v. Simmons (2005): No capital punishment of the mentally retarded and of persons under 18 at the time of the crime.

Listen to Marvin Olasky discuss his cover story on the death penalty on The World and Everything in It: