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Gary Smolyak

POSC212-001

Professor Fruchtman

25 October 2015

Is Capital Punishment “Cruel and Unusual”?

Capital Punishment, better known as the death penalty, is a hotly debated topic in today’s

legal world because many individuals feel that it violates individuals’ Eighth Amendment rights.

The Eighth Amendment states that “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted” ("The U.S. and the Death Penalty."). The

death penalty has been around for over 300 years. “The first known execution was that of

Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for

being a spy for Spain” ("The U.S. and the Death Penalty."). Ever since the conception of the

United States and the Bill of Rights, Abolitionists have always been at the forefront of

attempting to abolish the death penalty. They see it as directly violating an individual’s Eighth

Amendment rights. “In 1834, Pennsylvania became the first state to move executions away from

the public by carrying them out in correctional facilities. In 1846, Michigan was the first state to

abolish the death penalty for all crimes except treason. public by carrying them out in

correctional facilities” ("The U.S. and the Death Penalty."). As some states abolished the death

penalty, several states such as Tennessee began to make the death penalty more popular by

making more crimes punishable by death. The death penalty soon began to resurface all over the

states in the late 19th century when new means of execution were introduced, such as the

electrocution in 1888 ("The U.S. and the Death Penalty."). Many individuals however still felt

that the current methods of execution being used were completely inhumane and cruel. “In 1924,
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the use of cyanide gas was introduced in the state of Nevada as a more humane way of

execution” ("The U.S. and the Death Penalty."). During the Great Depression, the use of the

death penalty spiked dramatically mainly in part due to the writing of criminologists who saw the

death penalty as “a necessary social measure” ("The U.S. and the Death Penalty."). Throughout

the 2nd World War executions were at an all time high but into the 1950’s and 60’s popularity of

capital punishment fell, and the number of executions per year fell dramatically from over 1,000

in the 1940’s to just down to 191 from 1960-1976. The Supreme Court’s role in the

constitutionality of the death penalty finally came into play in the year 1972, when it heard the

case of Furman v. Georgia.

The defendant, William Henry Furman, was charged with capital murder in the death of a

homeowner, who’s house was robbed by Furman. While burglarizing the house, the owner

discovered Furman. As Furman attempted to flee the scene, he dropped his firearm. The gun,

upon hitting the ground, discharged and killed the homeowner. “Even though the defendant did

not intend to kill the homeowner, the fact remains that he was committing a felony, specifically

robbery, which made him still eligible for the death penalty. This decision was made by by the

Georgia Supreme Court. Along with this case, two other cases, Jackson v. Georgia and Branch v.

Texas were also heard by the Supreme Court of the United States. “These cases concern the

constitutionality of the death sentence for rape and murder convictions, respectively)” ("Furman

v. Georgia."). The fundamental question that these cases are attempting to answer is whether

carrying out the death penalty constitutes cruel and unusual punishment as prohibited by the

Eighth Amendment? The Supreme Court ruled in a 5-4 decision that Furman’s Eighth

Amendment rights have in fact been violated based on his conviction. Justices Brennan and

Marshall lead the majority in saying that the death penalty is unconstitutional in all instances.
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The main reasoning behind the court’s decision was that the number of blacks sentenced to death

by courts was significantly disproportionate to the number of whites sentenced to death by lower

courts. Since all of the defendants in this case were African American, this was truly a valid

point made by the majority. On the dissenting side were Justices Burger, Blackmun, Powell, and

Rehnquist. They all argued that “capital punishment (the death penalty) had always been a viable

punishment option implicitly allowed by the Constitution, and up to the discretion of states on an

individual level” ("Furman v. Georgia Case Brief."). The outcome of this case was a temporary

prohibition of the death penalty, which ended in 1976. The ruling of this case prompted states to

revise their death penalty and criminal procedure laws in order to make certain that capital

punishment cases were being tried based on “commonly known procedure and punitive

deterrents rather than arbitrariness” ("Furman v. Georgia Case Brief."). This case was the first

ever to question the constitutionality of the death penalty. Even though the court ruled in favor of

Furman and the other three defendants, the permanent abolishment of the death penalty was not

achieved. Over the years many cases continued to shape and evolve the way the death penalty

could be used and whether it was applicable in the case that the defendant was being tried in. A

more recent case that was heard in the 21st century again, put into question the cruelty and

validity of the death penalty.

In 2002 The case Atkins v. Virginia was heard by the Supreme Court of the United States.

The defendant, Daryl Atkins, and a friend of his, William Jones, were spending the day drinking

and smoking marijuana. At some point the duo ran out of liquor and they also realized they

didn’t have the money to purchase any more. The two decided to rob a customer at the

convenience store they were at. “They abducted an airman by the name of Eric Nesbitt, who was

stationed at Langley Air Force Base, and forced him to withdrawal $200 from an ATM”
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(Fruchtman 246). They then drove Nesbitt out to a secluded area and shot him to death. After

being arrested soon after the commission of the crime, William Jones testified against Atkins in

order to receive a reduced sentence. Under Virginia State Law, a defendant cannot face the death

penalty when they plead guilty. “Daryl Atkins however faced capital punishment (Fruchtman

246)”. During the trial of the two, they each named each other as the triggerman. Since Jones had

turned testimony against Atkins, the jury believed him, consequently sentencing Atkins to death.

In his defense, Atkins’ psychologist testified that his I.Q of 59, which is comparable to a boy

who is 9-12 years old. He claimed that Atkins “had difficulty interacting with the social

environment around him” (Fruchtman 246). On the prosecutions side, their psychologist argues

that Atkins in fact had average intelligence, and very well knew what was right and what was

wrong. The Jury heard from the prosecution how Atkins had 16 felony convictions in the past,

ranging from robbery to maiming. He was again sentenced to death. His lawyer asked the court

to reduce his sentence to life, but that request was denied because based on the decision of Penry

v. Lynaugh (1989) it is constitutional for the state to execute an individual who is intellectually

challenged. The question that the case is attempting to answer is whether the execution of

intellectually challenged individuals considered “cruel and unusual punishment” under the

Eighth Amendment? The Supreme court voted 6-3 in favor of Atkins. The opinion delivered by

Justice Stevens holds that “executions of mentally [challenged] criminals are ‘cruel and unusual

punishments’ prohibited by the Eighth Amendment. Since it last confronted the issue, the Court

reasoned that a significant number of States have concluded that death is not a suitable

punishment for a mentally [challenged] criminal” ("Atkins v. Virginia."). Exempting the

mentally challenged from the death penalty will not have any affect on the decisions that other

potential murderers when they are considering whether or not to commit a capital crime. Justice
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Stevens concludes his opinion saying that "construing and applying the Eighth Amendment in

the light of our 'evolving standards of decency,' we therefore conclude that such punishment is

excessive and that the Constitution 'places a substantive restriction on the State's power to take

the life' of a mentally retarded offender" ("Atkins v. Virginia."). Justice Scalia dissents and uses

the restatement of the facts to back up his argument. He reminds the others that Atkins

kidnapped an individual and after forcing him to withdrawal money, that Atkins and his co-

conspirator drive him to a secluded location. Here, “Atkins ordered Nesbitt out of the vehicle

and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight

times in the thorax, chest, abdomen, and legs” (Fruchtman 250). Scalia uses the violent and

premeditated nature of the crime to argue the same point that the Virginia Supreme court made.

“The decision taken in this case as no ground in the Eighth Amendment’s text or history, no

ground in contemporary attitudes towards the death penalty, relies on nothing more than the

personal preferences of the members of today’s majority and the Court’s death-is-different

jurisprudence is taken to the extreme” (Atkins v. Virginia Brief). The death penalty in this case

was viewed as unconstitutional because it violated Daryl Atkins’ Eighth Amendment rights. He

was sentenced to life in prison and remains there to this day.

Capital Punishment has had a long rich history dating back before the United States was

even a nation. As new methods of executions were introduced. The same basic question still

remained. Is the death penalty seen as being a form of “cruel and unusual punishment”? “Over

the years, the United States Supreme Court has held that judging whether punishment is

excessive is not based on standards that prevailed when the Bill of Rights was adopted, but rather

by those that currently prevail” (Epstein 268). When determining if punishment is in violation of

an individual’s Eight Amendment rights, The Supreme Court looks to standards set by present
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day legislation. Justice Scalia makes an interesting remark about the death penalty. “This newest

innovation promises to be more effective than any of the others in turning the process of capital

trial into a game” (Epstein 268). How this game is to be played will be seen in future death

penalty cases that make their way to the Supreme Court of the United States.
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Works Cited

"Atkins v. Virginia." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Oct 26, 2015.

Atkins v. Virginia Brief. Casebriefs.com. Casebriefs, n.d. Web. 26 Oct. 2015.

Epstein, Lita. The Complete Idiot's Guide to the Supreme Court. Indianapolis: Alpha, 2004.

Print.

Fruchtman, Jack, Jr. "Due Process of Law and Rights of the Accused." The Supreme Court:

Rulings on American Government and Society. 2nd ed. Baltimore: Lanahan Publishers,

2014. N. pag. Print.

"Furman v. Georgia." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Oct 26, 2015.

"Furman v. Georgia Case Brief." 4LawSchool. 4LawSchool.com, n.d. Web. 26 Oct. 2015.

"The U.S. and the Death Penalty." Findlaw. Thomson Reuters, n.d. Web. 26 Oct. 2015.