JURISPRUDENCE OF DEATH - EVOLVING STANDARDS FOR THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE

• NCJ Number: 47905
• Journal: University of Pennsylvania Law Review Volume: 126 Issue: 5 Dated: (MAY 1978) Pages: 989-1064
• Author(s): M J RADIN
• Date Published: 1978
• Length: 76 pages
• Corporate Author: University of Pennsylvania
• Sale Source: Institute for Scientific Information
• Language: English
• Country: United States of America

Annotation

ISSUES SURROUNDING JUDICIAL REVIEW OF DEATH PENALTY CASES ARE EXAMINED. IT IS CONCLUDED THAT ANALYSIS OF THE RISK OF ERROR INVOLVED IN A PARTICULAR PUNISHMENT SHOULD DETERMINE THE APPROPRIATE STANDARD.

Abstract

THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE EIGHTH AMENDMENT HAS GIVEN RISE TO FIVE BASIC CATEGORIES REGARDING LIMITATIONS ON CRIMINAL PUNISHMENT. THE FIRST LIMITS THE MEANS OF PUNISHMENT; THE MOST OBVIOUS INTERPRETATION IS THAT THIS LIMITS A LEGISLATURE'S ABILITY TO IMPOSE TORTURE AS A PUNISHMENT. THE SECOND LIMIT ESTABLISHES THE CONCEPT OF PROPORTIONALITY; THAT IS, THE SEVERITY OF THE SENTENCE CANNOT EXCEED THE SEVERITY OF THE CRIME. THE POWER TO CRIMINALIZE, THE POWER OF NONJUDICIAL DISCRETION, AND THE DENIAL OF DUE PROCESS ARE ALSO LIMITED. CAPITAL PUNISHMENT CASES GENERALLY ARE RESOLVED BY CONSIDERING THE FIRST TWO LIMITATIONS OR BY CHARGING A VIOLATION OF DUE PROCESS. THE DUE PROCESS ARGUMENT IS PRIMARILY USED WHEN THE DEATH PENALTY IS IMPOSED BY A JURY BECAUSE OF THE DANGER OF ARBITRARY OR UNFAIR DECISIONS. THE OFFICIAL STATEMENTS OF THE U.S. SUPREME COURT AND THE CHANGES IN THE OPINIONS OF VARIOUS JUSTICES OVER THE EVOLUTION OF THE CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT ARE EXAMINED. CONFLICTS ENCOUNTERED DURING THE COURSE OF THESE DECISIONS HAVE LED MANY TO CONCLUDE THAT A 'RATIONAL BASIS' IS WRONG IN CHALLENGES TO THE DEATH PENALTY. INSTEAD, THE COURT IS CHARACTERIZED AS CORRECT IN DRAWING THE CLAUSE'S SUBSTANTIVE MEANING FROM THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY. THESE MUST NOT, HOWEVER, DEPEND UPON LEGISLATIVE ENACTMENTS, REFERENDUMS, OR OPINION POLLS. INSTEAD, SHARED SOCIETAL NOTIONS ABOUT CRUELTY AND ESPECIALLY PROPORTIONALITY SHOULD BE USED. CONSIDERING THE FALLIBLE PROCEDURES SOCIETY HAS AVAILABLE TO IDENTIFY WHICH PERSONS ARE TO BE KILLED, IT IS CONCLUDED THAT THE DEATH PENALTY IS INDEED CRUEL AND UNUSUAL PUNISHMENT. REFERENCES ARE PROVIDED. (GLR)