THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART II

In Part I of this posting, I discussed the U.S. Supreme Court's ruling in Furman v. Georgia (1972), which declared invalid all of the state laws regarding the administration of the death penalty. The Court reasoned that the death penalty, as it was being carried out at that time, was a violation of the Eighth Amendment, which bans cruel and unusual punishment. The court noted the disproportionate number of poor and minority defendants that received the death penalty. Because minority defendants would receive a death sentence far more frequently than white defendants who were found to be guilty of the same crime, the Court found the death penalty to be an "unusual punishment" within the meaning of the Eighth Amendment.

At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.

THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.

Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.

Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.

Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.

In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.

The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.

In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.