Morality of the Death Penalty in Gregg -v- Georgia

Gregg v Georgia reaffirmed the United States Supreme Court’s acceptance of the use of the death penalty in the United States. Capital punishment was held to not violate the Eighth or Fourteenth amendments of the United States Constitution, provided it is set forth in a carefully drafted statute that ensures the sentencing authority has adequate information and guidance in reaching its decision.

Many consider the punishment of death a fundamental component of the American legal system. Proponents of capital punishment argue that it remains an adequate penalty inflicted upon our most violent and unrepentant criminals. In Furman v. Georgia (1974) capital punishment was found unconstitutional because it was administered arbitrarily and capriciously, without a proper standard for imposition. However, in response to that finding, Georgia reestablished ways and means to circumvent legal loopholes and address the concerns of the High Court.

In Gregg v. Georgia (1976) Justice Stewart upheld the state of Georgia’s statue by which Gregg could be legally executed. In so doing, he addressed the two main problems that those in opposition to the death penalty often cite: firstly, that it is a cruel and unusual punishment, and secondly, that condemnation to death is itself far too excessive and severe in relation to any crime. Both conditions would demonstrate direct violations the 8th amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Stewart therefore establishes two tests by which to gauge the implications of the death penalty and ascertain it’s legal validity. Made clear in precedent, the 8th amendment is not a static concept. It must therefore be juxtaposed with “evolving standards of decency that mark the progress of a maturing society.” Stewart argues that the death penalty is indeed endorsed by the public, because “at least 35 states have enacted new statues that provide for the death penalty” for crimes resulting in the death of another.

Because the death penalty serves two principal social purposes – that of retribution and that of deterrence – legal execution is “an expression of society’s moral outrage at particularly offensive conduct.” This conduit to assuage the harm inflicted upon society by the offender is “essential in an ordered society that asks citizens to rely on legal processes” instead of vigilante justice.

Secondly, capital punishment as a societal sanction against murder is justifiable, and is therefore not excessively severe. There is no unnecessary infliction of pain because the penalty adheres to a fundamental belief held by the community, that “certain crimes are themselves so grievous […] that the only adequate response may be the penalty of death.” Because no sufficient evidence exists that the death penalty does not deter crime, the court was thereby required to respect the authority of the state to regulate it’s own criminal proceedings, including execution. In his conclusion, Stewart asserts that because “wanton and freakish” calls to execution by a jury are prevented by carefully drafted legislative guidelines, frivolous death penalties are prohibited and avoided.

Nevertheless, Stewart’s claims are convincingly debunked in the dissents written by Justice Brennan and Justice Marshall. The former contests that the death penalty is unquestionably a cruel and unusual punishment because it treats “members of the human race as nonhumans, as objects to be toyed with and discarded.” Brennan acknowledges the “deeply rooted beliefs in retribution, atonement or vengeance” which bolster the argument in favor of the death penalty. However, he likewise points to the importance we place on the “personal value and dignity” of the common man which is so embedded in our form of democracy. Objectification of the criminal by ending his life at the relative whim of society is therefore intolerable.

Marshall also dissents in his opinion, arguing that the death penalty is unconstitutional not only because it is an excessive form of punishment, but also because society would reject the death penalty on moral grounds if individuals were properly informed. As it stands, Marshall contends that “if [people were] better informed they would consider [the death penalty] shocking, unjust and unacceptable.” Furthermore, he cites international law specifically when he includes a summary of a United Nations statement, in which the efficacy of the death penalty as deterrence was called into question.

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The very basis of execution being a morally justifiable form of retribution must be considered, especially given the notion that without giving offenders what they “deserve” (ie, the punishment of death) “the seeds of anarchy” are sown. This is clearly not the case, as is evidenced in every state or nation in which the death penalty has been abolished. Ultimately, the dissenters argue, the death penalty is an “excessive penalty forbidden by the 8th and 14th amendments,” which undeniably disregards the offender’s worth and dignity as a human being.

Dostoevsky believed that a society should be judged by the way it treats those accused of the worst crimes: in the opinion of the author, the status quo of American jurisprudence in regards to the death penalty leaves much to be desired.

© NaturAdvocate, written December 2010

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