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Video:Constitutional History of the Death Penalty

with Evan Mandery

Want to learn about the constitutional history of the death penalty? Here, see information about the death penalty in the United States.See Transcript

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Transcript:Constitutional History of the Death Penalty

Hi. I'm Evan Mandery. I'm a professor of criminal justice at John Jay College of Criminal Justice and I'm the author of Killing Court, a History of The Supreme Court's treatment of the Death Penalty and I'm here for about.com.

Basics About Constitutional History of the Death Penalty

Up until 1963 no one thought of the death penalty as a constitutional issue. The Death Penalty is mentioned in several places in The Constitution and people were regularly executed at the time the founding father's drafted the constitution.

Changes to the Death Penalty

That changed in 1963 when a Supreme Court Justice named Arthur Goldberg published a decent in a case called Rudolph versus Alabama, indicating that he wanted the Supreme Court to take on the issue of the constitutionality of the death penalty. And that sounded a call to action in the abolitionist community, and, in particular, a group of lawyers at The NAACP Legal defense Fund, sought to prove the unconstitutionality of the death penalty and they implemented a strategy where they tried to put a moratorium a hat to executions in The United States by tying up the courts with legal issues.

Facts About the Constitutional History of the Death Penalty

Remarkably, they succeeded for five years. And they forced the Supreme Court to take up the constitutionality of capital punishment. Which it first did in a case called Mcgautha versus California in 1971, upholding the death penalty under the 14th amendment. But then, in 1972, in a historic case of Furman versus Georgia the Supreme Court, by a vote of five to four ruled the death penalty unconstitutional. It's one of the most improbable victories for liberals in the history of the Supreme Court. It was in the front page of the New York Times, and it was, in many ways, as improbable as man's landing on the moon.

Death Penalty Information

The decision is one of the most split and controversial in Supreme Court history. It produced 9 separate opinions and it ran almost 300 pages, and that lack of cohesiveness on the part of the justices lead to the undoing of the decision and over the next several years more than 30 states re-implemented the death penalty to comply with what Furman said. Which was that the arbitrariness of the death penalty was a problem. And the states responded either by implementing guidelines or by, in a dozen cases, by making the death penalty mandatory for all murders.

In 1976 The Supreme court confronted these new statutes in five cases. The lead case known as Gregg versus Georgia. And the Supreme Court upheld the use of guided discretion statutes in that case. On the same day in a case called Woodson versus North Carolina, The Supreme Court over ruled the use of mandatory death penalties, saying that that was barbaric. And those two decisions of Gregg and Woodson have laid out the course of the death penalty in the United States for the succeeding 40 years.

The Supreme Court requires that states use guided discretion to single out defendants who are most deserving of the death penalty and at the same time give defendant's individualized consideration of their individual cases.

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