Although part of American jurisprudence since the beginning of the country, the death penalty, or capital punishment, has been and continues to be a source of hotly contested debate. Cases regarding the imposition of capital punishment have done little to establish consistent rules, and Court opinions vary based on many factors, including the make-up of the Supreme Court bench and the perception of society’s preferences. The Court has ruled on myriad issues surrounding the death penalty including the procedures used in capital cases, appeals that must be maintained in a death penalty sentence, the methods used to carry it out, the constitutionality of state statutes carrying mandatory death sentences, what crimes may be punished by death and even what type of defendant may be ineligible.

Death penalty cases are usually argued under the 8th Amendment prohibition against “cruel and unusual” punishment, although some decisions also bring in the aspect of equal protection of the 14th Amendment. In the 1970s there was a strong push to get a pronouncement from the Court on whether the penalty was cruel and unusual. The Supreme Court heard numerous cases during that decade and beyond, resulting in revisions or even reversals of prior decisions. In Furman v. Georgia, 408 US 238 (1972) the Court held that the death penalty that existed at the time was cruel and unusual punishment. The judges filed multiple concurring opinions and relied on a number of different arguments to render the pronouncement, some contending that the practice was itself cruel and unusual, but most others finding that capital punishment itself was not violative of the Eighth Amendment, but in application it was. That segment of justices identified many procedures involved in the administration of the death penalty that they contended made the practice cruel and unusual.

Because of the Furman decision, many states amended statutes regarding capital punishment to remedy the deficits pointed out by the various opinions. In subsequent cases, the Court took this effort by the states to remedy the problems as a sign of society’s acceptance of the death penalty as an acceptable sentence. Thirty-five states passed legislation to come into compliance with the specifics announced in Furman. After these procedural corrections, the Court ruled that the death penalty was not itself cruel and unusual, although aspects of its administration continue to be tested. Gregg v. Georgia, 428 US 153(1976)

Some features of the death penalty that the Court has ruled on include:

• Once a jury finds a defendant guilty of a capital offense, the decision of whether to impose a death sentence must be done by the same jury during a separate phase of the trial. Furman v, Georgia, supra. (known as a bifurcated trial)
• A jury must be allowed to consider aggravating and mitigating factors in connection with the punishment phase of the capital trial Gregg v. Georgia, supra
• The sentence of death can only be applied to a murder case Coker v. Georgia, 433 US584 (1977) ; Kennedy v. Louisiana, 554 U.S. 407 (2008)
• Death sentence cannot be applied to a minor Roper v. Simmons, 543 U.S. 551 (2005)
• Death sentence cannot be applied to a mentally challenged defendant Atkins v. Virginia, 536 U.S. 304 (2002). However, controversy continues as to the parameters of what constitutes a mental challenge
• Various methods of carrying out the death penalty have been challenged and reviewed by the Court Glossip v. Gross, 536 U.S.(2015). Current controversy surrounds the process of execution by lethal injection since many pharmaceutical companies have ceased production of the drugs approved for use in capital punishment. Arthur v. Dunn, 137 S. Ct. 725 (2017)

New York Death Penalty

New York Penal Law (PL§60.06) and Criminal Procedure Law (CPL §400.27) still reference the death penalty as punishment for first degree murder convictions in New York, even though the NY Court of Appeals has ruled it to be unconstitutional. In People v. Lavalle, 3 N.Y.3d 88 (2004), the Court held that the “deadlock” provision in the statute, which allows a judge to sentence a convicted defendant to 20-25 years to life in the event the jury cannot come to a unanimous decision on the death penalty, was unconstitutional since a juror might feel pressured to vote for death to prevent the sentencing going back to the judge, who could allow the possibility of parole. In subsequent cases the Court made it clear that the remedy belongs with legislative action, which has not occurred since the LaValle decision. The result is that the death penalty statute, although officially “on the books” is inoperable. It bears mention though, that since there is still a federal death penalty, a defendant who is convicted of a federal capital crime in New York could still potentially face execution.