NCJ Number
75548
Journal
University of Pennsylvania Law Review Volume: 129 Issue: 1 Dated: (November 1980) Pages: complete issue
Date Published
1980
Length
124 pages
Annotation
This article addresses the issue of appropriate procedures for choosing who will be executed from among those who have received the death penalty in view of Supreme Court decisions in capital punishment cases.
Abstract
The Constitution does not now prohibit the death penalty. Legislatures may define crimes, conviction of which may lead to execution, so long as death is not mandatory. Persons convicted of these crimes have a right to a hearing at which a sentencer decides whether the sentence will be death. A constitutional death penalty law must therefore contain procedures for choosing who will be executed. The Supreme Court's reasoning in capital punishment cases in the 12 years between Witherspoon v. Illinois (1968) and Adams v. Texas (1980) requires that the death penalty be imposed by a jury, not by a judge; unless a jury is knowingly waived. In addition, the Court's reasoning requires that persons who will not vote to impose death under any circumstances may not be challenged from the sentencing jury for cause, nor may their penalty views be elicited on voir dire. Since 1968, the Court has caused confusion and change in the administration of the Nation's capital punishment laws. In its 1972 decision in Furman v. Georgia, the Court expressed an unfocused belief that the selection process in capital punishment cases was haphazard and unprincipled. Nevertheless, the Court has failed to remedy the situation in subsequent decisions. The rules suggested herein would accomplish this objective. They have the salutary effect of giving capital sentencing power to members of the same society whose evolving standards of decency are a test of its legality. A chart summarizing certain provisions of the capital punishment laws of 35 States and 452 footnotes are provided.