DECLARING THE DEATH PENALTY UNCONSTITUTIONAL (FROM CRIMINAL LAW - ESSAYS ON CRIMINAL LAW SELECTED FROM THE PAGES OF THE HARVARD LAW REVIEW, 1972 - SEE NCJ08880)

• NCJ Number: 10687
• Author(s): A J GOLDBERG; A M DERSHOWITZ
• Date Published: 1970
• Length: 33 pages
• Corporate Author: Harvard Law Review Assoc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

SUPREME COURT TREATMENT OF CRUEL AND UNUSUAL PUNISHMENT CASES IS ANALYZED, AND IT IS SUGGESTED THAT THE COURT DECLARE CAPITAL PUNISHMENT UNCONSTITUTIONAL.

Abstract

THIS 1970 ARTICLE, WHICH WAS WRITTEN BY THE FORMER SUPREME COURT JUSTICE AND A HARVARD LAW PROFESSOR, PREDATES THE HISTORIC SUPREME COURT DECISION IN FURMAN V. GEORGIA, IN WHICH THE DEATH PENALTY WAS DECLARED UNCONSTITUTIONAL BECAUSE OF INEQUALITIES IN SENTENCING. THIS ARGUMENT CALLS FOR THE COMPLETE AND UNQUALIFIED ABOLITION OF THE DEATH PENALTY AS A CRUEL AND UNUSUAL PUNISHMENT. PRECEDENTS ON CRUEL AND UNUSUAL PUNISHMENT ARE EXAMINED, AND IT SUGGESTED THAT CAPITAL PUNISHMENT VIOLATES SEVERAL EIGHTH AMENDMENT TESTS OF CONSTITUTIONALITY - THE EVOLVING STANDARDS OF DECENCY, EXTREME AND DEGRADING SEVERITY, IRREGULARITY IN THE IMPOSITION OF THE PUNISHMENT, AND EXCESSIVE SEVERITY. SEVERAL ARGUMENTS ADVOCATING SUPREME COURT AVOIDANCE OF THE ISSUE ON PROCEDURAL GROUNDS ARE EXPLAINED AND ALL OF THEM ARE REJECTED.