The history of law in the U.S. is long and complicated. As mindsets change and advance (or reverse), new precedents are set that have the possibility to alter the future in terms of the way laws are accepted and practiced. One argument that has been debated since its creation is the constitutionality of the death penalty.
Americans got their love of capital punishment from the British, continuing the practice when the European colonists settled in the new land. It was widely accepted — even support — up until the 1950s and ’60s; as allied nations began banning its use, the U.S. Supreme Court was forced to decide if the death penalty broke the eighth amendment.
The eighth amendment covers two things for criminal defendants: the right to a reasonable bail, and the right to not be subjected to cruel and unusual punishment.
In 1958, the Supreme Court made a ruling in Trop v Dulles that the eighth amendment contained “an evolving standard of decency that marked the progress of a maturing society.” Many protesters have since used this decision against death penalty practice, claiming that the U.S. government must be held to a “standard of decency.” However, in 1972, the Supreme Court ruled that execution does not break the eighth amendment “as long as safeguards exist for individual consideration of the offender and the crime.”
It seems that the argument will never really be over, if the most recent Supreme Court behavior is anything to go by. After rejecting a series of death penalty appeals from Florida in early November, the highest justice in the land heard three (very different) voices: those of Justices Steven Breyer, Sonia Sotomayor, and Clarence Thomas.
“The flaws in the current practice of capital punishment,” wrote Breyer, “could often cast serious doubt on the death sentences imposed in these (Florida) and other capital cases.”
His argument claims the constitutionality of the lengthy wait time death row inmates face, which can sometimes stretch for years, as well as that of capital punishment itself. Breyer’s foil, Justice Thomas, feels that the limitations set in place on pushing the penalty forward at a quicker pace are responsible for this wait.
“It is no mystery why it often takes decades to execute a convicted murderer,” Thomas wrote in response. “‘The labyrinthine restrictions on capital punishment promulgated by this court’ have caused the delays that Justice Breyer now bemoans.”
Sotomayor focused on the way criminals were being convicted of the death penalty, claiming that what truly made them unconstitutional was the “limited role jurors had in the Florida defendants’ fates.”
Regardless of their personal opinions, the majority decided not to take up this round of cases, and the conversation will inevitably continue.