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Home > Journals > Michigan Law Review > MLR FI > Vol. 105

 

Abstract

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on race, class, and fairness in the imposition of the ultimate punishment. Four years later, Gregg v. Georgia cautiously put the executioner back in business, conditioned upon a system of guided discretion designed to mini-mize the death penalty’s arbitrary and discriminatory inclinations. On the same day it decided Gregg, the Court in Woodson v. North Carolina held that a reasoned, moral response to any crime required consideration of the unique circumstances of each offender, and struck down statutes that pro-vided for the automatic imposition of the death penalty for defendants convicted of murder. It thus made individualized consideration of the back-ground and character of the accused “a constitutionally indispensable part of the process of inflicting the penalty of death.” Further, because of the enor-mous implications of erroneously taking a human life, the Court found a strong constitutional “need for reliability in the determination that death is the appropriate punishment in a specific case.” The Court then, in Godfrey v. Georgia, cautioned that “if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.”

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