The Death Penalty

Fundamentals of Procedural Law by Adam J. McKee

The death penalty, also known as capital punishment, is the most severe form of punishment meted out by the justice system in certain jurisdictions. It’s a legal action that ends a person’s life, often carried out for grave offenses like murder. But, imposing the death penalty involves a complex interplay of procedural law and constitutional provisions, which form the contours for its application.

Procedural law, a crucial part of the justice system, outlines the specific steps that courts should follow during legal proceedings. This includes how courts should handle evidence, manage witnesses, and conduct trials. Following these procedures is vital in ensuring fairness and maintaining the integrity of the justice system, including in cases involving the death penalty.

At the heart of these procedures lies the U.S. Constitution, providing essential checks and balances. Two constitutional provisions are paramount in death penalty cases. The Eighth Amendment prohibits “cruel and unusual punishments,” posing a significant constraint. It has been the basis of many arguments against the death penalty, requiring a careful and thorough examination of how capital punishment is applied.

Another constitutional provision central to these cases is the Fourteenth Amendment’s Equal Protection Clause. It guarantees that no person or group will be denied the same protection of the laws that is enjoyed by similar persons or groups. In the context of the death penalty, it ensures that capital punishment is not meted out in a discriminatory manner, whether intentionally or inadvertently.

Procedural law and constitutional provisions intertwine to form a fair, consistent, and just process. When applied to the death penalty, they protect the rights of the accused while maintaining societal order. It’s a balance that allows for punishment but within the bounds of fairness, justice, and humanity. Therefore, in death penalty cases, procedural law and constitutional contours form a complex but necessary framework that defines the parameters within which justice is served.

Examining the Death Penalty Debate

In discussions about the death penalty, there are persuasive arguments on both sides. Understanding these viewpoints can give us a balanced perspective on this complex issue.

Support for the Death Penalty

Supporters of the death penalty often appeal to the principle of retribution. They believe that heinous crimes like murder should be met with the most severe punishment, which is death. The rationale is simple: the punishment should fit the crime. They argue that this offers a form of closure to the victims’ families.

Deterrence is another argument. Supporters believe that the threat of death deters people from committing serious crimes. If potential criminals know they could lose their lives, they might think twice before committing an act.

Lastly, proponents point to the incapacitation effect of the death penalty. If the criminal is dead, they can’t commit any more crimes. This means the public can feel safe.

Opposition to the Death Penalty

On the other hand, opponents of the death penalty argue that it violates a person’s right to life. They see it as a form of state-sanctioned murder, inherently cruel and inhumane, regardless of the crime committed.

They also argue that it does not deter crime. Multiple studies have found no conclusive evidence that the death penalty is more effective in deterring crime than life imprisonment.

The risk of wrongful convictions is another significant point of opposition. The justice system, while striving for fairness, isn’t perfect. Miscarriages of justice can and do occur, leading to innocent people being executed.

Lastly, opponents highlight the death penalty’s inconsistent application. Studies have suggested that capital punishment is often influenced by factors such as the defendant’s race or the quality of their legal representation, raising serious fairness concerns.

All in all, the death penalty debate hinges on key principles of justice, humanity, and effectiveness, with strong arguments presented by both supporters and opponents.

Furman v. Georgia (1972)

The case Furman v. Georgia (1972) was a turning point in the death penalty’s legal history. Both the facts and the legal issue in this case related to whether the death penalty was cruel and unusual punishment under the Eighth Amendment.

In the Furman case, the Supreme Court ruled in a 5-4 decision that the way Georgia applied the death penalty was unconstitutional. The Justices reasoned that the lack of clear guidelines led to arbitrary sentencing, making the death penalty cruel and unusual punishment.

Gregg v. Georgia (1976)

Afterward, the case Gregg v. Georgia (1976) arose. The legal issue was whether the new death penalty laws were constitutional. The new laws aimed to provide clear guidelines for sentencing, thereby addressing the problem identified in the Furman case.

The Supreme Court held, in a 7-2 decision, that the new death penalty laws were constitutional. According to the Justices, the new laws provided clear guidance to juries and ensured consistent sentencing.

McCleskey v. Kemp (1987)

Lastly, the McCleskey v. Kemp (1987) case questioned the death penalty’s fairness under the Fourteenth Amendment’s Equal Protection Clause. This case addressed whether racial bias influenced death penalty sentences.

The Supreme Court ruled in a 5-4 decision that there was no unconstitutional racial bias in Georgia’s death penalty system. The Court reasoned that McCleskey did not provide enough evidence of intentional racial discrimination in his case.


All in all, procedural law plays a critical role in death penalty cases. Three landmark Supreme Court cases—Furman v. Georgia (1972), Gregg v. Georgia (1976), and McCleskey v. Kemp (1987)—demonstrate this. They have shaped the constitutionality and fairness of the death penalty in the United States.


Furman v. Georgia, 408 U.S. 238 (1972).

Gregg v. Georgia, 428 U.S. 153 (1976).

McCleskey v. Kemp, 481 U.S. 279 (1987).


Modification History

File Created:  08/08/2018

Last Modified:  07/27/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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