The Role of the Courts

Few public policy issues have inflamed passions as consistently and as strongly as the debate over capital punishment. Religious communities have been deeply involved on both sides of the issue, drawing on teachings and traditions that define justice and the dignity of human life. The debate over the death penalty has been complicated in recent years by such concerns as the fairness of the criminal justice system, the role of doctors in carrying out executions, and the possibility of reform and rehabilitation among death row inmates.

The debate over capital punishment has been heating up, prompted by two high-profile Supreme Court cases. The first case, Baze v. Rees, tested the constitutionality of the most commonly used form of lethal injection. In a 7-2 decision handed down on April 16, 2008, the court ruled that the method of lethal injection used in almost all states that have death penalty statutes does not violate the U.S. Constitution's Eighth Amendment prohibition on cruel and unusual punishment. The second case, Kennedy v. Louisiana, involved a constitutional challenge to a statute that allows the imposition of capital punishment for a person convicted of raping a child under age 12. In a 5-4 decision issued on June 25, 2008, the court invalidated the statute on the ground that the death penalty is an unconstitutionally severe penalty for crimes that do not result in the victim's death. (While both of these cases are important, the Baze case is the more significant of the two since it applies to many more situations: Only five states besides Louisiana have statutes authorizing the death penalty for child rape, while lethal injection is the method of execution used by the federal government and by all but one of the 37 states with death penalty statutes. Indeed, merely agreeing to hear the Baze case put the use of lethal injection in a state of limbo, prompting states to delay all scheduled executions until a ruling was handed down.

Opponents' desire to end capital punishment is driven by different arguments, including the belief that the government should not be in the business of taking human life and the concern that the death penalty is inherently unfair because it is disproportionately used on minority and lower-income felons. On a more practical level, many opponents of the death penalty contend that it does not deter violent crime. And even if it did, they argue, profound flaws in the criminal justice system ensure that the government cannot be confident that each person who goes to the death chamber is actually guilty of the crime for which he or she has been convicted. Indeed, they point out, the development of sophisticated DNA testing has resulted in the release of hundreds of death row inmates in the last 15 years.

Many supporters of capital punishment, on the other hand, believe some crimes are so brutal and heinous that execution is the only sentence that can ensure justice. Supporters also point to several recent statistical studies that they say show that capital punishment, even though rarely used, does in fact deter violent crime. Moreover, supporters say, modern technology (such as the use of ballistics and DNA evidence) and the lengthy appeals process in most capital cases make it nearly impossible to mistakenly send an innocent person to the death chamber.

Death penalty supporters also point out that a solid majority of the American people have long favored the use of capital punishment. Recent support for the death penalty reached its peak in the late 1980s and early 1990s, when, according to Gallup polls, the number of people in favor of executing convicted murderers climbed as high as 80 percent. Today, 62 percent of the public supports capital punishment for people convicted of murder, according to a 2007 poll by the Pew Forum on Religion & Public Life and the Pew Research Center for the People & the Press. Although religious groups in the U.S. have helped to lead the fight against the death penalty, not all religious bodies oppose its use. (For instance, although the Catholic Church and most mainline Protestant denominations, such as United Methodists and Episcopalians, officially oppose capital punishment, many evangelical churches, including Southern Baptists, support the death penalty.

The Role of the Courts

While capital punishment laws in the U.S. fall under the states' purview, the Supreme Court has played a major role in shaping the use of the death penalty in this country. In the 1930s, for example, the Supreme Court intervened on a number of occasions to overturn death sentences it believed could have been the result of racial discrimination. And in a landmark 1972 decision, Furman v. Georgia, the high court ruled 5-4 that the death penalty, as it was being applied at the time by the states, violated both the Eighth Amendment's prohibition of cruel and unusual punishment and the 14th Amendment's guarantee of equal protection under the law.

The majority decision in Furman was highly fractured, and each of the five justices issued a separate opinion. Still, the general thrust of the opinions was that existing state death penalty statutes were too arbitrary to guarantee the fair and uniform application of capital punishment. One of the five justices, Potter Stewart, famously wrote that "these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." More specifically, the court in Furman found that state-mandated instructions to juries during the sentencing phase in capital punishment cases were too vague and inevitably led to vastly different results, even in cases involving the same type of crime.

As a result of the Furman decision, all death penalty statutes were effectively overturned, and 633 death row inmates in 32 states had their sentences commuted to life in prison. But while the court had essentially