The Constitution of the United States, as amended by the Bill of Rights, specifically Amendment Five, reads in part, ". . . nor [shall an accused person] be deprived of life, liberty, or property, without due process of law. . . ." Few things in our Constitution are as clear as the recognition of the power of the state to deprive a person of life as punishment for a crime against the stateas long as the accused has had the benefit of due process. The phrase is repeated in Amendment Fourteen in the same section as the Equal Protection Clause. The Constitution, however, also prohibits "cruel and unusual punishments" in Amendment Eight and requires "equal protection of the laws" in Amendment Fourteen. Our Constitution tells us, in theory, when we can execute people. But, while capital punishment is recognized, it is not required, and the Constitution does not prohibit us, as a people, from concluding that executions are morally impermissible.
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Thus, our Founding Fathers left us with state-sanctioned power to inflict capital punishment and a huge debate over how to do itif we should do it at all. The debate is almost as old as the Constitution itself.
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In 1972, that debate reached a climax with a Supreme Court ruling in the case
Furman v Georgia
. The five-to-four decision pretty much reflected contemporaneous American divisions over the issue. The majority (Justices Douglas, Brennan, Marshall, Stewart, and White) ruled that in the cases of Furman, et.al., the imposition and carrying out of the death penalty constituted cruel and unusual punishment and unequal protection in violation of the Eighth and Fourteenth Amendments.
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However, only Brennan and Marshall, both lifelong opponents of the death penalty, argued that the death penalty was,
per se,
cruel and unusual punishment. Brennan asserted that it did "not comport with human dignity" Marshall argued that it was impermissible because it was "morally unacceptable" and "excessive." Douglas, Stewart, and White essentially argued, for different reasons, that the
infrequency
of executions evidenced unequal application. Byron White, in his concurring opinion wrote: "I begin with what I consider a near truism: That the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurable to contribute to any other end of punishment in the criminal justice system. . . . [W]hen the imposition of the death
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