Constitutionality of the Death Penalty in America
The 1960s brought challenges to the fundamental legality of the capital punishment. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the capital punishment was a "cruel and unusual" punishment, and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court had decided in
Trop v. Dulles (356 U.S. 86), that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop was not a capital punishment case, abolitionists applied the Court's logic to executions and maintained that the United States had, in fact, progressed to a point that its "standard of decency" should no longer tolerate the capital punishment. (Bohm, 1999).

In the late 1960s, the Supreme Court began "fine tuning" the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson (390 U.S. 570), where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.
The other 1968 case was Witherspoon v. Illinois (391 U.S. 510). In this case, the Supreme Court held that a potential juror's mere reservations about the capital punishment were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that the juror's attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment.

In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was "beyond present human ability."

Suspending the Death Penalty
The issue of arbitrariness of the capital punishment was again be brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U.S. 238)). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or it if was not more effective than a less severe penalty.

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the capital punishment because existing statutes were no longer valid.