Is There Truly “No Path Forward” for Death Penalty Abolition?
July 2021 | Britannia Woodhouse, Staff Writer/Editor
Capital punishment is currently legal in 27 states in the U.S., but there have been many efforts in some of these states to ban it altogether. The most recent state to ban the death penalty was Virginia, which replaced capital punishment with a sentence of life without parole in 2021.[1] Then, on April 13th, 2021, the Nevada State Assembly attempted to follow in their footsteps and passed the death penalty repeal bill with a vote of 26-16.[2] All Democrats voted in favor of the bill, and all Republicans voted against it. The death penalty repeal bill (AB 395) would have abolished capital punishment in Nevada and changed 70 current death row inmates’ sentences to life without parole.[3] Once the bill advanced to the Senate, however, it became a less expansive bill (SB 228) that would abolish the death penalty for all future offenses but keep the same sentences for those already on death row in Nevada. Nonetheless, the bill failed when legislators could not reach a consensus on possible amendments, and this halted any possible efforts to reform the bill before the legislative deadline. Realizing that the Senate was having trouble on agreeing to amendments for the bill, Nevada Governor Steve Sisolak said “there is no path forward” to ban the death penalty in Nevada.[4]
Politically, Governor Sisolak's comment is true considering the lack of votes in order to send the bill to his desk for ratification, but legally, that is not necessarily the case. In previous efforts to abolish the death penalty or reverse a death sentence, there have been multiple cases concerning the constitutionality of capital punishment. Some cases concluded that capital punishment constitutes cruel and unusual punishment under the 8th amendment, and some concluded that the death penalty is, in fact, constitutional. Two landmark cases regarding the constitutionality of the death penalty are Furman v. Georgia and Gregg v. Georgia, both presented in front of the United States Supreme Court.
In the case of Furman v. Georgia, Furman broke into a home and, in the process, tripped and dropped the gun he was carrying. The gun went off and killed one of the residents in the home. Furman was sentenced to death and the constitutionality of his sentence was questioned. Ultimately, the conclusion was that Furman’s sentence constituted cruel and unusual punishment and was therefore unconstitutional.[5] The ruling was narrow, though, as it only applied to Furman and not to the United States as a whole. Two of the justices, William J. Brennan Jr. and Thurgood Marshall, even maintained that the death penalty is unconstitutional in all cases, not just in Furman’s case. But since Furman lacked an intent to kill, it would be difficult to apply the conclusion of that case to another case where the intention existed. On the other hand, in the case of Gregg v. Georgia, Gregg was found guilty of armed robbery and murder and was sentenced to death. Similar to Furman’s case, his sentence was challenged on the grounds of cruel and unusual punishment. However, the court held that his sentence, and any death sentence for 1st degree murder, was constitutional due to Gregg’s intent to kill.[6] The ruling for Gregg was also narrow, and the death penalty was reinstated in Georgia. As of now, the Supreme Court's stance on the death penalty is that "the punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments.”[7] Therefore, states have open discretion on whether or not to implement the death penalty as a form of punishment, which is typically applied to 1st degree murder cases. As of today, the nationwide opinion on keeping or repealing the death penalty has been nearly split 50-50, as 27 states retained it while 23 states repealed it.
The variety of court opinions on the constitutionality of the death penalty has raised the question of whether or not the death penalty can be banned in the remaining states that still allow it. Since each case has different conclusions, this allows each state to determine whether or not they will implement the death penalty. In Nevada, capital punishment is still legal, though there have only been 12 executions since 1976.[8] This still leaves the option open for future bills to ban the death penalty in Nevada, but this would most likely only happen if there were more politicians who oppose the death penalty voted into the Assembly and the Senate. Although Governor Steve Sisolak’s comment about there being “no path forward” to ban the death penalty in Nevada may sound discouraging for those who want to see an end to capital punishment, his comment is not true in regards to constitutionality. It has been established that it is constitutional to implement the death penalty, or to choose not to implement it, but that decision is left completely up to the states.
Sources
National Conference of State Legislatures. "States and Capital Punishment." June 16, 2021.
Death Penalty Information Center. "Nevada State Assembly Passes Bill to Repeal Death Penalty and Resentence Death-Row Prisoners to Life." April 14, 2021.
Ibid.
Death Penalty Information Center. "Nevada Governor, Senate Leaders Block Death-Penalty Abolition Bill That Passed State Assembly." May 19, 2021.
Furman v. Georgia, 408 U.S. 238 (1972)
Gregg v. Georgia, 428 U.S. 153 (1976)
Ibid.
National Conference of State Legislatures. "States and Capital Punishment." June 16, 2021.