The death penalty was introduced in America through the common law brought by the British (Garland et. al., 2011). Indeed the British carried out the death penalty in America during the colonial era. When America gained independence, the death penalty was transplanted to the laws of the independent America. Though it was not expressly provided for, they were arguments that since the Eighth Amendment only prohibits unusual and cruel punishments, it does not disallow death penalty. Accordingly, there were several instances of death penalties imposed.
The Supreme Court considered the constitutionality of the death sentence in the case of Furman v. Georgia. The majority of the justices were of the opinion that death penalty as was then being applied was a cruel and unusual punishment, thus it was unconstitutional pursuant to the Eighth Amendment. The majority decried the inconsistency in its application, pointing out that there was some racial bias in its application. The minority were of the opinion that the Fourteenth Amendment to some extent permitted it in relation to serious crime. The final outcome was that the Court suspended the death sentence for five years.
The suspension was lifted in the case of Gregg v. Georgia. The Supreme Court held that death penalty was not per se unconstitutional, but the manner of application might be. Accordingly, it set principles under which it may be applied. The first principle is that the law allowing the death penalty must contain criterion to act as a guide and limitation to the sentencing discretion. Secondly, the disposition and record of the accused must be taken in to account before the sentence is imposed.
The effect of this decision is that States are given the latitude to legislate on the death penalty. One of the States allowing the death penalty is Texas. The offences for which it may be imposed are aggravated sexual assault, capital murder, and capital sabotage. Though the provision on aggravated sexual assault remains in the statute, it may not be allowed owing to a Supreme Court decision nullifying its application on rape. The mitigating factors include victim’s consent, minor participation, duress, impaired capacity, and equally culpable defendant not sentenced to death. The aggravating circumstances are many and relate to the seriousness and magnitude of the offense. The mitigating and aggravating circumstances listed are sound as they ensure that the death sentence is consistently applied.
Garland, D., Mc Gowen, R., and Meranze, M. (eds.) (2011). America’s Death Penalty: Between
Past and Present. New York: New York University Press. Print.
Gregg v. Georgia, 428 U.S. 153 (1976).
Furman v. Georgia, 408 U.S. 238 (1972).