Affirmative action under the constitution. And then the legacy of those decisions. Youre watching American History tv on cspan three. The u. S. Supreme court today ruled that the Death Penalty does not necessarily represent cruel and unusual punishment, and that i can be a deterrent to crime. By seven to two, the judges upheld the Death Penalty in florida georgia and texas, other states may be affected in this similar way. But about five to four, the court struck down Capital Punishment laws and and louisiana. That ruling could prevent still other states from invoking their own Death Penalty laws. All persons having business before the honorable, the Supreme Court of the United States are admonished to drawn their and give their attention. Landmark cases, spends special history series, produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice, may it please the court good evening welcome to cspans landmark cases. Tonight, the Death Penalty in the case of gregg v. Georgia a 1976. As you heard the news report, it was a complicated case with the complicated outcome. The laws in the three states, georgia, florida and texas were upheld, while the laws in louisiana and North Carolina had to be rewritten. It did not settle the Death Penalty debate, which has been going on ever since. Tonight, well talk with to people who spend a lot of time thinking about this part of american Justice System and will help us understand these cases, what the mood in American Society was like, and the legacy of the decisions, lets introduce carol steiker, a professor at harvard law school, she clark wants for Justice Thurgood marshall in the 86 to 87 term. And shes the coauthor, with her brother, of a book called courting death the Supreme Court and Capital Punishment. Kent Kent Scheidegger is faced in sacramento, an organization that advocates in favor of the Death Penalty and for more swift acting criminal Justice System. They found more than 100 trade briefs and Supreme Court cases. Welcome to both of you. The Supreme Court has considered many cases on the Death Penalty. What is it about gregg v. Georgia that makes this a landmark case. Well start with you. The court squarely confirmed the question of whether the Death Penalty per se its constitutional or not. Most other cases have involve particular procedures and statutes, but did not grapple with the question of the constitutionality of it. What else do we know about it . For years previously, the Supreme Court has struck down Capital Punishment as it was practice in the United States, so it abolished Capital Punishment and half the court not backtracked and reinstated the american Death Penalty, the United States wouldve abolished the Death Penalty roughly on the timeframe of our western democratic peers. Today, the United States is the only country in the world that still has the Death Penalty they only western democracy, and we would not be in that situation had these decision overturned. In the series, were spending time learning about the constitution and there are three amendments that really have something to do with this case. First, the fifth amendment. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a present man or indictment of a grand jury, nor be deprived of life, liberty, or property, without the process of law. Also the 14th amendment. No state shall make or enforce any law which abridge the privileges are minute ease of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without the process of law, no denying to any person within its jurisdiction the equal protection of laws. Finally, the eighth amendment, which has excessive bail so not be required nor excessive fines, nor cruel and unusual punishment inflicted. In gregg v. Georgia, were all this constitutional amendments under consideration . Are only one of them. Because the court was reconsidering their decision, mostly the eighth amendment was at stake. That was the basis of the ruling in farm and versus georgia, which is set aside a 1976, but the eighth amendment only applies to the states as opposed to the federal judgment, so both the eighth and the 14th amendment were in play in 1976. The due process and equal protection clause arguments had been considered before by the Supreme Court in 1971 and the court had been upheld. We are going to start by listening to two justices, justices briar and Justice Scalia talking about the decision of cruel and unusual in the eighth amendment. Well hear what they have to say. Here notching, if cases like that arose, would you find them constitutional . I find them constitutional and stupid. A lot of stuff is constitutional and stupid, that cannot be the test. The word in the constitution is cruel, and the word is unusual. Its possible that overtime people have a different idea of what is cruel. That does not mean that that thing is not cruel because somebody in the 18 century thought it wasnt. It may be cool what . The word hasnt changed its meaning. He talks as though its a one way street, you know. We get more gentle over eight, not more cruel. But its not a oneway street. If you think cruel is whatever you think is cruel, not what the founders thought was cruel. What if you begin to think that things arent cruel that they thought were cruel. It thought thumb screws were bad. Nowadays, what the heck. We have a more violent society, not so bad. Is that all that the eighth amendment means . To thine own self be true . Dont do anything that you think is true. We dont want to buy new to our notions of cruel, that cant be what it meant. It will obviously meant to set a standard and once you agreed to that, it sets a standard in both directions. Thats a great piece of tape because you really see the arguments on the court about the meaning of the constitution. When you watch this, for both of you, what is your reaction . Well, i think the real question, and its an ongoing debate in law is how much we should interpret the constitution the way the framers would have interpreted it in 1789 or the constitution ratification . I think robin analogy of this one. Suppose her great grandmother left a bequest in 1930 for her children and childrens children to use the money to eat healthy food. Well, back in 1930 or so, healthy food was red meat, full fat dairy and acts. Suppose today youre trying to be faithful to that request to use it for healthy food. It might not be considered to be steak and eggs and milk. So the idea is that you are being faithful to the meaning of the constitution, or a will, if you interpret it over time as ideas change. Do we have any sense from writings of the founders, the drafters of the constitution, on what they put into this amendment. What was their thought of cruel and unusual meant . Justice scalias view and that tape is a bit of an outlier. That was not the argument and the cases. But as far as what the founders meant, i think they were using a term that was understood in english law. Unusual meant outside the normal allegiances of the law. I think unusuals can change over time, the practices were usual at the time of the founding that are unusual today, having been universally rejected. But thats a different thing from saying that the court attended side on its own that something is cruel and unusual, even though it is the law in most states. The Death Penalty has been part of our society, the first recorded execution was in 16 oh eight indian town, virginia. Execution by firing squad for spying on behalf of the spanish and trading with native tribes. To learn more about the history of the Death Penalty, we visited the Alcatraz East Museum in tennessee, formerly the crime and Punishment Museum in d. C. And learn more details about capital but its been over the centuries. Alcatraz east crime museum is located in tennessee, we used to be in washington, d. C. Capital punishment has always been working through an effort to try and make execution more humane. And our Capital Punishment gallery we have methods that were used in europe, such as burning at the steak and beheadings, drawn and quarter, all those glory things. Coming to the United States, first it was hanging. Each successive message was trying to find ways to make execution more humane and more painless. The electric chair from the Tennessee State prison is called old smoky. It was shoes from 1916 to 1960 and 125 executions. It was made from wood from the former gallows and made by the prisoners. The electric chair is often said as a joke, but it was true that it was developed by a dentist, modifying a dentist chair because he felt that using the modern invention of electrocution would be more humane than hanging. The first execution with the electric chair was in 1890 at all burn present in new york. A man named william killer was executed for murdering his wife with a hatchet, but it did not go as planned or as fast as they were in anticipating. George westinghouse said that they would have done better had they just used an ax. This gas chamber is a reproduction based on the chambers and wyoming and new mexico. If you look up photos of those, it looks very similar because its based on the originals. The gas chamber was only used relatively briefly. It was first used in nevada and 1924, but they first tried using it by filling a cell of a prisoner with gas, theyre trying to kill him while he slept. But because it wasnt airtight, the air escaped and was not safe for the Prison Guards and other employees. So they worked a lot at refining that method, but it never really caught on, partly because of the danger that it opposed to witnesses and guards. Guards really werent comfortable with it, and it took a lot longer than they originally anticipated. It never fully replace the electric chair, and electric chairs were used commonly as an alternative. Later on our program, when we turn to alcatraz east to learn about later methods of execution, before we talk about the Supreme Court cases prior to gregg v. Georgia, i tell you about involving you in the discussion. We want your participation with questions or comments about the Death Penalty. If you live in the eastern or central time zones, reaches at 2027488900. If you live in the mountain or pacific time zones, 2027488901. Or send us a tweet. You can reach us at cspan and use the hashtag landmark cases, and what makes your twitter comments in for our guest throughout the program. I have three cases of notes, Capital Punishment cases. Powell versus alabama, my got a versus california and the furman case in 1972. What do we know about those earlier cases . Well powell did require an appointed lawyer for defendants facing Capital Punishment, but reserved if they would be required a non capital cases, and decided that later. The mcgautha case address the question of whether unguarded discretion injuries, whether they have the authority to decide Capital Punishment or not once convicted of murder without any guidance for instruction, whether that violated the Legal Protection process that were decided the year before furman, and 63 in favor of upholding the systems. And then furman came along the next year and accepted by a five to four margin, very largely as the same margin rejected under mcgautha the. What was happening to Public Opinion in that short period of time that the court was taking up these cases and actually changing its position . Public opinion in the United States and mirrored Public Opinion in the world around the Death Penalty in the 1960s. The Death Penalty came under increasing attack, and many of our peer countries, for example, england abolished the Death Penalty in the 1960s. That was the beginning of the Strong Movement in europe and elsewhere to abolish the Death Penalty. So the Gallup Polling Organization showed that for the first time in history, more people opposed the Death Penalty than supported it in 1966. I think many people thought we were coming to the end of the use of Capital Punishment in the United States. The gallup poll graph actually kind of mirrors the crime rates, if you plot the crime rates, the homicide rates on the same graph as the Death Penalty, the rise and fall together. We try to teach people about how the court operates. Some of the justice trying to follow the news and that sort of thing, but especially in this case, do they really take the temperature of the American Public as it is lighting the case, or decide to consider them . Well, im sure they do. In particular when they consider cases under the eighth amendment, which deals with cruel and unusual punishment. But the court had set for decades that the test for whether something was cruel and unusual was whether it violated the evolving standards of decency that mark the progress of a maturing society. So it was under the eighth amendment that the court took the temperature of prevailing attitudes. What was your opinion on this . The court does take into consideration and gregg opinion, the legislative reaction to furman and the fact that so many states had reinstated the Death Penalty laws after furman. That was an important gauge for the court of what is considered acceptable, and what is unusual in our society today. How many states did react . 35 states, plus the congress. What should we interpret from that . There was absolutely a backlash to furman and the 1970s. And i think it was the timing of that decision, that they had come to the decision at a time of greatly rising crime and fear of terrorism. I think that the court decided made the same decision at a different period of time, we may not have seen the same kind of backlash. We are going to learn more about the five cases that were joined together in these rulings. Before we do that, lets hear from some callers as we get underway here. Greg is in orlando and on the air. Welcome. Hi, great program. Just want to know is a persons legal status does that have any bearing on whether they can be executed in our country . Thank you. Well, legal status . I mean you, have to be convicted of murder, and whether you have a prior conviction in some states as one of the qualifying circumstances. If thats what it means by legal status, then, yes. Leon in brunswick, georgia. Your question . Yes maam. I just wanted to say that id like to know why we keep feeding these criminals and letting them live, and why we put them in there with other criminals that are not killers and have to put up with that. Thats an argument you often hear that, it costs a lot to incarcerate people for life and less expensive to do swift justice and made out their punishment. What do the numbers really tell us about the cost of Death Penalty appeals, versus the cost of incarceration . Its absolutely the opposite. I suppose there was a time in history when it was less expensive to have the Death Penalty that do have life imprisonment, what many states now have studied their own capital Justice Systems and its clear that its far more expensive to have Capital Punishment than it is to have life imprisonment, even when you take into account the cost of incarcerating someone for life. Much more expensive. I think that is one of the reasons weve seen such an declining use of the Death Penalty in recent times. That is just extraordinarily expensive to do. Are those expenses legal challenges . Some are legal challenges. Most of it has to do with the required process that grew out of the gregg decision and the decisions that followed, where the Supreme Court said there are certain procedures mandated by the constitution prior to the 1970s and the d