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DEATH PENALTY AND DISCRETION - IMPLICATIONS OF THE 'FURMAN' DECISION FOR CRIMINAL JUSTICE

NCJ Number
49726
Journal
Journal of Sociology and Social Welfare Volume: 3 Issue: 6 Dated: (JULY 1976) Pages: 649-655
Author(s)
M RIEDEL
Date Published
1976
Length
7 pages
Annotation
THE FURMAN DECISION AND SUBSEQUENT LEGISLATION ARE EXAMINED, AND IT IS INDICATED THAT THE QUESTIONS RAISED ABOUT DISCRETIONARY DECISIONS ARE EQUALLY APPLICABLE TO NONCAPITAL CRIMINAL OFFENSES.
Abstract
IN FURMAN VERSUS GEORGIA THE SUPREME COURT INDICATED THAT THE DEATH PENALTY CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE 8TH AND 14TH AMMENDMENTS OF THE CONSTITUTION, BECAUSE IT HAD BEEN IMPOSED INFREQUENTLY AND UNDER NO CLEAR STANDARDS. SUBSEQUENT LEGISLATION HAS SOUGHT TO WORK WITHIN THE PERCEIVED PARAMETERS OF FURMAN BY PROVIDING FOR MANDATORY DEATH AS A PENALTY FOR CERTAIN CRIMES OR USING GUIDED DISCRETION STATUTES TO PROVIDE FOR THE DEATH PENALTY WHERE CERTAIN CRIMES ARE ACCOMPANIED BY AGGRAVATING CIRCUMSTANCES IN PARTICULAR CASES. IT IS NOTED THAT LEGISLATION DESIGNED TO IMPLEMENT THE THRUST OF FURMAN MISSES THE POINT OF ELIMINATING ARBITRARINESS AND DISCRIMINATION IN DETERMINING THE IMPOSITION OF THE DEATH PENALTY, AS IT CONCENTRATES EXCLUSIVELY ON THE SENTENCING ASPECT OF THE CRIMINAL JUSTICE PROCESS. POINTS OF DISCRIMINATION AND ARBITRARINESS ARE SHOWN TO EXIST IN THE USE OF PRESENTENCE AND POSTSENTENCE DISCRETION. SHOULD DECISIONMAKING DISCRETION BE CURTAILED BY STATUTE IN THESE AREAS IN CAPITAL CASES, THIS WOULD PROVIDE A BASIS FOR DEMANDING CHANGES IN DISCRETIONARY DECISIONMAKING IN ALL CRIMINAL CASES. THIS IMPLICATION COULD BE AVOIDED BY CONSIDERING THE DEATH PENALTY A UNIQUE SANCTION THAT IS IRREVERSIBLE, THUS REQUIRING SPECIAL PARAMETERS FOR TRIAL PROCEDURES FOR CAPITAL OFFENSES. IT IS SUGGESTED THAT UNDER THIS ASSUMPTION,THE ABOLITION OF THE DEATH PENALTY MAY BE THE APPROPRIATE DECISION DUE TO THE INEVITABLE FALLIBILITY OF THE STATE AND THE PROCEDURES IT EMPLOYS TO TRY AND CONVICT PERSONS ACCUSED OF CRIMINAL OFFENSES. REFERENCES ARE PROVIDED. (RCB)

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