The 1960s brought challenges to the presumed legality of the death penalty. 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 death penalty was a “cruel and unusual” punishment and, therefore, unconstitutional under the Eighth Amendment. In 1958, the Supreme Court 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 death penalty case, abolitionists applied the Court’s logic to executions and maintained that the United States did indeed progress to a point that its “standard of decency” should no longer tolerate the death penalty. In the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered. In 1968, the Court heard two cases which dealt with prosecutorial and jury discretion in capital cases. In U. S. v. Jackson (390 U.S. 570), 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.
In Witherspoon v. Illinois (391 U. S. 510), the Supreme Court maintained that a potential juror’s reservations about the death penalty 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 their attitudes toward capital punishment would prevent them from making an impartial decision about the punishment.
In 1971, the Supreme Court twice addressed the problems associated with the role of jurors and their discretion in capital cases, in 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 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.”