140 Chapter 4Chapter 4 || Civil LibertiesCivil Libertiesreinstated the death penalty by state referendum in 2016), and dozens of other
countries have done so in recent years. There were 23 executions in the United States
in 2017, which is the third-lowest number since 1991 and well below the peak of 98 in1999.^146 A botched execution in Oklahoma in 2014, in which Clayton Lockett writhed
and gasped for nearly 30 minutes when one of the lines filled with the lethal drugs
failed, led to renewed calls for abolishing the death penalty.^147
Supreme Court Rulings on the Death Penalty The Supreme Court remained silent
on the issue of the death penalty for nearly two centuries. But in 1972 the Court ruled
that the death penalty was unconstitutional because the process of applying it was too
inconsistent. Congress and 35 states rushed to make their laws compliant with the Court
decision. The typical fix was to say more explicitly which crimes were punishable by death
and to make capital sentencing a two-step process: first, the determination of guilt or
innocence, and second, a sentencing phase if the suspect is found guilty. Four years later,
the Court approved these changes and allowed states to bring back the death penalty.^148
While never again challenging the constitutionality of the death penalty, the
Supreme Court has been chipping away at its edges for two decades. The Court has
struck down state laws that mandated the death penalty in murder cases and a law
requiring a death sentence for rape. It has also prohibited the execution of insane
prisoners and abolished the death penalty for the “mentally retarded”—although
the Court left it to the states to define who is “mentally retarded,” it has since struck
down standards in Florida and Texas that it found to be inappropriate indicators of
intellectual capacity.^149 The Court has also prohibited the death penalty for juveniles
under the age of 18 and for child rapists.^150
These death-penalty cases have shown that the Court responds to public opinion
and political change. (This is sometimes called the living Constitution perspective,
as discussed in Chapters 2 and 14.) In his opinion in the juvenile death-penalty case,
Justice Anthony Kennedy noted that 30 states forbid the death penalty for offenders
younger than age 18, which was an increase of 5 states from 1989, when the Court had
upheld the juvenile death penalty. Similarly, the number of states banning the death
penalty for the mentally impaired grew from 14 in 1989 (when the practice was upheld)
to 25 in 2002 (when it was struck down).Privacy Rights
You may be surprised to learn that the word “privacy” does not appear in the
Constitution. Privacy rights were first developed in a 1965 case that questioned
the constitutionality of an 1879 Connecticut law against using birth control. Estelle
Griswold, the director of Planned Parenthood in Connecticut, was arrested nine days
after opening a clinic that dispensed contraceptives. She was fined $100 and appealed
her conviction. Although she lost in state court, she appealed all the way to the Supreme
Court, which overturned her conviction.^151
In a very fractured decision (there were six different opinions), the Court agreed
that the law was outdated, but the justices agreed on little else. Even the justices
who based their opinions on an implied constitutional right to privacy cited various
constitutional roots. Justice William O. Douglas found privacy implicit in the First
Amendment right of association, the Third Amendment’s protection against the
quartering of troops, the Fourth Amendment’s prohibition against unreasonable
searches and seizures, the Fifth Amendment’s protection against self-incrimination,351
people have been exonerated
post-conviction in the United States
based on DNA evidence, out of
1,700 total exonerations. Twenty
of those served time on death
row and 16 more had been convicted
of capital offenses.
Source: The Innocence ProjectDID YOU KNOW?
EXPLAIN WHY THE RIGHTS
ASSOCIATED WITH PRIVACY
ARE OFTEN CONTROVERSIALprivacy rights
Liberties protected by several
amendments in the Bill of Rights
that shield certain personal aspects
of citizens’ lives from governmental
interference, such as the Fourth
Amendment’s protection against
unreasonable searches and seizures.Full_05_APT_64431_ch04_102-147.indd 140 16/11/18 1:31 PM