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Abstract

In the case of Furman v. Georgia (1972), the Supreme Court outlawed the death penalty on the grounds that its use constituted cruel and unusual punishment in violation of the Eighth Amendment. No majority opinion was written, but the plurality opinions all agreed that the amount of discretion in death penalty sentencing left too much room for the death penalty to be given arbitrarily. When the death penalty was reinstated in Gregg v. Georgia (1976), the Court approved schemes that limited the discretion of sentencing bodies by providing sentencing guidelines, automatically appealing all death penalty cases for review, or taking other steps toe ensure there was some methodology determining which death penalty-eligible criminals actually receive it. In this paper, I will make the argument that the Court failed to effectively amend the shortcomings of the Furman decision. While the Court addressed discretion to give the death penalty by mandating sentencing guidelines be used and calling for review of all death penalty cases, that is only half of the issue. Sentencing parties also exercise discretion when deciding to give life imprisonment over the death penalty, a discretion that is equally open to arbitrariness. Because arbitrariness and abuse of discretion were the reason the death penalty was ruled unconstitutional in Furman, the best solution to the issue is the mandatory death penalty, which allows little to no room for arbitrariness in influencing sentencing.

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