Inferring and Explaining

122 InferrIng and exPlaInIng e 4 . The authors of the Fifth, Eighth, and Four- teenth Amendments concretely intended that capital punishment did not violate the Constitution. e 5 . The authors of the Fifth, Eighth, and Four- teenth Amendments abstractly intended that the entire criminal justice system, including capital punishment, adhere to the theoretical standards of avoiding cruel and unusual pun- ishments and be administered with due pro- cess of law and equal protection of the law. Te past almost ffy years are replete with important constitutional precedents on the death penalty. In these fve decades, we have gone froma period in our historywhere, though constitutional and with defendants being sen- tenced to death, virtually no one was being exe- cuted (1968–1972); where capital punishment as it was then administeredwas ruled to be uncon- stitutional (1972–1976); where newer laws for the administration of capital punishment were deemed to be constitutional (1976); where there was a pretty steady ascendance in executions (1981–1999) to a recent decline in executions (2000–2018). Here are some of the highlights of this tumultuous constitutional history. Some Key Constitutional Precedent e 6 . mCgautha V. CalIfornIa 402 u.s. 183 (1971) Te constitutional issues are succinctly stated in the case syllabus. Petitioner in No. 203 was convicted of frst-degree murder in California, andwas sentenced to death.Te penalty was lef to the jury’s absolute discretion, and punishment was determined in a separate proceeding following the trial on the issue of guilt. Petitioner in No. 204 was convicted of frst-degree murder, andwas sentenced to death in Ohio, where the jury, which also had absolute penalty discretion, determined guilt and penalty afer a single trial and in a single verdict. Cer- tiorari was granted to consider whether petitioners’ rights were infringed by permitting the death penalty without standards to govern its imposition, and in No. 204, to consider the constitutionality of a single guilt and punishment proceeding. Te defendant’s attorneys argued that such sys- tems inevitably resulted in arbitrary and capri- cious administration of the death penalty. Justice Brennan in an unchallenged characterization of the then-common standards for capital sen- tences characterized the situation as follows: Capital sentencing procedures . . . are purposely con- structed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciouslymaximized variation from refecting merely random or arbitrary choice. [Justice Brennan, dissenting.] In spite of this, however, Justice Harlan, writing for the Court, ruled that petitioners contend that to leave the jury completely at large to impose or withhold the death penalty as it sees ft is fundamentally lawless, and therefore vio- lates the basic command of the Fourteenth Amend- ment that no State shall deprive a person of his life without due process of law. Despite the undeniable surface appeal of the proposition, we conclude that the courts below correctly rejected it.