The death penalty is a complex and controversial form of punishment. The penalty has been around for ages, literally. The first known crimes code, the Code of Hammurabi, established in the 1700s B.C., listed death as punishment for 25 crimes.

Today, the United States is one of only a handful of nations in the western world that still utilizes the death penalty. Most of what we hear and know about capital punishment comes on the final days before an execution, as attorneys for the condemned scramble to convince pardon boards and state Supreme Courts to stop the execution.

There is so much more to the death penalty, and a tragic case in Idaho is focusing the public's attention on the nuanced arguments about state-sponsored death.

Bryan Kohberger has been arrested for the murder of four University of Idaho students back in November of 2022. It is alleged that Kohberger, a doctoral candidate in criminal justice at Washington State University, slipped into the victims' apartment and brutally murdered them.

As Kohberger's case moves toward an August 2025 trial, his attorneys have filed a series of pretrial motions. Most interesting are the motions related to the death penalty.

The defendant contends that Idaho's death penalty statute is unconstitutionally vague, and America's evolving standards of decency has generated a national consensus against the death penalty.

Evolving standards of decency were cited as the basis for the U.S. Supreme Court outlawing the execution of the intellectually disabled in 2002 and juveniles in 2005. The high court determined that a national consensus had been established by the fact that 19 state legislatures had eliminated the death penalty for the intellectually disabled and 30 states had done the same for juveniles.

Kohberger's motions appear to be laying the groundwork for an appeal. This is a significant case, and his legal team has an obligation to zealously raise every issue that could have an impact on his prosecution.

With that said, here is why Kohberger's motions have little chance of success. There is no consensus that the death penalty should be abolished. A majority of states still maintain capital punishment on the books, and according to Gallup, 53% of Americans support the death penalty.

As prosecutors argued in Idaho, despite the defense's claims that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment, the U.S. Supreme Court has never said that the death penalty is cruel and unusual. "The [trial] court should deny the defendant's motion because this is an issue that has already been ruled upon by the Idaho Supreme Court," the prosecution argued, according to the Idaho Statesman. The "[d]efendant is asking this court to ignore Idaho precedent as well as precedent set by the Supreme Court of the United States."

In addition, Kohberger's legal team has suggested that the firing squad, a method of execution authorized by the state of Idaho, is cruel and unusual. It is not, at least according to the Supreme Court. In fact, in the modern era of the death penalty, the first execution in this country was by firing squad — Gary Gilmore in Utah in 1977. There was a firing squad execution in Utah as recently as 2010.

Finally, Kohberger's attorneys want to rewrite the decision of the Supreme Court that ushered in the modern era of the death penalty. In 1972, the high court ruled that the death penalty was being arbitrarily imposed. After a four-year pause, the Supreme Court decided Gregg v. Georgia, finding that Georgia's recently rewritten death penalty statute was constitutional. One of the things that Georgia did to make the death penalty less arbitrary was to bifurcate the trial. First a jury would determine guilty or not guilty. If the verdict is guilty, then a penalty phase would be convened, and the jury would determine life or death.

Kohberger's attorneys are suggesting that the trial court conduct a trifurcated trial. First, guilty or not guilty; then determine if the death penalty applies; then the jury decides life or death. The likelihood is poor that any of these arguments will gain traction at the trial court level.

However, the motions and arguments are a good primer on the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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