Simone Lawson
The death penalty, also known as capital punishment, is a highly contested issue in the United States. The Eighth Amendment of the Constitution, which forbids cruel and unusual punishment, is often cited in debates surrounding the death penalty, but it does not categorically prohibit it. The Supreme Court has ruled that the death penalty does not violate this amendment, and it can be imposed by Congress and state legislatures for capital offenses. However, the Eighth Amendment does shape procedural aspects of when and how the death penalty is carried out. The Fourteenth Amendment's Due Process Clause further applies the Eighth Amendment's ban on cruel and unusual punishment to the states. This has led to a complex legal history of Supreme Court cases that have influenced the application of the death penalty and continue to do so today.
| Characteristics | Values |
|---|---|
| Death penalty is not inherently cruel and unusual | The Supreme Court has held that a death sentence is not inherently cruel and unusual |
| Eighth Amendment | The Eighth Amendment does not categorically prohibit the death penalty. The federal government can impose capital punishment. |
| Fourteenth Amendment | The Fourteenth Amendment's Due Process Clause incorporates the Eighth Amendment ban on cruel and unusual punishment and applies it to the states. |
| Individualized sentencing process | Before a court can sentence a defendant to death, it must apply an individualized sentencing process. |
| Aggravating and mitigating factors | The death penalty does not violate the Eighth Amendment when the jury decides that aggravating and mitigating factors carry equal weight. |
| Discrimination | The death penalty is not inherently discriminatory, and its administration has been improved. |
| Methods of execution | Hanging and electrocution have not been invalidated on Eighth Amendment grounds. The primary execution method in the US, lethal injection, has been upheld by the Supreme Court on multiple occasions. |
| Morality | Evolving standards of morality make the death penalty impinge on the cruel and unusual punishment clause. |
| Murder rate | 12 states in the US have abolished the death penalty, and in none of them has the murder rate increased. |
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What You'll Learn
The Eighth Amendment
In Furman v. Georgia (1972), the Supreme Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court found that these laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Furman decision set the standard that a punishment would be “cruel and unusual” if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty.
In Gregg v. Georgia (1976), the Supreme Court held that the death penalty itself was constitutional under the Eighth Amendment. The Court also approved three procedural reforms: bifurcated trials, guided discretion statutes, and sentencing guidelines. Bifurcated trials involve separate deliberations for the guilt and penalty phases of the trial. Guided discretion statutes provide guidelines for juries to consider when deciding whether to impose the death penalty. Sentencing guidelines require that the jury consider the specific facts of the case and the defendant when determining the sentence.
While the Eighth Amendment does not categorically prohibit the death penalty, it provides important guidelines and safeguards to ensure that it is imposed fairly and proportionately. The Supreme Court has played a significant role in interpreting and applying the Eighth Amendment to the death penalty, and its decisions have shaped the way capital punishment is administered in the United States.
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Supreme Court rulings
The Eighth Amendment of the US Constitution forbids cruel and unusual punishment, but this does not categorically prohibit the death penalty. The federal government can still impose capital punishment, and some states have kept these laws despite a growing trend toward abolition. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
In the 1960s, there were challenges to the fundamental legality of the death penalty. 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 "cruel and unusual" punishment and therefore unconstitutional under the Eighth Amendment. In Trop v. Dulles (1958), the Supreme Court decided 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 had progressed to a point that its "standard of decency" should no longer tolerate the death penalty.
In the late 1960s, the Supreme Court began "fine-tuning" the way the death penalty was administered. The Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson, where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon the 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. The other 1968 case was Witherspoon v. Illinois, where the Supreme Court held that a potential juror's mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case.
In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California (consolidated under 402 U.S. 183). The defendants argued that 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, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence.
In 1972, the issue of arbitrariness in the death penalty was again brought before the Supreme Court in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as Furman v. Georgia). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. With the Furman decision, the Supreme Court set the standard that a punishment would be "cruel and unusual" if it was too severe for the crime, if it was arbitrary, if it offended society's sense of justice, or if it was not more effective than a less severe penalty. In nine separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing.
In 1976, the Supreme Court decided Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida (collectively referred to as the Gregg decision). This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment. In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time.
In recent decades, the Court has regularly considered multiple capital cases each term. Some of these cases arise from appeals of state rulings involving the US Constitution, while others result from federal decisions on both state and federal death penalty matters. The key question for the Supreme Court is whether the death penalty itself continues to be constitutional in light of its rare use and its rejection by large segments of society. Recent revelations about the risks of executing innocent defendants, racial bias in its application, and the lengthy time inmates spend on death row, have led society to rethink its support of the death penalty.
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Discrimination and the death penalty
The Eighth Amendment of the US Constitution forbids cruel and unusual punishment, but this does not prohibit the death penalty. The Supreme Court has ruled that the death penalty does not violate this amendment. However, the Eighth Amendment does shape procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
The Fourteenth Amendment's Due Process Clause incorporates the Eighth Amendment ban on cruel and unusual punishment, applying it to the states. This means that when reviewing an Eighth Amendment challenge, a court must decide whether a punishment is cruel or unusual according to evolving standards of decency in the community.
Historically, the US Constitution was interpreted as permitting the death penalty. However, in Furman v. Georgia (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court found that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.
In the late 1960s, the Supreme Court began "fine-tuning" the way the death penalty was administered, hearing cases dealing with the discretion given to the prosecutor and the jury in capital cases. In U.S. v. Jackson (1968), the Supreme Court held that requiring the death penalty to be imposed only upon the recommendation of a jury was unconstitutional as it encouraged defendants to waive their right to a jury trial to avoid a potential death sentence.
Despite efforts to address discrimination in the application of the death penalty, racial disparities persist. Research indicates that the race of the victim influences charging, sentencing, and imposition of the death penalty, with a disproportionate use of the death penalty when victims are white. Significant bias also remains regarding the race of the defendant, with black defendants more likely to receive the death penalty.
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Procedural aspects
The Eighth Amendment of the US Constitution forbids cruel and unusual punishment, but this does not categorically prohibit the death penalty. The federal government can still impose capital punishment, and some states have kept these laws despite a growing trend toward abolition. The Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment ban on cruel and unusual punishment and applies it to the states.
The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment. However, the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
The procedural aspects of the Eighth Amendment require that courts consider evolving standards of decency to determine if a particular punishment constitutes cruel or unusual punishment. This involves looking at objective factors to show a change in community standards and making independent evaluations about whether the statute in question is reasonable.
In Furman v. Georgia (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.
In Gregg v. Georgia (1976), the Court refused to expand Furman. It held that the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence. The Court upheld Georgia's new capital sentencing procedures, reasoning that the rules reduced the problem of arbitrary application as seen in earlier statutes. These guided discretion statutes were approved by the Supreme Court, reinstating the death penalty in Florida, Georgia, and Texas.
In addition to sentencing guidelines, three other procedural reforms were approved in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time.
In Kansas v. Marsh (2006), the Supreme Court clarified that states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing. In Baze v. Rees (2008), the Supreme Court held that lethal injection does not constitute cruel and unusual punishment.
In Kennedy v. Louisiana (2008), the Supreme Court held that the death penalty was disproportionate in cases involving the rape of a child. The Court found that national consensus rendered the death penalty disproportionate in these cases, as only six states permitted execution as a penalty for child rape.
In Ring v. Arizona (2002), the Supreme Court held that it is unconstitutional for a sentencing judge, without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty.
In Atkins v. Virginia (2002), the Court found that in the case of mental retardation, the death penalty is cruel and unusual punishment incompatible with the Eighth Amendment.
In U.S. v. Jackson (1968), the Supreme Court held that requiring the death penalty to be imposed only upon the recommendation of a jury was unconstitutional as it encouraged defendants to waive their right to a jury trial.
In Witherspoon v. Illinois (1968), the Supreme Court held that a potential juror's mere reservations about the death penalty were insufficient grounds to prevent them from serving on the jury in a death penalty case.
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Evolving standards of decency
The Eighth Amendment of the US Constitution forbids cruel and unusual punishment, but this does not prohibit the death penalty. The Supreme Court has ruled that the death penalty does not violate this amendment. However, the Eighth Amendment does shape procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
The concept of "evolving standards of decency" has become increasingly pertinent in evaluating what constitutes "cruel and unusual punishment". This concept was first established in 1958 in Trop v. Dulles, where Chief Justice Earl Warren wrote:
> The Court recognized ... that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
In Furman v. Georgia (1972), the Supreme Court invalidated existing death penalty laws, citing violations of the Eighth Amendment due to disproportionate application, specifically discriminating against minority and impoverished communities. This case marks the first convergence of the capital punishment issue with "evolving standards of decency", using societal standards as a constitutional constraint.
In the subsequent Gregg v. Georgia (1976) case, which abrogated Furman, the Justices wrote that "evolving standards of decency" are not focused on the essence of the death penalty but on the governmental procedures employed in selecting individuals for capital punishment. They noted that if not applied arbitrarily, the death penalty is constitutional.
When reviewing an Eighth Amendment challenge, a court must decide whether a punishment is cruel or unusual according to evolving standards of decency in the community. They consider objective factors that may indicate changes in social norms. This proportionality standard has been adopted by the justices to evaluate claims under the Eighth Amendment.
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Frequently asked questions
The Eighth Amendment of the US Constitution forbids cruel and unusual punishment, which is often discussed in relation to the death penalty. The Supreme Court has ruled that the death penalty does not violate this amendment, but it does shape procedural aspects regarding when a jury may use the death penalty and how it must be carried out.
The Supreme Court has handed down many decisions that define when and how the death penalty can be used. For example, in Furman v. Georgia, the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment, discriminating against minority and impoverished communities. However, in Gregg v. Georgia, the Court held that the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence.
Some notable cases include Trop v. Dulles, which solidified the idea of proportionality in criminal punishments, and McGautha v. California, which affirmed the constitutionality of capital punishment and underscored the importance of procedural safeguards. Kennedy v. Louisiana is another example, where the Supreme Court held that the death penalty was disproportionate in a case involving the rape of a child.
There are various arguments against the death penalty. Some claim that it involves dehumanization, total subjugation of the inmate, and extreme psychological pain. Others argue that it is too severe of a punishment, involves revenge, and is too expensive compared to long-term imprisonment. Additionally, there are concerns about discrimination in the application of the death penalty, with killers of whites more likely to receive the death penalty than killers of blacks.
