Capital Punishment: Eighth Amendment Limits

The U. S. Supreme Court has interpreted the prohibition on ‘‘cruel and unusual punishments’’ in the Eighth Amendment to regulate but not forbid the use of capital punishment. The prohibition applies directly against the federal government and against the states through the Due Process Clause in the Fourteenth Amendment. The prohibition restricts the use of capital punishment in three ways. First, it limits execution methods. Second, it proscribes the death penalty for certain classes of offenders and crimes. Finally, it requires that states take steps to limit arbitrariness in the process for selecting the persons who will receive death sentences.

Limits on Execution Methods

Supreme Court decisions offer only general guidance regarding permissible execution methods. The Court has said little about these questions since In re Kemmler, 136 U.S. 436 (1890). Although authorizing electrocution, the Kemmler opinion implied that the Eighth Amendment proscribes not only certain barbarous execution methods that were prohibited at the time of the founding but any method that involves the wanton infliction of pain beyond that justified to extinguish life. In the last century, states have used various forms of execution, including hanging, shooting, gassing, electrocution, and lethal injection. All of these methods have usually been upheld by lower courts. In Louisianna ex rel Francis v. Resweber, 329 U.S. 459 (1947), the Supreme Court also upheld a second death warrant after the electric charge in a prior electrocution attempt failed to kill the inmate. However, since the 1970s, a few opinions of lower courts or of certain Justices dissenting from a Supreme Court denial of review have concluded that some of the methods, particularly hanging, gassing, and electrocution, are always or at least sometimes cruel and unusual. Disagreement remains over precisely how to analyze such claims. Nonetheless, in the modern era, these questions have eluded resolution by the Supreme Court, in part, because states faced with serious challenges have responded by making lethal injection the sole form of execution or an optional form at the request of the inmate. Although the level of physical pain involved will depend on the chemicals and method used, lethal injection is now generally regarded as the most humane execution method. Indeed, lethal injection became the accepted form of execution by the end of the twentieth century.

Prohibitions on the Use of the Death Penalty

The Supreme Court has derived a ‘‘disproportionality’’ principle from the Eighth Amendment that restricts the use of the death penalty mostly to certain murder cases. The disproportionality notion contemplates that a particular punishment can be excessive in application although it is not proscribed altogether. The Supreme Court first articulated this idea in Weems v. United States, 217 U.S. 349 (1910), a noncapital case in which the Justices struck down as excessively harsh for a relatively minor crime a sentence involving twelve years of hard labor and other forfeitures of civil rights. The Supreme Court used the idea in Coker v. Georgia, 433 U.S. 584 (1977), to hold the death penalty categorically impermissible for the rape of an adult woman where no life was taken, and this prohibition has also been applied to other typical, nonhomicidal felonies. The Coker conclusion ultimately reflected a value judgment by the Court that the death penalty was too much retribution for Coker’s crime, although the Justices also pointed to objective evidence that the death penalty was only rarely imposed in the relevant context. Since Coker, the Court has also outlawed the penalty for felonymurder accomplices who are not otherwise highly blameworthy, for the retarded, for previously deathsentenced inmates who are insane, and to those who were juveniles at the time of their crime. The Court has not addressed whether the disproportionality principle forbids the death penalty for treason or similarly serious nonmurder crimes.

Protections against Arbitrariness

The most famous line of Supreme Court cases applying the Eighth Amendment to capital punishment focuses on protections against arbitrariness. These decisions started with Furman v. Georgia, 408 U.S. 238 (1972) ( per curiam), where the Court struck down the then-prevailing approach of submitting the capital sentencing decision to a jury’s largely unfettered discretion. After Furman, many states quickly passed new death-penalty legislation, and the Supreme Court subsequently concluded that certain procedural protections could satisfy the Eighth Amendment. In a famous quintet of cases decided in 1976, including Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion), the Supreme Court struck down statutes from North Carolina and Louisiana that mandated the death penalty on conviction, but it upheld statutes from Georgia, Florida, and Texas that provided for a separate sentencing hearing with at least some standards to limit the capital sentencer’s discretion.

Two principal doctrines of capital sentencing grow out of the 1976 cases. First, in rejecting the mandatory statutes, the Court concluded that capital defendants are entitled to ‘‘individualized consideration’’ on the sentencing question. The Court distinguished noncapital cases, where mandatory sentencing is permitted, on grounds that the unique severity and finality of the death penalty call for heightened reliability. The Court later amplified on the mandate of individualized consideration in Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), holding that a capital sentencer must be free to vote against the death penalty on the basis of any evidence that the offender offers concerning his character, record, or crime.

The Court also stated in the 1976 cases that capital sentencers require guidance but soon modified this idea in Zant v. Stephens, 462 U.S. 862 (1983), to require only a narrowing of the death-eligible group. States have met the narrowing mandate by simply requiring the capital sentencer to find the presence of at least one ‘‘aggravating’’ factor from a statutory list before going on to consider mitigating circumstances at a final stage at which its discretion to reject the death penalty is essentially unfettered.

After Furman, efforts to attack capital sentences using statistical evidence of arbitrariness have failed. In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to Georgia’s post- Furman capital-selection system that relied on a sophisticated, statistical study finding racial bias. The Court questioned whether the study adequately proved racial bias but concluded, in any event, that compliance with procedural rules satisfied the Eighth Amendment.

SCOTT W. HOWE

References and Further Reading

  • Denno, Deborah. ‘‘Execution and the Forgotten Eighth Amendment’’ In America’s Experiment With Capital Punishment, edited by James R. Acker, Robert M. Bohm, and Charles S. Lanier, 547–577. Durham, North Carolina: Carolina Academic Press, 1998. 
  • Howe, Scott W., The Failed Case for Eighth Amendment Regulation of the Capital Sentencing Trial, University of Pennsylvania Law Review 146 (1998): 795–863. 
  • Mortenson, Julian Davis, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, Iowa Law Review 88 (2003): 1099–1163. 
  • White, Welsh S. The Death Penalty in the Nineties. Ann Arbor: University of Michigan Press, 1991. 

Cases and Statutes Cited

  • Coker v. Georgia, 433 U.S. 584 (1977) 
  • Furman v. Georgia, 408 U.S. 238 (1972) ( per curiam) 
  • In re Kemmler, 136 U.S. 436 (1890) 
  • Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion) 
  • Louisianna ex rel Francis v. Resweber, 329 U.S. 459 (1947) 
  • McCleskey v. Kemp, 481 U.S. 279 (1987) 
  • Weems v. United States, 217 U.S. 349 (1910) 
  • Zant v. Stephens, 462 U.S. 862 (1983) 

See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Due Process Limits; Capital Punishment: History and Politics; Capital Punishment Reversed; Capital Punishment and Race Discrimination

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