During congressional consideration of this provision, tortures and barbarous punishments were much on the minds of the Members. Several objected to the words being too indefinite and one Member said: ''it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off." But most Americans wanted to copy the English Bill of Rights of 1689 which indicated a concern with arbitrary and disproportionate punishments.

At first, the Court was inclined to an historical view on interpretation, determining whether or not a punishment was ''cruel and unusual'' by looking to see if it or a sufficiently similar variant was considered ''cruel and unusual'' in 1789. But it soon became clear that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of ''a coercive cruelty being exercised through other forms of punishment.'' The Amendment therefore took on an ''expansive and vital character'' and, in the words of a later Court, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases.

It is safe to affirm that punishments of torture [such as drawing and quartering, emboweling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.'' In thus upholding capital punishment inflicted by a firing squad (1857), the Court not only looked to traditional practices but examined the history of executions in the territory concerned, the military practice, and current writings on the death penalty. The Court next approved, under the Fourteenth Amendment's due process clause rather than under the Eighth Amendment, electrocution (1890) as a permissible method of administering punishment. Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States, held that a second electrocution (1947) following a mechanical failure at the first which injured but did not kill the condemned man did not violate the proscription. Lethal gas (1924) (cyanide) was first used by Nevada while the person was asleep in their cell, but public outrage gave rise to the invention of gas chambers which became popular in the 1950s. A coalition of civil rights and civil liberties organizations mounted a campaign against the death penalty in the 1960s, and Lethal injection (1977) was embraced even by death penalty foes and anesthesiologists as a more humane method.

In McGautha v. California. (1971), bifurcated proceedings were required, and with considerable surprise, the Court held in Furman v. Georgia (1972) that the death penalty, at least as administered, did violate the Eighth Amendment. There was no unifying opinion of the Court in Furman; the five Justices in the majority each approached the matter from a different angle in a separate concurring opinion. Two Justices concluded that the death penalty per se was ''cruel and unusual'' because the imposition of capital punishment ''does not comport with human dignity' (Justice Brennan) or because it is ''morally unacceptable'' and ''excessive.' (Justice Marshall). One Justice concluded that because death is a penalty inflicted on the poor and hapless defendant but not the affluent and socially better defendant, it violates the implicit requirement of equality of treatment found within the Eighth Amendment. (Justice Douglas). Two Justices concluded that capital punishment was both ''cruel'' and ''unusual'' because it was applied in an arbitrary, ''wanton,'' and ''freakish'' manner (Justice Stewart) and so infrequently that it serves no justifying end. (Justice White). Dissenters Burger, Blackmun, Powell and Rehnquist believed that the court was engaging in a legislative act to strike the death penalty down.

Those who wished to reinstate the penalty concentrated upon drafting statutes that would correct the faults identified in the majority opinions Enactment of statutes by 35 States following Furman attempted to resurrect the death penalty. This led to renewed litigation, and the Court seemed firmly on the path that first-degree murder was the only criminal act meriting the death penalty, (except Rape, see Coker v. Georgia 1977, felony murder, see Enmund v. Florida 1982, also hijacking and treason -by legislative acts). The Court chose several different paths in attempting to delineate the acceptable procedural devices that must be instituted in order that death may be constitutionally pronounced and carried out. To summarize, the Court determined that the penalty of death for deliberate murder is not per se cruel and unusual, but that mandatory death statutes leaving the jury or trial judge no discretion to consider the individual defendant and his crime are cruel and unusual, and that standards and procedures may be established for the imposition of death that would remove or mitigate the arbitrariness and irrationality found so significant in Furman. Divisions among the Justices, however, made it difficult to ascertain the form which permissible statutory schemes may take. Inasmuch as three Justices in Furman who did not altogether reject the death penalty thought the problems with the system revolved about discriminatory and arbitrary imposition, legislatures turned to enactment of statutes that purported to do away with these difficulties provided by automatic imposition of the death penalty upon conviction for certain forms of murder, and, more commonly, providing specified aggravating and mitigating factors that the sentencing authority should consider in imposing sentence. Several cases in 1976 rejected automatic sentencing, and other cases approved or rejected the specifying factors for jury consideration, the most important of these being Gregg v. Georgia (1976).

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment. While there were differences of degree among the seven Justices in the majority on this point, they all seemed to concur in the position that reenactment of capital punishment statutes by 35 States precluded the Court from concluding that this form of penalty was no longer acceptable to a majority of the American people; rather, they concluded, a large proportion of American society continued to regard it as an appropriate and necessary criminal sanction. Neither is it possible, the Court continued, for it to decide that the death penalty does not comport with the basic concept of human dignity at the core of the Eighth Amendment. Courts are not free to substitute their own judgments for the people and their elected representatives. A death penalty statute, just as all other statutes, comes before the courts bearing a presumption of validity which can only be overcome upon a strong showing by those who attack its constitutionality. Whether in fact the death penalty validly serves the permissible functions of retribution and deterrence, the judgments of the state legislatures are that it does, and those judgments are entitled to deference. Therefore, the infliction of death as a punishment for murder is not without justification and is not unconstitutionally severe. Neither is the punishment of death disproportionate to the crime being punished, murder. But because death is a unique punishment ("death is different"), the sentencing process must provide an opportunity for individual consideration of the character and record of each convicted defendant and his crime along with mitigating and aggravating circumstances (this is often called the Stewart plurality in Gregg v. Georgia).

While the imposition of death is constitutional per se, the procedure by which sentence is passed must be so structured as to reduce arbitrariness and capriciousness as much as possible. What emerged from the prevailing plurality opinion are requirements (1) that the sentencing authority, jury or judge (in 1995 it was decided the 8^th amendment is not violated when the judge has only to consider a jury's death recommendation), be given standards to govern its exercise of discretion and the opportunity to evaluate both the circumstances of the offense and the character and propensities of the accused (only Justice Rehnquist was against standards and the Stewart plurality); in assessing character and record of the defendant, the jury may be required to assess future dangerousness, and hypothetical responses from psychiatrists who have not examined the defendant may be used) (2) that to prevent jury prejudice on the issue of guilt there be a separate proceeding after conviction at which evidence relevant to the sentence, mitigating and aggravating, will be presented; (3) that special forms of appellate review be provided not only of the conviction but also of the sentence, to ascertain that the sentence was in fact fairly imposed both on the facts of the individual case and by comparison with the penalties imposed in similar cases. The Court later ruled, however, that proportionality review is not constitutionally required (1984). Gregg, Proffitt, and Jurek did not require proportionality review, but the Court suggested that proportionality review is one means by which a state may ''safeguard against arbitrarily imposed death sentences.''

Most states responded to the requirement that the sentencing authority be given standards narrowing discretion to impose the death penalty by enacting statutes spelling out ''aggravating'' circumstances at least one of which must be found to be present before the death penalty may be imposed. The standards must be relatively precise and instructive in providing guidance that minimizes the risk of arbitrary and capricious action, the desired result being a principled way to distinguish cases in which the death penalty is imposed from other cases in which it is not. Thus, the Court invalidated a capital sentence based upon a jury finding that the murder was ''outrageously or wantonly vile, horrible, and inhuman,'' reasoning that ''a person of ordinary sensibility could so characterize almost every murder (1980)". Similarly, an ''especially heinous, atrocious or cruel'' aggravating circumstance was held to be unconstitutionally vague. (1988) The ''especially heinous, cruel or depraved'' standard is cured by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim's death. (1990 - see Gregg " ''outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim'', see Proffit v. Florida 1976 - ''especially heinous, atrocious or cruel'' aggravating circumstance as interpreted to include only ''the conscienceless or pitiless crime which is unnecessarily torturous to the victim'' or Creech 1993 - ''exhibited utter disregard for human life''

The proscription against a mandatory death penalty has also received elaboration. The Court invalidated statutes making death the mandatory sentence for persons convicted of first-degree murder of a police officer, (1977) and for prison inmates convicted of murder while serving a life sentence without possibility of parole. (1987) On the other hand, if actual sentencing authority is conferred on the trial judge, it is not unconstitutional for a statute to require a jury to return a death ''sentence'' upon convicting for specified crimes. (1985).

The overarching principle of Furman and of the Gregg series of cases was that a jury should not be ''without guidance or direction'' in deciding whether a convicted defendant should live or die. The jury's attention was statutorily ''directed to the specific circumstances of the crime . . . and on the characteristics of the person who committed the crime.'' (Gregg) Discretion is to be channeled and rationalized. This means that the death penalty must be individualized and particularized. For example, North Carolina's mandatory death sentence for persons convicted of first degree murder was declared invalid in that it failed ''to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant.'' (Woodson v. NC 1976). Woodson has since been endorsed by a Court majority (1982). Thus, a great measure of discretion was again accorded the sentencing authority, be it judge or jury, subject only to the consideration that the legislature must prescribe aggravating factors.

The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps consistency of application; absence of restriction on mitigating evidence helps promote fairness to the accused through an ''individualized'' consideration of his circumstances. In the Court's words, statutory aggravating circumstances ''play a constitutionally necessary function at the stage of legislative definition by circumscribing the class of persons eligible for the death penalty,'' while consideration of all mitigating evidence requires focus on '''the character and record of the individual offender and the circumstances of the particular offense''' consistent with '''the fundamental respect for humanity underlying the Eighth Amendment.'' As long as the defendant's crime falls within the statutorily narrowed class, the jury may then conduct ''an individualized determination on the basis of the character of the individual and the circumstances of the crime.''

So far, Justices who favor abandonment of the Woodson approach have not prevailed. The Court has, however, given states greater leeway in fashioning procedural rules that have the effect of controlling how juries may use mitigating evidence that must be admitted and considered. States may also cure some constitutional errors on appeal through operation of ''harmless error'' rules and reweighing of evidence by appellate courts. As a result of these trends, the Court recognizes a significant degree of state autonomy in capital sentencing in spite of its rulings on substantive Eighth Amendment law.

Juries are not allowed to weigh the severity of an aggravating circumstance in the absence of any consideration of mitigating factors. They may recommend a death sentence if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury finds that aggravating circumstances outweigh mitigating circumstances. And a court may instruct that the jury ''must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling,'' since in essence the instruction merely cautions the jury not to base its decision ''on factors not presented at the trial.'' However, a jury instruction that can be interpreted as requiring jury unanimity on the existence of each mitigating factor before that factor may be weighed against aggravating factors is invalid. Instead, each juror must be allowed to give effect to what he or she believes to be established mitigating factors.

Appellate review under a harmless error standard can preserve a death sentence based in part on a jury's consideration of an aggravating factor later found to be invalid, or on a trial judge's consideration of improper aggravating circumstances. If the jury relied on a ''totally irrelevant'' factor (defendant had served time pursuant to an invalid conviction subsequently vacated), a death sentence may not stand in spite of the presence of other aggravating factors.

Focus on the character and culpability of the defendant led the Court initially to hold that introduction of evidence about the character of the victim or the amount of emotional distress caused to the victim's family or community was inappropriate because it ''creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.'' Victim impact statements are not barred from evidence by the Eighth Amendment, and a state may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. States are barred, however, from offering 'a glimpse of the life' which a defendant 'chose to extinguish'.

A capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.'' A strong statistical showing of racial disparity in capital sentencing cases is insufficient to establish an Eighth Amendment violation. Statistics alone do not establish racial discrimination in any particular case, the Court concluded, but ''at most show only a likelihood that a particular factor entered into some decisions.'' More important than the outcome is the Court's application of the two overarching principles of capital punishment cases: that a state's system must narrow a sentencer's discretion to impose the death penalty (e.g., by carefully defining ''aggravating'' circumstances), and must not constrain consideration of mitigating factors relating to the character of the defendant. The Court sees the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty. Reliance on statistics to establish a prima facie case of discrimination, the Court feared, could undermine the requirement that capital sentencing jurors ''focus their collective judgment on the unique characteristics of a particular criminal defendant''.

The Court has recently grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court holds that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of execution-time sanity must be determined in a proceeding satisfying the minimum requirements of due process. The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continues to be so viewed today. And, while no states purport to permit the execution of the insane, a number leave the determination to the governor, the governor's decision being based on reports of state-appointed psychiatrists.

By contrast the Court in 1989 found ''insufficient evidence of a national consensus against executing mentally retarded people.'' While the Court conceded that ''it may indeed be 'cruel and unusual' punishment to execute persons who are profoundly or severely retarded and wholly lacking the capacity to appreciate the wrongfulness of their actions,'' retarded persons who have been found competent to stand trial, and who have failed to establish an insanity defense, fall into a different category. Consequently, the Court was unwilling to conclude that execution of a mentally retarded person is ''categorically prohibited by the Eighth Amendment.'' What is required in this as in other contexts, however, is individualized consideration of culpability: a retarded defendant must be offered the benefit of an instruction that the jury may consider and give mitigating effect to evidence of retardation or abused background.

There is also no categorical prohibition on execution of juveniles. A closely divided Court has invalidated one statutory scheme which permitted capital punishment to be imposed for crimes committed before age 16, but has upheld other statutes authorizing capital punishment for crimes committed by 16 and 17 year olds. Some states like Indiana and Oklahoma set no minimum age for capital punishment, and many, by separate waiver provisions, allow juveniles to be treated as adults. Four Justices favor a flat ruling against execution of anyone younger than 16 with Justice O'Connor casting decisive votes on modern cases. To Justice O'Connor, the critical difference is that there clearly is no national consensus on capital punishment for juveniles. Justice Scalia's concern is whether states have set age limits.

The Court has continued to tinker with the law of capital punishment throughout the 1990s to reduce the many procedural and substantive opportunities for delay, and to give the states more leeway in administering capital sentencing. The post-Furman creation of procedural protections for capital defendants, premised on a ''death is different'' rationale, has given way to increasing impatience with the delays made possible through procedural protections, especially those associated with federal habeas corpus review. Having consistently held that capital punishment is not inherently unconstitutional, the Court seems bent on streamlining procedures so that states that choose capital punishment may do so without inordinate delays. Strong differences remain, however, over such issues as the appropriate framework for consideration of aggravating and mitigating.

INTERNET RESOURCES:
Death Penalty Information Center
FindLaw's Annotations on 8th Amendment

PRINTED RESOURCES:
Bedau, Hugo (1982) The Death Penalty in America. NY: Oxford Univ. Pres.

Last updated: 06/25/03
Lecture List for Constitutional Law
Instructor Home Page