Eighth Amendment — Cruel and Unusual Punishment

Amdt8.1 Overview of Eighth Amendment, Cruel and Unusual Punishment

The Eighth Amendment prohibits certain types of punishment: excessive bail, excessive fines, and cruel and unusual punishments.¹ As discussed in more detail in the following essays, these prohibitions were intended to protect persons convicted of crimes from government abuses of power.² Viewed broadly, the Eighth Amendment responded to these historically grounded concerns about disproportionate or cruel punishments by attempting to ensure that punishment is “proportioned to both the offender and the offense.”³ What is excessive is also determined by reference to modern standards; the Supreme Court has suggested proportionality may evolve over time.⁴ Out of the Eighth Amendment’s three clauses, the bar on cruel and unusual punishment has been most frequently interpreted by the Supreme Court, likely in part due to inherent ambiguities in determining what qualifies as cruel or unusual.⁵

The Eighth Amendment generally applies in criminal proceedings, as the most common locus of government punishment, but the Supreme Court has held the Eighth Amendment’s prohibition on excessive fines can apply in civil forfeiture proceedings, noting that the text of the amendment is not limited to “criminal” cases.⁶ Instead, the Court said the relevant constitutional test is whether the government is imposing “punishment,” focusing on the purpose of a sanction.⁷ In addition, although the Eighth Amendment (like the rest of the Bill of Rights) was understood originally to apply only to the federal government, the Supreme Court has held its prohibitions were incorporated in the Fourteenth Amendment’s Due Process Clause, making them applicable to states.⁸

Amdt8.2.1 Historical Background on Excessive Bail

“This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”¹ “The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.”² These two contrasting views of the “excessive bail” provision, expressed by the Court in the same Term, reflect the ambiguity inherent in the phrase and the absence of evidence regarding the intent of those who drafted and who ratified the Eighth Amendment.³

The history of the bail controversy in England is crucial to understanding why the ambiguity exists.⁴ The Statute of Westminster the First of 1275⁵ set forth a detailed enumeration of those offenses that were bailable and those that were not, and, though supplemented by later statutes, it served for something like five and a half centuries as the basic authority.⁶ Darnel’s Case,⁷ in which the judges permitted the continued imprisonment of persons without bail merely upon the order of the King, was one of the moving factors in the enactment of the Petition of Right in 1628.⁸ The Petition cited the Magna Carta as proscribing the kind of detention that was permitted in Darnel’s Case. The right to bail was again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented,⁹ and Parliament reacted by enacting the Habeas Corpus Act of 1679,¹⁰ which established procedures for effectuating release from imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so high that it could not be met, and Parliament responded by including in the Bill of Rights of 1689¹¹ a provision “[t]hat excessive bail ought not to be required.” This language, along with essentially the rest of the present Eighth Amendment, was included within the Virginia Declaration of Rights,¹² was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state ratifying convention,¹³ and was introduced verbatim by James Madison in the House of Representatives.¹⁴

Thus, in England, the right to bail generally was conferred by the basic 1275 statute, as supplemented; the procedure for assuring access to the right was conferred by the Habeas Corpus Act of 1679; and protection against abridgement through the fixing of excessive bail was conferred by the Bill of Rights of 1689. In the United States, the Constitution protected habeas corpus in Article 1, Section 9, but did not confer a right to bail. The question is, therefore, whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right to bail, or whether the phrase “excessive bail” was meant to be a shorthand expression of both rights.

Compounding the ambiguity is a distinctive trend in the United States that had its origin in a provision of the Massachusetts Body of Liberties of 1641:¹⁵ guaranteeing bail to every accused person except those charged with a capital crime or contempt in open court. Copied in several state constitutions,¹⁶ this guarantee was contained in the Northwest Ordinance in 1787,¹⁷ along with a guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789,¹⁸ enacted contemporaneously with the passage through Congress of the Bill of Rights. It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing right to bail could be abridged.

Amdt8.2.2 Modern Doctrine on Bail

Bail, which is “basic to our system of law,”¹ is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.² The issue of bail is only implicated when there is “a direct government restraint on personal liberty, be it in a criminal case or a civil deportation proceeding.”³ In Stack v. Boyle, the Supreme Court found a $50,000 bail to be excessive, given the defendants’ limited financial resources and the lack of evidence that they were a flight risk.⁴ The Court determined that “the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant,” and “[u]nless this right to bail before trial is preserved, the presumption of innocence . . . would lose its meaning.”⁵

In United States v. Salerno, the Court upheld the Bail Reform Act of 1984 provisions regarding preventative detention against facial challenge under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court’s role in adjudicating guilt or innocence.⁶ The Court held that Congress did not violate the Excessive Bail Clause by restricting bail eligibility for “compelling interests” such as public safety, and observed that the Clause “says nothing about whether bail shall be available at all” in a particular situation.⁷ The Court rejected “the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.”⁸ The Court explained that “[t]he only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”⁹ The Court determined that “detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel” satisfies this requirement.¹⁰

The Court further explained in Salerno that if the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then “bail must be set by a court at a sum designed to ensure that goal, and no more.”¹¹ To challenge bail as excessive, the Court held that an individual must move for a reduction, and, if that motion is denied, appeal to the Court of Appeals, and, if unsuccessful, appeal to the Supreme Court Justice sitting for that circuit.¹² The Amendment is apparently inapplicable to postconviction release pending appeal, but the practice has apparently been to grant such releases.¹³

There is, however, no absolute right to bail in all cases.¹⁴ In a civil case, the Court held that the prohibition against excessive bail does not compel the allowance of bail in deportation cases and that “the very language of the Amendment fails to say all arrests must be bailable.”¹⁵ Moreover, although the Court has not explicitly stated such, the Court has “assumed” that “the Eight Amendment’s proscription of excessive bail . . . [applies] to the States through the Fourteenth Amendment.”¹⁶

Amdt8.3 Excessive Fines

For years the Supreme Court had little to say about excessive fines. In an early case, it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record.¹ Justice Lewis Brandeis once contended in dissent that the denial of second-class mailing privileges to a newspaper on the basis of its past conduct, because it imposed additional mailing costs which grew day by day, amounted to an unlimited fine that was an “unusual” and “unprecedented” punishment proscribed by the Eighth Amendment.² The Court has elected to deal with the issue of fines levied upon indigents, resulting in imprisonment upon inability to pay, in terms of the Equal Protection Clause,³ thus obviating any necessity to develop the meaning of “excessive fines” in relation to ability to pay. The Court has held the clause inapplicable to civil jury awards of punitive damages in cases between private parties, “when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.”⁴ The Court based this conclusion on a review of the history and purposes of the Excessive Fines Clause. At the time the Eighth Amendment was adopted, the Court noted, “the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.”⁵ The Eighth Amendment itself, as were antecedents of the clause in the Virginia Declaration of Rights and in the English Bill of Rights of 1689, “clearly was adopted with the particular intent of placing limits on the powers of the new government.”⁶ Therefore, while leaving open the issues of whether the clause has any applicability to civil penalties or to qui tam actions, the Court determined that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.”⁷ The Court has held, however, that the Excessive Fines Clause can be applied in civil forfeiture cases.⁸

In 1998, however, the Court injected vitality into the strictures of the clause. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.”⁹ In United States v. Bajakajian,¹⁰ the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of the country forfeit the currency involved, which totaled $357,144. The Court held that the forfeiture¹¹ in this particular case violated the Excessive Fines Cause because the amount forfeited was “grossly disproportionate to the gravity of defendant’s offense.”¹² In determining proportionality, the Court did not limit itself to a comparison of the fine amount to the proven offense, but it also considered the particular facts of the case, the character of the defendant, and the harm caused by the offense.¹³

Amdt8.4.1 Historical Background on Cruel and Unusual Punishment

During congressional consideration of the Cruel and Unusual Punishments Clause one Member objected to “the import of [the words] being too indefinite” and another Member said: “No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.”¹ It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants,² but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments.³ Though few in number, the decisions of the Supreme Court interpreting this guarantee have applied it in both senses.

Amdt8.4.2 Evolving or Fixed Standard of Cruel and Unusual Punishment

At the end of the nineteenth century, the Supreme Court began to consider whether the standard for “cruel and unusual punishments” was fixed at the time of the framing of the Constitution or whether it was an evolving standard. In the 1878 case Wilkerson v. Utah and the 1890 case In re Kemmler, the Supreme Court weighed whether a punishment was “cruel and unusual” by examining whether the Framers would have considered the punishment or a sufficiently similar variant “cruel and unusual” in 1789.¹ In Wilkerson, however, the Court appeared to suggest that this standard necessarily reflected current norms, noting that while “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted,” it was “safe to affirm that punishments of torture,” such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution.”²

In the twentieth century, the Court began to consider the “cruel and unusual” standard more flexibly, focusing on societal standards, especially as they implicated the “wanton infliction of pain.”³ In 1910, in Weems v. United States,⁴ the Court reasoned that the Framers had not merely intended to bar reinstituting procedures and techniques deemed unacceptable in 1789, but had intended to prevent “a coercive cruelty being exercised through other forms of punishment.” The Weems Court viewed the Eighth Amendment to be of an “expansive and vital character.”⁵ In the words of the plurality opinion in the 1958 decision, Trop v. Dulles, this meant that the amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”⁶

In the context of capital punishment, the Court has generally viewed the Eighth Amendment to prohibit punishments that “involve the unnecessary and wanton infliction of pain.”⁷ The Court has applied this standard to uphold the use of a firing squad⁸ and electrocution.⁹ In other cases, the Supreme Court held that various lethal injection protocols withstood scrutiny under the Eighth Amendment, finding that none of the challenged protocols presented a “substantial risk of serious harm” or an “objectively intolerable risk of harm.”¹⁰

Amdt8.4.3 Proportionality in Sentencing

The Supreme Court has also held that the Eighth Amendment’s prohibition against “cruel and unusual punishments” applies to punishments that are disproportionate to the offense.¹ In 1892, Justice Stephen Field argued in dissent in O’Neil v. Vermont,² that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.” In 1910, the Court appeared to adopt Justice Stephen Field’s view in Weems v. United States,³ striking down a sentence imposed in the Philippine Islands for the offense of falsifying public documents that included fifteen years’ incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance. Comparing the sentence with those meted out for other offenses, the Court concluded: “This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.”⁴

The Court has distinguished death penalty cases from length of sentence cases, providing greater deference to state determinations in the latter. In Rummel v. Estelle,⁵ the Court upheld a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. In its ruling, the Court reasoned that the unique quality of the death penalty rendered capital cases of limited value to cases concerning the length of a sentence.⁶ The Court further distinguished Weems on the ground that the prison conditions and post-release denial of significant rights imposed under the particular Philippine penal code were of considerably greater concern than the length of the sentence. In order to avoid improper judicial interference with state penal systems, the Court reasoned that objective factors must inform Eighth Amendment judgments to the maximum extent possible.⁷ But when a punishment is challenged based on its length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appears to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative discretion.⁸ In dismissing the defendant’s arguments to the contrary, the Court first noted that the nonviolent nature of the offense was not necessarily relevant to the crime’s seriousness, and that determining what is a “small” amount of money, being subjective, was a legislative task. In any event, the Court opined that the state could focus on recidivism not the specific acts. Second, the Court ruled that comparing punishments imposed for the same offenses across jurisdictions was not helpful—differences and similarities being more subtle than gross—and, in any case, in a federal system, one jurisdiction would always be more severe than the rest. Third, the Court noted that comparing punishments imposed for other offenses in the same state ignored the recidivism aspect.⁹

The Court’s deference to state determinations is not inviolate, however. The Court distinguished Rummel in Solem v. Helm,¹⁰ stating unequivocally that the Cruel and Unusual Punishments Clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed,” and that “[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.”¹¹ Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.¹² The Court, however, viewed Helm’s sentence of life imprisonment without possibility of parole to be “far more severe than the life sentence we considered in Rummel v. Estelle.”¹³ Rummel, the Court pointed out, “was likely to have been eligible for parole within twelve years of his initial confinement,” whereas Helm had only the possibility of executive clemency, characterized by the Court as “nothing more than a hope for ‘an ad hoc exercise of clemency.’”¹⁴ The Solem Court also identified “objective criteria” by which proportionality issues should be judged: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”¹⁵ Measured by these criteria, the Court concluded that Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnaping, and arson. In only one other state could Helm have received so harsh a sentence, and in no other state was it mandated.¹⁶

Harmelin v. Michigan ¹⁷ saw a closely divided Court hold that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. The Court limited its opinion to the mandatory nature of the penalty, rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.¹⁸ As to the length of sentence, three majority Justices—Anthony Kennedy, Sandra Day O’Connor, and David Souter—recognized a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed.¹⁹

Twelve years after Harmelin, in Ewing v. California,²⁰ the Court did not reach a consensus on a rationale for rejecting a proportionality challenge to California’s “three-strikes” law, as applied to a sentence of twenty-five years to life in prison for a repeat offender who had stolen three golf clubs valued at $399 apiece. A plurality of three Justices (Sandra Day O’Connor, Anthony Kennedy, and Chief Justice William Rehnquist) determined that the sentence was “justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record,” and hence was not the “rare case” of “gross disproportional[ity].”²¹ The other two Justices voting in the majority were Justice Antonin Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,²² and Justice Clarence Thomas, who asserted that the Cruel and Unusual Punishments Clause “contains no proportionality principle.”²³ The Court also rejected a habeas corpus challenge to California’s “three-strikes” law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.”²⁴ Justice Sandra Day O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area “have not been a model of clarity . . . that have established a clear or consistent path for courts to follow.”²⁵

Amdt8.4.4 Proportionality and Juvenile Offenders

The Court has distinguished the treatment of juvenile offenders in considering proportionality under the “cruel and unusual punishment” standard. In Graham v. Florida,¹ Justice Anthony Kennedy, writing for a five-Justice majority, declared that “[t]he concept of proportionality is central to the Eighth Amendment,” in holding that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”² Justice Anthony Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Anthony Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper v. Simmons.³ In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization—thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders—to actual imposition, which was rare outside Florida. Justice Anthony Kennedy also found support “in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adhere[d] to a sentencing practice rejected the world over.”⁴ After finding that a consensus had developed against the sentencing practice at issue, Justice Anthony Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately.⁵ Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.⁶

The concept of proportionality also drove Justice Elena Kagan’s majority opinion in Miller v. Alabama, in which the Court held that the Eighth Amendment forbids any sentencing scheme that mandates life without parole for juveniles convicted of homicide.⁷ The Miller Court’s analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.⁸ In the Court’s view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark attributes of youth in meting out society’s severest penalties.⁹ Nevertheless, the majority concluded that those factors, even when coupled with the severity of a life without parole sentence, did not require a categorical bar on life without parole for juveniles in homicide cases.¹⁰ Rather, the Court held that sentencers who consider an offender’s youth and attendant characteristics may impose discretionary juvenile life without parole sentences in homicide cases.¹¹ Building on Miller, in Montgomery v. Louisiana, the Court held that Miller’s prohibition on mandatory life without parole sentences for juvenile offenders applied retroactively to convictions that were final before Miller was decided.¹² Justice Anthony Kennedy, joined by five other Justices, explained that Miller had prohibited life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”¹³

After the foregoing decisions expanded Eighth Amendment protections for juvenile offenders, the Supreme Court declined to further extend those protections in Jones v. Mississippi.¹⁴ In that case, a man convicted of murder as a juvenile argued that the Eighth Amendment, as interpreted in Miller and Montgomery, prohibits sentencing juvenile homicide offenders to life without parole unless they are found to be “permanently incorrigible.”¹⁵ Justice Brett Kavanaugh’s majority opinion rejected that argument, holding that “a separate factual finding of permanent incorrigibility is not required” before a juvenile may be sentenced to life without parole.¹⁶ Rather, a state sentencing scheme that gives the sentencer discretion whether to impose a life without parole sentence for a juvenile homicide offender “is both constitutionally necessary and constitutionally sufficient.”¹⁷

Amdt8.4.5 Limitation to Criminal Punishments

The Eighth Amendment deals only with criminal punishment, and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court in Ingraham v. Wright explained that the Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways: First, it limits the kinds of punishment that government can impose on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.”¹ These limitations, the Court thought, should not be extended outside the criminal process.²

Amdt8.4.6 Drug and Alcohol Dependency

In Robinson v. California¹ the Court set aside a conviction under a law making it a crime to “be addicted to the use of narcotics.” The statute was unconstitutional because it punished the “mere status” of being an addict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the state or had committed any act at all within the state’s power to proscribe, and because addiction is an illness that—however it is acquired—physiologically compels the victim to continue using drugs. The case could stand for the principle, therefore, that one may not be punished for a status in the absence of some act,² or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct that he is unable to control, which would make it a holding of far-reaching importance.³ In Powell v. Texas,⁴ a majority of the Justices took the latter view of Robinson, but the result, because of one Justice’s view of the facts, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether either the Eighth Amendment or the Due Process Clauses will govern the requirement of the recognition of capacity defenses to criminal charges remains to be decided.

Amdt8.4.7 Conditions of Confinement

The Supreme Court stated in Rhodes v. Chapman, “It is unquestioned that ‘[c]onfinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards.’”¹ The Court explained that “[c]onditions [in prison] must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” According to the Rhodes Court, prison conditions, “alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities” and thus violate the Eighth Amendment. However “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.”² These general principles apply both to the treatment of individuals³ and to the creation or maintenance of prison conditions that are inhumane to inmates generally.⁴

Ordinarily, the question of whether conditions of confinement are cruel and unusual involves both a subjective and an objective inquiry.⁵ When conditions of confinement are not formally meted out as punishment by the statute or sentencing judge, such conditions cannot qualify as “cruel and unusual punishment” unless the prison officials who impose them possess a culpable, “wanton” state of mind.⁶ In the context of general prison conditions, this culpable state of mind is “deliberate indifference”;⁷ in the context of emergency actions, such as actions required to suppress a disturbance by inmates, only a malicious and sadistic state of mind suffices to violate the Eighth Amendment.⁸ When excessive force is alleged, the objective standard varies depending upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and sadistically to cause harm. In the good-faith context, there must be proof of significant injury. When, however, prison officials “maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated,” and there is no need to prove that “significant injury” resulted.⁹

Beginning in 1970, federal courts found prisons or entire prison systems to violate the Cruel and Unusual Punishments Clause and imposed broad remedial orders to improve prison conditions and ameliorate prison life in more than two dozen states.¹⁰ The Supreme Court upheld challenged portions of one of those decisions in Hutto v. Finney.¹¹ The issues before the Supreme Court in Hutto were limited to the appropriateness of the remedy; however, the Court expressed approval of the district court’s Eighth Amendment analysis.¹² By contrast, in two subsequent cases, the Court rejected Eighth Amendment challenges to the practice of housing two inmates in the same cell.¹³ Although the Court in each case reaffirmed the duty of the federal courts to protect prisoners’ constitutional rights, it cautioned the courts to proceed with deference to the decisions of state legislatures and prison administrators.¹⁴ Thus, concerns of federalism and judicial restraint apparently motivated the Court to limit federal remedies where the prevailing circumstances, given the resources states choose to devote to them, “cannot be said to be cruel and unusual under contemporary standards.”¹⁵ Subsequent cases indicate that such concerns are relevant to Eighth Amendment analysis but are not dispositive.¹⁶

Congress initially authorized litigation over prison conditions in 1980 in the Civil Rights of Institutionalized Persons Act,¹⁷ but then in 1996 added restrictions through the Prison Litigation Reform Act.¹⁸ The Court upheld the latter law’s provision for an automatic stay of prospective relief upon the filing of a motion to modify or terminate that relief, ruling that the automatic stay provision did not violate separation of powers principles.¹⁹

Amdt8.4.8 Divestiture of Citizenship

The Court has looked unfavorably on divestiture of citizenship as a punishment. In Trop v. Dulles, the Court held divestiture of the citizenship of a natural born citizen to be cruel and unusual punishment.¹ The Court viewed divestiture of citizenship as a penalty “more primitive than torture,” because it entailed statelessness or “the total destruction of the individual’s status in organized society.”² The Court commented that: “The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.”³ The Court further reasoned that a punishment must be examined “in light of the basic prohibition against inhuman treatment,” and that the Eighth Amendment was intended to preserve the “basic concept . . . [of] the dignity of man” by assuring that the power to impose punishment is “exercised within the limits of civilized standards.”⁴

Amdt8.4.9.1 Overview of Death Penalty

The Supreme Court’s 1972 decision in Furman v. Georgia,¹ finding constitutional deficiencies in the manner in which the death penalty was applied, but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. The ruling effectively constitutionalized capital sentencing law and involved federal courts in extensive review of capital sentences.²

Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review.³ In Furman and the five 1976 cases that followed, in which the Court reviewed laws⁴ that states had revised in response to Furman, the Court reaffirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review.

Since 1976, the Court has issued many decisions on applying and reconciling the principles it has identified for applying the death penalty. In particular, the Court has held that sentencing discretion must be limited to preventing courts from arbitrarily imposing the death penalty. Accordingly, the Court has established that courts should follow guidelines that narrow and define the category of death-eligible defendants. Jury discretion, however, must be preserved in order for jurors to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

Amdt8.4.9.2 Early Doctrine on Death Penalty

In Trop v. Dulles, the majority refused to consider “the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”¹ But a coalition of civil rights and civil liberties organizations mounted a campaign against the death penalty in the 1960s, and the Court eventually confronted the issues involved. The answers were not, it is fair to say, consistent.

A series of cases testing the means by which the death penalty was imposed² culminated in what appeared to be a decisive rejection of the attack in McGautha v. California.³

The Court added a fourth major guideline in 2002, holding that the Sixth Amendment right to trial by jury comprehends the right to have a jury make factual determinations on which a sentencing increase is based.⁴ This means that capital sentencing schemes are unconstitutional if judges are allowed to make factual findings as to the existence of aggravating circumstances that are prerequisites for imposition of a death sentence.

Amdt8.4.9.3 Furman and Moratorium on Death Penalty

In Furman v. Georgia,¹ the Supreme Court held that the death penalty, at least as administered, violated 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 separate concurring opinions. Two Justices concluded that the death penalty was “cruel and unusual” per se because the imposition of capital punishment “does not comport with human dignity”² or because it is “morally unacceptable” and “excessive.”³ One Justice concluded that because death is a penalty inflicted on the poor and hapless defendant but not the affluent and socially better situated defendant, it violates the implicit requirement of equality of treatment found within the Eighth Amendment.⁴ Two Justices concluded that capital punishment was both “cruel” and “unusual” because it was applied in an arbitrary, “wanton,” and “freakish” manner⁵ and so infrequently that it served no justifying end.⁶

Amdt8.4.9.4 Gregg v. Georgia and Limits on Death Penalty

Because only two of the Justices in Furman thought the death penalty to be invalid in all circumstances, those who wished to reinstate the penalty concentrated upon drafting statutes that would correct the faults identified in the other three majority opinions.¹ Enactment of death penalty statutes by thirty-five states following Furman led to renewed litigation, but not to the elucidation one might expect from a series of opinions.² Instead, although the Court seemed firmly on the path to the conclusion that only criminal acts that result in the deliberate taking of human life may be punished by the state’s taking of human life,³ it 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.⁴ Divisions among the Justices, however, made it difficult to ascertain the form that permissible statutory schemes may take.⁵

Because the three Justices in the majority in Furman who did not altogether reject the death penalty thought the problems with the system revolved about discriminatory and arbitrary imposition,⁶ legislatures turned to enactment of statutes that purported to do away with these difficulties. One approach was to provide for automatic imposition of the death penalty upon conviction for certain forms of murder. More commonly, states established special procedures to follow in capital cases, and specified aggravating and mitigating factors that the sentencing authority must consider in imposing sentence. In five cases in 1976, the Court rejected automatic sentencing but approved other statutes specifying factors for jury consideration.⁷

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment. Although there were differences of degree among the seven Justices in the majority on this point, they all seemed to concur that reenactment of capital punishment statutes by thirty-five 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, to rule 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 that can be overcome only 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. Nor is the punishment of death disproportionate to the crime being punished, murder.⁸

Second, however, a different majority concluded that statutes mandating the imposition of death for crimes classified as first degree murder violate the Eighth Amendment. A review of history, traditional usage, legislative enactments, and jury determinations led the plurality to conclude that mandatory death sentences had been rejected by contemporary standards. Moreover, mandatory sentencing precludes the individualized “consideration of the character and record of the . . . offender and the circumstances of the particular offense” that “the fundamental respect for humanity underlying the Eighth Amendment” requires in capital cases.⁹

A third principle established by the 1976 cases was that the procedure by which a death sentence is imposed must be structured so as to reduce arbitrariness and capriciousness as much as possible.¹⁰ What emerged from the prevailing plurality opinion in these cases are requirements (1) that the sentencing authority, jury or judge,¹¹ be given standards to govern its exercise of discretion and be given the opportunity to evaluate both the circumstances of the offense and the character and propensities of the accused;¹² (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, be presented;¹³ (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 fairly imposed both in light of the facts of the individual case and by comparison with the penalties imposed in similar cases.¹⁴ The Court later ruled, however, that proportionality review is not constitutionally required.¹⁵ Gregg, Proffitt, and Jurek did not require such comparative proportionality review, the Court noted, but merely suggested that proportionality review is one means by which a state may “safeguard against arbitrarily imposed death sentences.”¹⁶

Amdt8.4.9.5 Applying the Death Penalty Fairly

One of the principal objections to imposition of the death penalty, voiced by Justice William O. Douglas in his concurring opinion in Furman, was that it was not being administered fairly—that the capital sentencing laws vesting “practically untrammeled discretion” in juries were being used as vehicles for racial discrimination, and that “discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”¹ This argument has not carried the day. Although the Court has acknowledged the possibility that the death penalty may be administered in a racially discriminatory manner, it has made proof of such discrimination quite difficult.

A measure of protection against jury bias was provided by the Court’s holding that “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.”²

Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp³ that 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.”⁴ Just as important to the outcome, however, was the Court’s application of the two overarching principles of prior capital punishment cases: that a state’s system must narrow a sentencer’s discretion to impose the death penalty (for example, by carefully defining “aggravating” circumstances), but must not constrain a sentencer’s discretion to consider mitigating factors relating to the character of the defendant. Although the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty,⁵ the majority emphasized the need to preserve jury discretion not to impose capital punishment. 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”—a focus that can result in “final and unreviewable” leniency.⁶

Amdt8.4.9.6 Role of Jury and Consideration of Evidence

In response to the Supreme Court’s 1976 decisions on the death penalty,¹ most states narrowed sentencing authority discretion to impose the death penalty by enacting statutes spelling out “aggravating” circumstances and requiring that at least one such aggravating circumstance be found before the death penalty is imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer. Thus, in Godfrey v. Georgia, 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 fairly [so] characterize almost every murder.”² Similarly, in Maynard v. Cartwright, the Court held an “especially heinous, atrocious, or cruel” aggravating circumstance to be unconstitutionally vague.³ The “especially heinous, cruel, or depraved” standard is cured, however, by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim’s death.⁴

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,⁵ and for prison inmates convicted of murder while serving a life sentence without possibility of parole.⁶ Flaws related to those attributed to mandatory sentencing statutes were found in a state’s structuring of its capital system to deny the jury the option of convicting on a lesser included offense, when doing so would be justified by the evidence.⁷ Because the jury had to choose between conviction or acquittal, the statute created the risk that the jury would convict because it felt the defendant deserved to be punished or acquit because it believed death was too severe for the particular crime, when at that stage the jury should concentrate on determining whether the prosecution had proved defendant’s guilt beyond a reasonable doubt.⁸

The overarching principle of Furman v. Georgia⁹ and of the Gregg v. Georgia series of cases¹⁰ was that the 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.”¹¹ As such, discretion was channeled and rationalized. But, in Lockett v. Ohio,¹² a Court plurality determined that a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in the law. In other words, the jury’s discretion was curbed too much. The Lockett Court stated:

[W]e conclude that the Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital case, not be precluded from considering

as a mitigating factor, any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence less

than death.¹³

Similarly, in Woodson v. North Carolina, a three-Justice plurality viewed North Carolina’s mandatory death sentence for persons convicted of first degree murder as invalid because it failed “to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant.”¹⁴ Lockett and Woodson have since been endorsed by a Court majority.¹⁵ 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.¹⁶

The Court has explained this apparent contradiction as recognizing that “individual culpability is not always measured by the category of crime committed,”¹⁷ and an attempt to pursue the “twin objectives” of “measured, consistent application” of the death penalty and “fairness to the accused.”¹⁸ The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps consistency of application; absence of restrictions on mitigating evidence helps promote fairness to the accused through an “individualized” consideration of the defendant’s 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,”¹⁹ 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.”²⁰ 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.”²¹

The Court has 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.²² States may also cure some constitutional errors on appeal through operation of “harmless error” rules and reweighing of evidence by the appellate court.²³ Also, the Court has constrained the use of federal habeas corpus to review state court judgments. As a result, the Court recognized a significant degree of state autonomy in capital sentencing in spite of its rulings on substantive Eighth Amendment law.²⁴

While maintaining the Lockett requirement that sentencers be allowed to consider all mitigating evidence,²⁵ the Court has upheld state statutes that control the relative weight that the sentencer may accord to aggravating and mitigating evidence.²⁶ In Blystone v. Pennsylvania, the Court stated: “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence”²⁷; there is no additional requirement that the jury be allowed to weigh the severity of an aggravating circumstance in the absence of any mitigating factor.²⁸ The legislature may specify the consequences of the jury’s finding an aggravating circumstance; it may mandate that a death sentence be imposed if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance,²⁹ or if the jury finds that aggravating circumstances outweigh mitigating circumstances.³⁰ And a court may instruct that the jury “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling,” because in essence the instruction merely cautions the jury not to base its decision “on factors not presented at the trial.”³¹ 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 as it allows one juror to veto consideration of any and all mitigating factors. Instead, each juror must be allowed to give effect to what he or she believes to be established mitigating evidence.³² Due process is also a consideration; if the state argues for the death penalty based on the defendant’s future dangerousness, due process requires that the jury be informed if the alternative to a death sentence is a life sentence without possibility of parole.³³

One issue the Court had to consider was how a death sentence is impacted if an “eligibility factor” (a factor making the defendant eligible for the death penalty) or an “aggravating factor” (a factor to be weighed against mitigating factors in determining whether a defendant who is eligible for the death penalty should receive it) is found invalid. In Brown v. Sanders, the Court announced “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.”³⁴

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,³⁵ or on a trial judge’s consideration of improper aggravating circumstances.³⁶ In each case, the sentencing authority had found other aggravating circumstances justifying imposing capital punishment. For instance, in Zant, evidence relating to the invalid factor was nonetheless admissible on another basis.³⁷ Even in states that require the jury to weigh statutory aggravating and mitigating circumstances (and even in the absence of written findings by the jury), the appellate court may preserve a death penalty through harmless error review or through reweighing the aggravating and mitigating evidence.³⁸ By contrast, where there is a possibility that the jury’s reliance on a “totally irrelevant” factor (defendant had served time pursuant to an invalid conviction subsequently vacated) may have been decisive in balancing aggravating and mitigating factors, a death sentence may not stand notwithstanding the presence of other aggravating factors.³⁹

In Oregon v. Guzek, the Court could “find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce,” at sentencing, new evidence, available to him at the time of trial, “that shows he was not present at the scene of the crime.”⁴⁰ The Guzek Court observed that although “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” such evidence is a traditional concern of sentencing because it tends to show “how, not whether,” the defendant committed the crime.⁴¹ Alibi evidence, by contrast, concerns “whether the defendant committed the basic crime,” and “thereby attacks a previously determined matter in a proceeding [i.e., sentencing] at which, in principle, that matter is not at issue.”⁴²

The Court’s focus on the character and culpability of the defendant led the Court, initially, to hold that the Eighth Amendment “prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.”⁴³ Four years later, the Court largely overruled⁴⁴ these decisions, however, holding that the Eighth Amendment does allow the jury to consider “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.”⁴⁵ The Court reasoned that the admissibility of victim impact evidence was necessary to restore balance to capital sentencing. In the Court’s view, exclusion of such evidence “unfairly weighted the scales in a capital trial” because there are no corresponding limits on “relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.”⁴⁶

Amdt8.4.9.7 Cognitively Disabled and Death Penalty

The Supreme Court has 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 held in Ford v. Wainwright¹ that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who has a severe mental illness and that properly raised issues of the individual’s mental health at the time of execution must be determined in a proceeding satisfying the minimum requirements of due process.² The Ford Court noted that execution of persons with severe mental illness had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed.³ And, although no states purported to permit the execution of persons with severe mental illness, Florida and some others left the determination to the Governor. Florida’s procedures, the Ford Court held, violated due process because the decision was vested in the Governor without the defendant’s having the opportunity to be heard, the Governor’s decision being based on reports of three state-appointed psychiatrists.⁴

The Court in Panetti v. Quarterman clarified when a prisoner’s current mental state can bar his execution under the Ford rule.⁵ Relying on the understanding that the execution of a prisoner who cannot comprehend the reasons for his punishment offends both moral values and serves “no retributive purpose,” the Court concluded that the operative test was whether a prisoner can “reach a rational understanding for the reason for his execution.”⁶ Under Panetti, if a prisoner’s mental state is so distorted by mental illness that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment,” he cannot be executed.⁷ Furthermore, once a death row inmate has made “a substantial showing that his current mental state would bar his execution” due process entitles him to a hearing at which he may present “evidence and argument from the prisoner’s counsel, including expert psychiatric evidence” in his support of his claim of incompetence and in rebuttal of any state-offered evidence.⁸

Twelve years after Panetti, the Court further clarified two aspects of the Ford-Panetti inquiry in Madison v. Alabama.⁹ First, Ford-Panetti stands for the proposition, the Court declared, that a prisoner cannot be executed for a capital offense if his “‘concept of reality’ is ‘so impair[ed]’ that he cannot grasp the execution’s ‘meaning or purpose’ or the link between [his] crime and its punishment.’”¹⁰ The Court explained that a prisoner challenging his execution on the ground of a mental disability cannot prevail “merely because he cannot remember committing his crime.”¹¹ Instead, a prisoner’s memory loss may be a factor in determining whether the prisoner has a rational understanding of the reason for his execution.¹² Second, the Madison Court concluded that while Ford and Panetti pertained to prisoners suffering from psychotic delusions, the logic of those opinions extended to a prisoner who suffered from dementia.¹³

In 1989, when first confronted with the issue of whether execution of the persons with intellectual disabilities is constitutional, the Court found “insufficient evidence of a national consensus” against executing such people.¹⁴ In 2002, however, the Court determined in Atkins v. Virginia¹⁵ that “much ha[d] changed” since 1989, that the practice had become “truly unusual,” and that it was “fair to say” that a “national consensus” had developed against it.¹⁶ In 1989, only two states and the Federal Government prohibited execution of persons with intellectual disabilities while allowing executions generally.¹⁷ By 2002, an additional sixteen states had prohibited execution of persons with intellectual disabilities, and no states had reinstated the power.¹⁸ But the important element of consensus, the Court explained, was “not so much the number” of states that had acted, but instead “the consistency of the direction of change.”¹⁹ The Court’s own evaluation of the issue reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence—applies with full force to offenders with intellectual disabilities.²⁰ “With respect to retribution—the interest in seeing that the offender gets his ‘just desserts’—necessarily depends on the culpability of the offender.”²¹ Yet reduced intellectual capacity reduces culpability. Deterrence is premised on the ability of offenders to control their behavior. Yet reduced intellectual capacity makes it less likely that an offender will associate his conduct with prospect of the death penalty.²²

Once again, the Court left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”²³ In Schriro v. Smith, the Court again quoted this language, determining that the Ninth Circuit exceeded its authority in holding that Arizona courts were required to conduct a jury trial to resolve a defendant’s claim that he was ineligible for the death penalty because of intellectual disability.²⁴ States, the Court added, are entitled to “adopt[ ] their own measures” for adjudicating claims of intellectual disability though “those measures might, in their application, be subject to constitutional challenge.”²⁵

In Hall v. Florida,²⁶ however, the Court limited the states’ ability to define intellectual disability by invalidating Florida’s “bright line” cutoff based on Intelligence Quotient (IQ) test scores. A Florida statute stated that anyone with an IQ above 70 was prohibited from offering additional evidence of mental disability and was thus subject to capital punishment.²⁷ The Court invalidated this rigid standard, observing that “[i]ntellectual disability is a condition, not a number.”²⁸ The majority found that, although IQ scores are helpful in determining mental capabilities, they are imprecise in nature and may only be used as a factor of analysis in death penalty cases.²⁹ This reasoning was buttressed by a consensus of mental health professionals who concluded that an IQ test score should be read not as a single fixed number, but as a range.³⁰

Building on Hall, in Moore v. Texas the Supreme Court rejected the standards used by Texas state courts to evaluate whether a death row inmate was intellectually disabled, concluding that the standards created an “unacceptable risk that persons with intellectual disability will be executed.”³¹ First, Justice Ruth Bader Ginsburg, on behalf of the Court, held that a Texas court’s conclusion that a prisoner with an IQ score of 74 could be executed was “irreconcilable with Hall” because the state court had failed to consider standard errors that are inherent in assessing intellectual disability.³² Second, the Moore I Court determined that Texas deviated from prevailing clinical standards respecting the assessment of a death row inmate’s intellectual capabilities by (1) emphasizing the petitioner’s perceived adaptive strengths and his behavior in prison;³³ (2) dismissing several traumatic experiences from the petitioner’s past;³⁴ and (3) requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue.³⁵ Third, the Moore I Court criticized the prevailing standard used in Texas courts for assessing intellectual disability in death penalty cases, which had favored the “‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty,’” with regard to those with “mild” intellectual disabilities in the state’s capital system, concluding that those with even “mild” levels of intellectual disability could not be executed under Atkins.³⁶ Finally, Moore rejected the Texas courts’ skepticism of professional standards for assessing intellectual disability, standards that the state courts had viewed as being “exceedingly subjective.”³⁷ The Supreme Court instead held that “lay stereotypes” (and not established professional standards) on an individual’s intellectual capabilities should “spark skepticism.”³⁸ As a result, following Hall and Moore, while the states retain “some flexibility” in enforcing Atkins, the medical community’s prevailing standards appear to “supply” a key constraint on the states in capital cases.³⁹

Amdt8.4.9.8 Minors and Death Penalty

The Court’s conclusion that execution of juveniles constitutes cruel and unusual punishment evolved in much the same manner. Initially, a closely divided Court invalidated one statutory scheme that permitted capital punishment to be imposed for crimes committed before age sixteen, but upheld other statutes authorizing capital punishment for crimes committed by sixteen- and seventeen-year-olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes.¹ Although four Justices favored a flat ruling that the Eighth Amendment barred the execution of anyone younger than sixteen at the time of his offense, concurring Justice Sandra Day O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty. The following year Justice Sandra Day O’Connor again provided the decisive vote when the Court in Stanford v. Kentucky held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age sixteen or seventeen. Like Oklahoma, neither Kentucky nor Missouri² directly specified a minimum age for the death penalty. To Justice Sandra Day O’Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on sixteen- or seventeen-year-old murderers, whereas there was such a consensus against execution of fifteen-year-olds.³

Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing persons with intellectual disabilities with what it saw as a lack of consensus regarding execution of juvenile offenders over age fifteen,⁴ less than three years later the Court held that such a consensus had developed. The Court’s decision in Roper v. Simmons⁵ drew parallels with Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age sixteen or seventeen when they committed their crimes. Since Stanford, five states had eliminated authority for executing juveniles, and no states that formerly prohibited it had reinstated the authority. In all, thirty states prohibited execution of juveniles: twelve that prohibited the death penalty altogether, and eighteen that excluded juveniles from its reach. This meant that twenty states did not prohibit execution of juveniles, but the Court noted that only five of these states had actually executed juveniles since Stanford, and only three had done so in the ten years immediately preceding Roper. Although the pace of change was slower than had been the case with execution of persons with intellectual disabilities, the consistent direction of change toward abolition was deemed more important.⁶

As in Atkins, the Court in Roper relied on its “own independent judgment” in addition to its finding of consensus among the states.⁷ Three general differences between juveniles and adults make juveniles less morally culpable for their actions. Because juveniles lack maturity and have an underdeveloped sense of responsibility, they often engage in “impetuous and ill-considered actions and decisions.” Juveniles are also more susceptible than adults to “negative influences” and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits are “more transitory, less fixed.”⁸ For these reasons, irresponsible conduct by juveniles is “not as morally reprehensible,” they have “a greater claim than adults to be forgiven,” and “a greater possibility exists that a minor’s character deficiencies will be reformed.”⁹ Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”¹⁰

The Roper Court found confirmation for its holding in “the overwhelming weight of international opinion against the juvenile death penalty.”¹¹ Although “not controlling,” the rejection of the juvenile death penalty by other nations and by international authorities was “instructive,” as it had been in earlier cases, for Eighth Amendment interpretation.¹²

Amdt8.4.9.9 Non-Homicide Offenses and Death Penalty

The Supreme Court has considered whether, based on the nature of the underlying offense, imposing capital punishment may be inappropriate. In Kennedy v. Louisiana, the Court stated:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual

punishments flows from the basic ‘precept of justice that punishment for [a] crime

should be graduated and proportioned to [the] offense.’ Whether this requirement has

been fulfilled is determined not by the standards that prevailed when the Eighth

Amendment was adopted in 1791 but by the norms that ‘currently prevail.’ The

Amendment ‘draw[s] its meaning from the evolving standards of decency that mark

the progress of a maturing society.’¹

However, in a dissenting opinion, Justice Samuel Alito opined that the “Court has . . . made it clear that ‘[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.’”²

In Coker v. Georgia,³ the Court held that the state may not impose a death sentence upon a rapist who did not take a human life. In Kennedy v. Louisiana,⁴ the Court held that this was true even when the rape victim was a child.⁵ In Coker, the Court announced that the standard under the Eighth Amendment was that punishments are barred when they “are ‘excessive’ in relation to the crime committed.”⁶ The Court stated:

Under Gregg v. Georgia, a punishment is ‘excessive’ and unconstitutional if it (1)

makes no measurable contribution to acceptable goals of punishment and hence is

nothing more than the purposeless and needless imposition of pain and suffering; or

(2) is grossly out of proportion to the severity of the crime. A punishment might fail the

test on either ground. Furthermore, these Eighth Amendment judgments should not

be, or appear to be, merely the subjective views of individual Justices; judgment should

be informed by objective factors to the maximum possible extent. To this end, attention

must be given to public attitudes concerning a particular sentence—history and

precedent, legislative attitudes, and the response of juries reflected in their sentencing

decisions are to be consulted.⁷

Although the Coker Court thought that the death penalty for rape passed the first test (“it may measurably serve the legitimate ends of punishment”),⁸ it found that it failed the second test (proportionality).⁹ Georgia was the sole state providing for death for the rape of an adult woman, and juries in at least nine out of ten cases refused to impose death for rape. Aside from this view of public perception, the Court independently concluded that death is an excessive penalty for an offender who rapes but does not kill; rape cannot compare with murder “in terms of moral depravity and of the injury to the person and to the public.”¹⁰

In Kennedy v. Louisiana, the Court concluded on the basis of the “teaching of [its] precedents” and the “evolving standards of decency,” evidenced by legislative activity on the issue and the want of related executions, that the Eighth Amendment precludes the death penalty for a person who rapes a child.¹¹

Amdt8.4.9.10 Execution Methods

Throughout the history of the United States, various methods of execution have been deployed by the states in carrying out the death penalty. In the early history of the Nation, hanging was the “nearly universal form of execution.”¹ In the late nineteenth century and continuing into the twentieth century, the states began adopting electrocution as a substitute for hanging based on the “well-grounded belief that electrocution is less painful and more humane than hanging.”² And by the late 1970s, following Gregg, states began adopting statutes allowing for execution by lethal injection, perceiving lethal injection to be a more humane alternative to electrocution or other popular pre-Gregg means of carrying out the death penalty, such as firing squads or gas chambers.³ Today the overwhelming majority of the states that allow for the death penalty use lethal injection as the “exclusive or primary method of execution.”⁴

Despite a national evolution over the past two hundred years with respect to the methods deployed in carrying out the death penalty, the choice to adopt arguably more humane means of capital punishment has not been the direct result of a decision from the Supreme Court. Citing public understandings from the time of the Framing, the Court has articulated some limits to the methods that can be employed in carrying out death sentences, such as those that “superadd” terror, pain, or disgrace to the penalty of death,⁵ for example by torturing someone to death.⁶

Nonetheless, the Supreme Court has “never invalidated a State’s chosen procedure” for carrying out the death penalty as a violation of the Eighth Amendment.⁷ In 1878, the Court, relying on a long history of using firing squads in carrying out executions in military tribunals, held that the “punishment of shooting as a mode of executing the death penalty” did not constitute a cruel and unusual punishment.⁸ Twelve years later, the Court upheld the use of the newly created electric chair, deferring to the judgment of the New York state legislature and finding that it was “plainly right” that electrocution was not “inhuman and barbarous.”⁹ Fifty-seven years later, a plurality of the Court concluded that it would not be “cruel and unusual” to execute a prisoner whose first execution failed due to a mechanical malfunction, as an “unforeseeable accident” did not amount to the “wanton infliction of pain” barred by the Eighth Amendment.¹⁰

The declaration in Trop v. Dulles that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”¹¹ and the continued reliance on that declaration by a majority of the Court in several key Eighth Amendment cases¹² set the stage for potential “method of execution” challenges to the newest mode for the death penalty: lethal injection. Following several decisions clarifying the proper procedural mechanism to raise challenges to methods of execution,¹³ the Court, in Baze v. Rees, rejected a method of execution challenge to Kentucky’s lethal injection protocol, a three-drug protocol consisting of (1) an anesthetic that would render a prisoner unconscious; (2) a muscle relaxant; and (3) an agent that would induce cardiac arrest.¹⁴ A plurality opinion, written by Chief Justice John Roberts and joined by Justices Anthony Kennedy and Samuel Alito, concluded that to constitute cruel and unusual punishment, a particular method for carrying out the death penalty must present a “substantial” or “objectively intolerable” risk of harm.¹⁵ In so concluding, the plurality opinion rejected the view that a prisoner could succeed on an Eighth Amendment method of execution challenge by merely demonstrating that a “marginally” safer alternative existed, because such a standard would “embroil” the courts in ongoing scientific inquiries and force courts to second guess the informed choices of state legislatures respecting capital punishment.¹⁶ As a result, the plurality reasoned that to address a “substantial risk of serious harm” effectively, the prisoner must propose an alternative method of execution that is feasible, can be readily implemented, and can significantly reduce a substantial risk of severe pain.¹⁷ Given the “heavy burden” that the plurality placed on those pursuing an Eighth Amendment method of execution claim, the plurality upheld Kentucky’s protocol in light of (1) the consensus of state lethal injection procedures; (2) the safeguards Kentucky put in place to protect against any risks of harm; and (3) the lack of any feasible, safer alternative to the three-drug protocol.¹⁸ Four other Justices, for varying reasons, concurred in the judgment of the Court.¹⁹

Seven years later, in a seeming reprise of the Baze litigation, a majority of the Court in Glossip v. Gross formally adopted the Baze plurality’s reasoning with respect to Eighth Amendment claims involving methods of execution, resulting in the rejection of a challenge to Oklahoma’s three-drug lethal injection protocol.²⁰ Following Baze, anti-death penalty advocates successfully persuaded pharmaceutical companies to stop providing states with the anesthetic that constituted the first of the three drugs used in the protocol challenged in the 2008 case, resulting in several states, including Oklahoma, substituting a sedative called midazolam in the protocol.²¹ In Glossip, the Court held that Oklahoma’s use of midazolam in its execution protocol did not violate the Eighth Amendment, because the challengers had failed to present a known and available alternative to midazolam and did not adequately demonstrate that the drug was ineffective in rendering a prisoner insensate to pain.²²

Four years after Glossip, the Court further clarified its method-of-execution jurisprudence in Bucklew v. Precythe.²³ In that case, a death row inmate challenged the State of Missouri’s use of the drug pentobarbital in executions because, regardless of its effect on other inmates, the drug would result in him experiencing “severe pain” due to his “unusual medical condition.”²⁴ The Court, in an opinion by Justice Neil Gorsuch, began by framing the Baze-Glossip test as fundamentally asking whether a state’s chosen method of execution is one that “cruelly superadds pain to the death sentence” relative to an alternative method of execution.²⁵ With this framework in mind, the Court first rejected the petitioner’s argument that Baze and Glossip, which involved facial challenges, did not govern his as-applied challenge.²⁶ Justice Neil Gorsuch reasoned that determining whether the state is cruelly “superadding” pain to a punishment necessarily requires comparing that method with a viable alternative, an inquiry that simply does not hinge on whether a death row inmate’s challenge rests on facts unique to his particular medical condition.²⁷ In so concluding, the Court clarified that an inmate seeking to identify an alternative method of execution is not limited to choosing a method that the state currently authorizes and can instead point, for example, to a well-established protocol in another state.²⁸

Applying the Baze-Glossip framework, the Court then rejected the petitioner’s proposed alternative of using the lethal gas, nitrogen hypoxia, because (1) the proposal was insufficiently detailed to permit a finding that the state could carry out the execution easily and quickly;²⁹ (2) the proposed alternative was an “untried and untested” method of execution;³⁰ and (3) the underlying record showed that any risks created by pentobarbital and mitigated by nitrogen hypoxia were speculative in nature.³¹

As a result of Baze, Glossip, and Bucklew, it appears that only those modes of the death penalty that demonstrably result in substantial risks of harm for the prisoner relative to viable alternatives can be challenged as unconstitutional.³² This standard appears to result in the political process (as opposed to the judicial process) being the primary means of making wholesale changes to a particular method of execution.³³