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The Eighth Amendment and the Death Penalty

A part of the Bill of Rights, the Eighth Amendment provides several important protections for people who are convicted of a crime. And perhaps the most widely known portion of the amendment is the protection against "cruel and unusual punishment." Unsurprisingly, this is the language often discussed when it comes to the death penalty. Over the years, the Supreme Court has had to decide whether the Eighth Amendment bars the death penalty - and if not, how far can it go.

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Frequently Asked Questions

Does the death penalty violate the 8th Amendment?

The Supreme Court has held that a death sentence is not inherently cruel and unusual. But, they have concluded laws that make the death penalty mandatory, leaving the jury or trial judge no discretion to consider the individual defendant and their crime, is cruel and unusual. The Court has also identified certain types of cases where the death penalty rises to the level of cruel and unusual punishment. Learn more here...

Can a teenager get the death penalty?

In some cases, yes. In 1989, the Supreme Court held that crimes committed when someone is 16 or 17 can result in a death sentence without violating the Eighth Amendment.

What the Eighth Amendment Says

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

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 the imposition of a death sentence.

Furman v. Georgia Casts Doubt on Death Penalty

The Court's 1972 decision in Furman v. Georgia,5 finding constitutional deficiencies but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run, the ruling may have had only a minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in an extensive review of capital sentences.6

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. Furman and the five 1976 follow-up cases that reviewed state laws revised in light of Furman reaffirmed the constitutionality of capital punishment. But, they also opened up several avenues for constitutional review.

The Court held in Furman7 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 a separate concurring opinion. Two justices concluded that the death penalty was cruel and unusual per se because the imposition of capital punishment does not comport with human dignity8 or because it is morally unacceptable and excessive.9

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.10 Two justices concluded that capital punishment was both cruel and unusual because it was applied in an arbitrary, wanton, and freakish manner11 and so infrequently that it served no justifying end.12

Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through the application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

The States Respond With New Death Penalty Statutes

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.13

Enactment of death penalty statutes by 35 states following Furman led to renewed litigation, but not to the elucidation one might expect from a series of opinions.14 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,15 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.

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.16 Divisions among the Justices, however, made it difficult to ascertain the form that permissible statutory schemes may take.17

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,18 legislatures turned to the 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 sentences. In five cases in 1976, the Court rejected automatic sentencing but approved other statutes specifying factors for jury consideration.19

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 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, 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.20

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.21

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.22

What emerged from the prevailing plurality opinion in these cases are requirements that:

  • The sentencing authority, jury, or judge,23 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;24
  • There be a separate proceeding after conviction at which evidence relevant to the sentence, mitigating and aggravating, be presented;25
  • 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.26

The Court later ruled, however, that proportionality review is not constitutionally required.27 GreggProffitt, 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.28

Is the Death Penalty Discriminatory?

One of the principal objections to the imposition of the death penalty, voiced by Justice Douglas in his concurring opinion in Furman, was that it was not being administered fairly—that the capital sentencing laws vesting practically untrammeled discretion on 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.29 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.30 Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp31 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.32 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 (e.g., 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,33 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.34

The Role of the Jury in Death Penalty Cases

Most states responded to the 1976 requirement that the sentencing authority's discretion be narrowed 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 to minimize the risk of arbitrary and capricious action by the sentencer, the desired result being a principled way to distinguish cases in which the death penalty should be imposed from cases in which it should not be. 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 fairly [so] characterize almost every murder.35 Similarly, an especially heinous, atrocious, or cruel aggravating circumstance was held to be unconstitutionally vague.36 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.37

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,38 and for prison inmates convicted of murder while serving a life sentence without possibility of parole.39 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.40 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.41

The overarching principle of Furman and of the Gregg series of cases 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.42 Discretion was channeled and rationalized. But, in Lockett v. Ohio,43 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.

"[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."44

Similarly, the reason that a three-justice plurality viewed North Carolina's mandatory death sentence for persons convicted of first-degree murder as invalid was that it failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant.45 Lockett and Woodson have since been endorsed by a Court majority.46 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.47

The Court has explained this apparent contradiction as constituting recognition that individual culpability is not always measured by the category of crime committed,48 and as the product of an attempt to pursue the twin objectives of measured, consistent application of the death penalty and fairness to the accused.49 The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps with consistency of application; the 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,"50 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.51 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.52

So far, the Justices who favor abandonment of the Lockett and 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.53 States may also cure some constitutional errors on appeal through operation of harmless error rules and reweighing of evidence by the appellate court.54 Also, the Court has constrained the use of federal habeas corpus to review state court judgments. 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.55

While holding fast to the Lockett requirement that sentencers be allowed to consider all mitigating evidence,56 the Court has upheld state statutes that control the relative weight that the sentencer may accord to aggravating and mitigating evidence.57 The requirement of individualized sentencing is satisfied by allowing the jury to consider all relevant mitigating evidence; 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.58 So, too, 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,59 or if the jury finds that aggravating circumstances outweigh mitigating circumstances.60 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.61 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 in effect allowing 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.62 Due process considerations can also come into play; 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 the possibility of parole.63

What is the effect on a death sentence 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 has been found eligible for the death penalty should receive it) is found invalid? In Brown v. Sanders, the Court announced the following rule: 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.64

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,65 or on a trial judge's consideration of improper aggravating circumstances.66 In each case the sentencing authority had found other aggravating circumstances justifying the imposition of capital punishment, and in Zant evidence relating to the invalid factor was nonetheless admissible on another basis.67 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 a reweighing of the aggravating and mitigating evidence.68 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.69

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.70 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.71 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.72

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.73 Four years later, the Court largely overruled74 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.75 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.76

Related Resources


  1. 356 U.S. 86, 99 (1958).
  2. In Rudolph v. Alabama, 375 U.S. 889 (1963), Justices Goldberg, Douglas, and Brennan, dissenting from a denial of certiorari, argued that the Court should have heard the case to consider whether the Constitution permitted the imposition of death on a convicted rapist who has neither taken nor endangered human life, and presented a line of argument questioning the general validity of the death penalty under the Eighth Amendment. The Court addressed exclusion of death-scrupled jurors in Witherspoon v. Illinois, 391 U.S. 510 (1968)Witherspoon and subsequent cases explicating it are discussed under Sixth Amendment—Impartial Jury.
  3. 402 U.S. 183 (1971). McGautha was decided in the same opinion with Crampton v. Ohio. McGautha raised the question of whether provision for imposition of the death penalty without legislative guidance to the sentencing authority in the form of standards violated the Due Process Clause; Crampton raised the question of whether due process was violated when both the issue of guilt or innocence and the issue of whether to impose the death penalty were determined in a unitary proceeding. Justice Harlan for the Court held that standards were not required because, ultimately, it was impossible to define with any degree of specificity which defendant should live and which die; although bifurcated proceedings might be desirable, they were not required by due process.
  4. Ring v. Arizona, 536 U.S. 584 (2002)See also Hurst v. Florida, 136 S. Ct. 616, 619–20 (2016).
  5. 408 U.S. 238 (1972).
  6. See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355 (1995).
  7. 408 U.S. 238 (1972). The change in the Court's approach was occasioned by the shift of Justices Stewart and White, who had voted with the majority in McGautha.
  8. 408 U.S. at 257 (Justice Brennan).
  9. 408 U.S. at 314 (Justice Marshall).
  10. 408 U.S. at 240 (Justice Douglas).
  11. 408 U.S. at 306 (Justice Stewart).
  12. 408 U.S. at 310 (Justice White). The four dissenters, in four separate opinions, argued with different emphases that the Constitution itself recognized capital punishment in the Fifth and Fourteenth Amendments, that the death penalty was not cruel and unusual when the Eighth and Fourteenth Amendments were proposed and ratified, that the Court was engaging in a legislative act to strike it down now, and that even under modern standards it could not be considered cruel and unusual. Id. at 375 (Chief Justice Burger), 405 (Justice Blackmun), 414 (Justice Powell), 465 (Justice Rehnquist). Each of the dissenters joined each of the opinions of the others.
  13. Collectors of judicial put downs of colleagues should note Justice Rehnquist's characterization of the many expressions of faults in the system and their correction as glossolalia. Woodson v. North Carolina, 428 U.S. 280, 317 (1976) (dissenting).
  14. Justice Frankfurter once wrote of the development of the law through the process of litigating elucidation. International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 619 (1958). The Justices are firm in declaring that the series of death penalty cases failed to conform to this concept. See, e.g., Chief Justice Burger, Lockett v. Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) (The signals from this Court have not always been easy to decipher); Justice White, id. at 622 (The Court has now completed its about-face since Furman) (concurring in result); and Justice Rehnquist, id. at 629 (dissenting) (the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed), and id. at 632 (I am frank to say that I am uncertain whether today's opinion represents the seminal case in the exposition by this Court of the Eighth and Fourteenth Amendments as they apply to capital punishment, or whether instead it represents the third false start in this direction within the past six years).
  15. On crimes not involving the taking of life or the actual commission of the killing by a defendant, see Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman); Kennedy v. Louisiana, 128 S. Ct. 2461 (2008) (rape of an eight-year-old child); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder where defendant aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place). Compare Enmund with Tison v. Arizona, 481 U.S. 137 (1987) (death sentence upheld where defendants did not kill but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial). Those cases in which a large threat, though uneventuated, to the lives of many may have been present, as in airplane hijackings, may constitute an exception to the Court's narrowing of the crimes for which capital punishment may be imposed. The federal hijacking statute, 49 U.S.C. § 46502, imposes the death penalty only when a death occurs during commission of the hijacking. By contrast, the treason statute, 18 U.S.C. § 2381, permits the death penalty in the absence of a death, and represents a situation in which great and fatal danger might be present. But the treason statute also constitutes a crime against the state, which may be significant. In Kennedy v. Louisiana, 128 S. Ct. 2641, 2659 (2008), in overturning a death sentence imposed for the rape of a child, the Court wrote, Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.
  16. Justices Brennan and Marshall adhered to the view that the death penalty is per se unconstitutional. E.g.Coker v. Georgia, 433 U.S. 584, 600 (1977)Lockett v. Ohio, 438 U.S. 586, 619 (1978)Enmund v. Florida, 458 U.S. 782, 801 (1982).
  17. A comprehensive evaluation of the multiple approaches followed in Furman-era cases may be found in Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).
  18. Thus, Justice Douglas thought the penalty had been applied discriminatorily, Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart thought it wantonly and . . . freakishly imposed, id. at 310, and Justice White thought it had been applied so infrequently that it served no justifying end. Id. at 313.
  19. The principal opinion was in Gregg v. Georgia, 428 U.S. 153 (1976) (upholding statute providing for a bifurcated proceeding separating the guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court). Statutes of two other states were similarly sustained, Proffitt v. Florida, 428 U.S. 242 (1976) (statute generally similar to Georgia's, with the exception that the trial judge, rather than jury, was directed to weigh statutory aggravating factors against statutory mitigating factors), and Jurek v. Texas, 428 U.S. 262 (1976) (statute construed as narrowing death-eligible class, and lumping mitigating factors into consideration of future dangerousness), while those of two other states were invalidated, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating death penalty for first-degree murder).
  20. Gregg v. Georgia, 428 U.S. 153, 168–87 (1976) (Justices Stewart, Powell, and Stevens); Roberts v. Louisiana, 428 U.S. 325, 350–56 (1976) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). The views summarized in the text are those in the Stewart opinion in Gregg. Justice White's opinion basically agrees with this opinion in concluding that contemporary community sentiment accepts capital punishment, but did not endorse the proportionality analysis. Justice White's Furman dissent and those of Chief Justice Burger and Justice Blackmun show a rejection of proportionality analysis. Justices Brennan and Marshall dissented, reiterating their Furman views. Gregg, 428 U.S. at 227, 231.
  21. Woodson v. North Carolina, 428 U.S. 280 (1976)Roberts v. Louisiana, 428 U.S. 325 (1976). Justices Stewart, Powell, and Stevens composed the plurality, and Justices Brennan and Marshall concurred on the basis of their own views of the death penalty. Id. at 305, 306, 336.
  22. Here adopted is the constitutional analysis of the Stewart plurality of three. [T]he holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds, Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976), a comment directed to the Furman opinions but equally applicable to these cases and to LockettSee Marks v. United States, 430 U.S. 188, 192–94 (1977).
  23. The Stewart plurality noted its belief that jury sentencing in capital cases performs an important social function in maintaining the link between contemporary community values and the penal system, but agreed that sentencing may constitutionally be vested in the trial judge. Gregg v. Georgia, 428 U.S. 153, 190 (1976). Subsequently, however, the Court issued several opinions holding that the Sixth Amendment right to a jury trial is violated if a judge makes factual findings (e.g., as to the existence of aggravating circumstances) upon which a death sentence is based. Hurst v. Florida, 136 S. Ct. 616, 619–20 (2016); Ring v. Arizona, 536 U.S. 584 (2002). Notably, one Justice in both cases would have found that the Eighth Amendment—not the Sixth Amendment—requires that a jury, not a judge, make the decision to sentence a defendant to death. Ring, 536 U.S. at 614 (Breyer, J., concurring in the judgment). See also Hurst, 136 S. Ct. at 619 (Breyer, J., concurring in the judgment).
  24. Gregg v. Georgia, 428 U.S. 153, 188–95 (1976). Justice White seemed close to the plurality on the question of standards, id. at 207 (concurring), but while Chief Justice Burger and Justice Rehnquist joined the White opinion agreeing that the system under review comports with Furman, Justice Rehnquist denied the constitutional requirement of standards in any event. Woodson v. North Carolina, 428 U.S. 280, 319–21 (1976) (dissenting). In McGautha v. California, 402 U.S. 183, 207–08 (1971), the Court had rejected the argument that the absence of standards violated the Due Process Clause. On the vitiation of McGauthasee Gregg, 428 U.S. at 195 n.47, and Lockett v. Ohio, 438 U.S. 586, 598–99 (1978). In assessing the character and record of the defendant, the jury may be required to make a judgment about the possibility of future dangerousness of the defendant, from psychiatric and other evidence. Jurek v. Texas, 428 U.S. 262, 275–76 (1976). Moreover, testimony of psychiatrists need not be based on examination of the defendant; general responses to hypothetical questions may also be admitted. Barefoot v. Estelle, 463 U.S. 880 (1983)But cf. Estelle v. Smith, 451 U.S. 454 (1981) (holding Self-incrimination and Counsel Clauses applicable to psychiatric examination, at least when a doctor testifies about his conclusions with respect to future dangerousness).
  25. Gregg v. Georgia, 428 U.S. 153, 163, 190–92, 195 (1976) (plurality opinion). McGautha v. California, 402 U.S. 183 (1971), had rejected a due process requirement of bifurcated trials, and the Gregg plurality did not expressly require it under the Eighth Amendment. But the plurality's emphasis upon avoidance of arbitrary and capricious sentencing by juries seems to look inevitably toward bifurcation. The dissenters in Roberts v. Louisiana, 428 U.S. 325, 358 (1976), rejected bifurcation and viewed the plurality as requiring it. All states with post-Furman capital sentencing statutes took the cue by adopting bifurcated capital sentencing procedures, and the Court has not been faced with the issue again. See Raymond J. Pascucci, et al., Special Project, Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency, 69 Cornell L. Rev. 1129, 1224–25 (1984).
  26. Gregg v. Georgia, 428 U.S. 153, 195, 198 (1976) (plurality); Proffitt v. Florida, 428 U.S. 242, 250–51, 253 (1976) (plurality); Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality).
  27. Pulley v. Harris, 465 U.S. 37 (1984).
  28. 465 U.S. at 50.
  29. 408 U.S. at 248, 257.
  30. Turner v. Murray, 476 U.S. 28, 36–37 (1986).
  31. 481 U.S. 279 (1987) (5-to-4 decision).
  32. 481 U.S. at 308.
  33. 481 U.S. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens).
  34. 481 U.S. at 311. Concern for protecting the fundamental role of discretion in our criminal justice system also underlay the Court's rejection of an equal protection challenge in McCleskeySee discussion of Capital Punishment under the Fourteenth Amendment, infraSee also United States v. Bass, 536 U.S. 862 (2002) (per curiam), requiring a threshold evidentiary showing before a defendant claiming selective prosecution on the basis of race is entitled to a discovery order that the government provide information on its decisions to seek the death penalty.
  35. Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion).
  36. Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988)But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the circumstances of the crime, the defendant's prior criminal activity, and the age of the defendant, without further guidance, is not unconstitutionally vague).
  37. Walton v. Arizona, 497 U.S. 639 (1990)AccordLewis v. Jeffers, 497 U.S. 764 (1990)See also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (upholding full statutory circumstance of outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim); Proffitt v. Florida, 428 U.S. 242, 255 (1976) (upholding especially heinous, atrocious or cruel aggravating circumstance as interpreted to include only the conscienceless or pitiless crime which is unnecessarily torturous to the victim); Sochor v. Florida, 504 U.S. 527 (1992) (impermissible vagueness of heinousness factor cured by narrowing interpretation including strangulation of a conscious victim); Arave v. Creech, 507 U.S. 463 (1993) (consistent application of narrowing construction of phrase exhibited utter disregard for human life to require that the defendant be a cold-blooded, pitiless slayer cures vagueness); Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a narrowing construction because it had done so numerous times).
  38. Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different defendant from the first Roberts v. Louisiana case, 428 U.S. 325 (1976).
  39. Sumner v. Shuman, 483 U.S. 66 (1987).
  40. Beck v. Alabama, 447 U.S. 625 (1980). The statute made the guilt determination depend . . . on the jury's feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue. Id. at 640. Cf. Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity is present, however, if failure to instruct on lesser included offenses is due to the defendant's refusal to waive the statute of limitations for those lesser offenses. Spaziano v. Florida, 468 U.S. 447 (1984)See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant charged with felony murder did not have right to instruction as to second-degree murder or manslaughter, where Nebraska traditionally did not consider these lesser included offenses). See also Schad v. Arizona, 501 U.S. 624 (1991) (first-degree murder defendant, who received instruction on lesser included offense of second-degree murder, was not entitled to a jury instruction on the lesser included offense of robbery). In Schad, the Court also upheld Arizona's characterization of first-degree murder as a single crime encompassing two alternatives, premeditated murder and felony murder, and not requiring jury agreement on which alternative had occurred.
  41. Also impermissible as distorting a jury's role are prosecutor's comments or jury instructions that mislead a jury as to its primary responsibility for deciding whether to impose the death penalty. Compare Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury's responsibility is undermined by court-sanctioned remarks by prosecutor that jury's decision is not final, but is subject to appellate review) with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not undermined by instruction that governor has power to reduce sentence of life imprisonment without parole). See also Lowenfield v. Phelps, 484 U.S. 231 (1988) (poll of jury and supplemental jury instruction on obligation to consult and attempt to reach a verdict was not unduly coercive on death sentence issue, even though consequence of failing to reach a verdict was automatic imposition of life sentence without parole); Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of death penalty after introduction of evidence that defendant had been sentenced to death previously did not diminish the jury's sense of responsibility so as to violate the Eighth Amendment); Jones v. United States, 527 U.S. 373 (1999) (court's refusal to instruct the jury on the consequences of deadlock did not violate Eighth Amendment, even though court's actual instruction was misleading as to range of possible sentences).
  42. Gregg v. Georgia, 428 U.S. 153, 197–98 (1976) (plurality).
  43. 438 U.S. 586 (1978). The plurality opinion by Chief Justice Burger was joined by Justices Stewart, Powell, and Stevens. Justices Blackmun, Marshall, and White concurred in the result on separate and conflicting grounds. Id. at 613, 619, 621. Justice Rehnquist dissented. Id. at 628.
  44. 438 U.S. at 604. Although under the Eighth and Fourteenth Amendments the state must bear the burden to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency. Walton v. Arizona, 497 U.S. 639, 650 (1990) (plurality). A fortiori, a statute may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise. Kansas v. Marsh, 548 U.S. 163, 173 (2006).
  45. Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion of Justice Stewart, joined by Justices Powell and Stevens). AccordRoberts v. Louisiana, 428 U.S. 325 (1976) (statute mandating death penalty for five categories of homicide constituting first-degree murder).
  46. Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (adopting Lockett); Sumner v. Shuman, 483 U.S. 66 (1987) (adopting Woodson). The majority in Eddings was composed of Justices Powell, Brennan, Marshall, Stevens, and O'Connor; Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. The Shuman majority was composed of Justices Blackmun, Brennan, Marshall, Powell, Stevens, and O'Connor; dissenting were Justices White and Scalia and Chief Justice Rehnquist. Woodson and the first Roberts v. Louisiana had earlier been followed in the second Roberts v. Louisiana, 431 U.S. 633 (1977), a per curiam opinion from which Chief Justice Burger, and Justices Blackmun, White, and Rehnquist dissented.
  47. Justice White, dissenting in Lockett from the Court's holding on consideration of mitigating factors, wrote that he greatly fear[ed] that the effect of the Court's decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that 'its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.' 438 U.S. at 623. More recently, Justice Scalia voiced similar misgivings. Shortly after introducing our doctrine requiring constraints on the sentencer's discretion to 'impose' the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer's discretion to 'decline to impose' it. This second doctrine—counter-doctrine would be a better word—has completely exploded whatever coherence the notion of 'guided discretion' once had. . . . In short, the practice which in Furman had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required. Walton v. Arizona, 497 U.S. 639, 661, 662 (1990) (concurring in the judgment). For a critique of these criticisms of Lockettsee Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147 (1991).
  48. Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality opinion of Justices Stewart, Powell, and Stevens) (quoting Furman v. Georgia, 408 U.S. 238, 402 (1972) (Chief Justice Burger dissenting)).
  49. Eddings v. Oklahoma, 455 U.S. 104, 110–11 (1982).
  50. Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing function may be served at the sentencing phase or at the guilt phase; the fact that an aggravating circumstance justifying capital punishment duplicates an element of the offense of first-degree murder does not render the procedure invalid. Lowenfield v. Phelps, 484 U.S. 231 (1988).
  51. Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)).
  52. Zant v. Stephens, 462 U.S. 862, 879 (1983).
  53. See, e.g.Johnson v. Texas, 509 U.S. 350 (1993) (consideration of youth as a mitigating factor may be limited to jury estimation of probability that defendant would commit future acts of violence).
  54. Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial court's use of invalid aggravating factor where appellate court fails to reweigh mitigating and aggravating factors).
  55. As such, the Court has opined that it is not the role of the Eighth Amendment to establish a special federal code of evidence governing the admissibility of evidence at capital sentencing proceedings. See Romano v. Oklahoma, 512 U.S. 1, 11–12 (1994). Instead, the test for a constitutional violation attributable to evidence improperly admitted at a capital sentencing proceeding is whether the evidence so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. Id. at 12. As a consequence, the Court found nothing constitutionally impermissible with a state having joint sentencing proceedings for two defendants whose underlying conviction arose from the same single chain of events. See Kansas v. Carr, 136 S. Ct. 633, 644–45 (2016) (rejecting the argument that joinder of two defendants was fundamentally unfair because evidence that one defendant unduly influenced another defendant's conduct may have infected the jury's decision making). Indeed, the Court approvingly noted that joint proceedings before a single jury for defendants that commit the same crimes are not only permissible but are often preferable in order to avoid the wanto[n] and freakis[h] imposition of the death sentence. See id. at 646 (citing Gregg v. Georgia, 428 U.S. 153, 206–07 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.)).
  56. See, e.g.Hitchcock v. Dugger, 481 U.S. 393 (1987) (instruction limiting jury to consideration of mitigating factors specifically enumerated in statute is invalid); Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that a sentencing jury must be permitted to consider the defendant's mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant's personal culpability, future dangerousness, and the reasonableness of the defendant's response to a victim's provocation.); Skipper v. South Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant's good conduct in jail denied defendant his Lockett right to introduce all mitigating evidence); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (holding that a sentencing jury must be permitted to consider the defendant's mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant's personal culpability, future dangerousness, and the reasonableness of the defendant's response to a victim's provocation); Brewer v. Quarterman, 550 U.S. 286 (2007) (same). But cf. Franklin v. Lynaugh, 487 U.S. 164 (1988) (consideration of defendant's character as revealed by jail behavior may be limited to the context of an assessment of future dangerousness).
  57. Neither Lockett nor Eddings establishes the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all. Barclay v. Florida, 463 U.S. 939, 961 n.2 (1983) (Justice Stevens concurring in judgment).
  58. Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990).
  59. 494 U.S. at 307.
  60. Boyde v. California, 494 U.S. 370 (1990). A court is not required give a jury instruction expressly directing the jury to consider mitigating circumstance, as long as the instruction actually given affords the jury the discretion to take such evidence into consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). In this vein, the Court has held that capital sentencing courts are not obliged to inform the jury affirmatively that mitigating circumstances lack the need for proof beyond a reasonable doubt. See Kansas v. Carr, 136 S. Ct. 633, 642–43 (2016) (noting that ambiguity in capital sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence). By the same token, a court did not offend the Constitution by directing the jury's attention to a specific paragraph of a constitutionally sufficient instruction in response to the jury's question about proper construction of mitigating circumstances. Weeks v. Angelone, 528 U.S. 225 (2000). Nor did a court offend the Constitution by instructing the jury to consider [a]ny other circumstance which extenuates the gravity of the crime, without specifying that such circumstance need not be a circumstance of the crime, but could include some likelihood of future good conduct. This was because the jurors had heard extensive forward-looking evidence, and it was improbable that they would believe themselves barred from considering it. Ayers v. Belmontes, 549 U.S. 7, 10, 15, 16 (2006).
  61. California v. Brown, 479 U.S. 538, 543 (1987).
  62. Mills v. Maryland, 486 U.S. 367 (1988)McKoy v. North Carolina, 494 U.S. 433 (1990)Compare Smith v. Spisak, 558 U.S. 139, 143–49 (2010) (distinguishing jury instructions in Mills from instructions directing each juror to independently assess any mitigating factors before jury as a whole balanced the weight of mitigating evidence against each aggravating factor, with unanimity required before balance in favor of an aggravating factor may be found).
  63. Simmons v. South Carolina, 512 U.S. 154 (1994)See also Lynch v. Arizona, 136 S. Ct. 1818, 1820 (2016) (holding that the possibility of clemency and the potential for future legislative reform does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express an intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36, 40 (2001) (holding that an amended South Carolina law still runs afoul of Simmons).
  64. 546 U.S. 212, 220 (2006). In some states, the only aggravating factors permitted to be considered by the sentencer [are] the specified eligibility factors. Id. at 217. These are known as weighing states; non-weighing states, by contrast, are those that permit the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors. Id. Prior to Brown v. Sanders, in weighing states, the Court deemed the sentencer's consideration of an invalid eligibility factor to require reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors). Id.
  65. Zant v. Stephens, 462 U.S. 862 (1983).
  66. Barclay v. Florida, 463 U.S. 939 (1983).
  67. In Eighth Amendment cases as in other contexts involving harmless constitutional error, the court must find that error was 'harmless beyond a reasonable doubt in that it did not contribute to the [sentence] obtained.' Sochor v. Florida, 504 U.S. 527, 540 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Thus, where psychiatric testimony was introduced regarding an invalid statutory aggravating circumstance, and where the defendant was not provided the assistance of an independent psychiatrist in order to develop rebuttal testimony, the lack of rebuttal testimony might have affected how the jury evaluated another aggravating factor. Consequently, the reviewing court erred in reinstating a death sentence based on this other valid aggravating factor. Tuggle v. Netherland, 516 U.S. 10 (1995).
  68. See Clemons v. Mississippi, 494 U.S. 738, 741 (1990) (authorizing appellate reassessment of a death sentence on an improper aggravating circumstance); see also McKinney v. Arizona, 140 S. Ct. 702, 706–07 (2020) (extending Clemons review so that a reassessment could occur when a trial court improperly ignored a mitigating circumstance).
  69. Johnson v. Mississippi, 486 U.S. 578 (1988).
  70. 546 U.S. 517, 523 (2006).
  71. 546 U.S. at 524, 526 (Court's emphasis deleted in part).
  72. 546 U.S. at 526.
  73. See Booth v. Maryland, 482 U.S. 496, 501–02 (1987)see also South Carolina v. Gathers, 490 U.S. 805, 811 (1989) (concluding that Booth extended to a prosecutor's statements about a victim's personal qualities).
  74. The Court has refrained from overturning Booth's holding that the admission of a victim's family members' characterizations and opinions about the underlying crime, the defendant, and the appropriate sentence violate the Eighth Amendment. See Bosse v. Oklahoma, 137 S. Ct. at 1 (2016). Instead, the Court has overruled Booth's central holding that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible at a capital sentencing hearing. See Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).
  75. See Payne, 501 U.S. at 817.
  76. Id. at 822.

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