The Eighth Amendment and the Death Penalty

The Eighth Amendment comprises one of the fundamental rights outlined in the Bill of Rights. It provides several important protections for people convicted of a crime. The most widely known part of the amendment is the protection against "cruel and unusual punishment."

Unsurprisingly, this is the constitutional language often discussed when it comes to the death penalty in America. Over the years, the Supreme Court has had to decide whether the Eighth Amendment bars or limits the use of the death penalty. And if so, to what extent?

Frequently Asked Questions

Below, we answer a few frequently asked questions regarding the Eighth Amendment and the death penalty. Later in the article, we discuss important case law on this topic.

Does the death penalty violate the Eighth 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 with no discretion are cruel and unusual.

The jury or trial judge generally has discretion to consider the individual defendant and their crime. The Supreme Court has also identified certain types of cases where the death penalty rises to the level of cruel and unusual punishment. For example, in  Atkins v. Virginia, the court held that it was unconstitutional to execute defendants who were mentally disabled.

Can a teenager get the death penalty?

No. In 2005, the Supreme Court held in Roper v. Simmons that juvenile offenders could not be executed.

What crimes qualify for the death penalty?

At the federal level, only a few crimes qualify for the death penalty, including acts of terrorism resulting in death and murder in connection to drug trafficking.

States can generally decide what punishments are appropriate for a given crime. But the U.S. Supreme Court will sometimes weigh in. For example, in Kennedy v. Louisiana (2008), the Supreme Court held that the death penalty was disproportional in a case involving the rape of a child.

What the Eighth Amendment Says

The Eighth Amendment of the U.S. Constitution stands as a pillar of protection. It protects us against excessive punishment. It also protects the rights of individuals facing legal proceedings. Its language encapsulates fundamental principles of fairness in the realm of criminal justice.

The Eighth Amendment states:

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

At its core, this clause articulates three distinct protections:

• Protection against excessive bail: Bail allows defendants to be released from pretrial detention by paying a monetary sum. However, bail must not be set at an unreasonably high amount. If it is, it denies individuals their right to liberty pending trial. Excessive bail can undermine the presumption of innocence and disproportionately affect those unable to afford bail.
• Safeguard against excessive fines: Fines cannot be excessive as a form of punishment. They should be proportional to the offense committed and to the individual's financial means. Excessive fines can result in unjust economic burdens, especially for marginalized communities. They may serve as a punitive measure disproportionate to the severity of the offense.
• Prohibition of cruel and unusual punishments: This provision affirms the dignity of every individual. It prohibits excessively harsh punishments that offend civilized standards of decency and humanity.

Eighth Amendment Death Penalty Cases

Several U.S. Supreme Court cases have profoundly influenced the application of the Eighth Amendment. Examining these cases sheds light on constitutional protections against cruel and unusual punishment and the death penalty.

Trop v. Dulles

Decided in 1958, Trop v. Dulles addressed the constitutionality of stripping a U.S. national of citizenship for wartime desertion and solidified the idea of proportionality in criminal punishments.

Albert Trop, a U.S. Air Force officer, deserted his post during World War II and was subsequently court-martialed. As punishment, he faced the revocation of his citizenship, a penalty authorized by the Nationality Act of 1940. Trop challenged this punishment. He argued that it violated the Eighth Amendment.

Trop's legal team contended that stripping him of his citizenship amounted to cruel and unusual punishment. They argued that such a penalty exceeded the bounds of decency and fairness established by the Eighth Amendment.

The Supreme Court ruled in favor of Trop. They held that the Eighth Amendment prohibited revoking citizenship as punishment for desertion.

Chief Justice Earl Warren wrote for the majority. He emphasized that the Eighth Amendment should “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

The Court reaffirmed this idea in Coker v. Georgia, where it held that the following factors should be considered in death penalty cases:

• The offense's gravity and the stringency of the penalty
• How the jurisdiction punishes its other criminals
• How other jurisdictions punish the same crime

McGautha v. California

McGautha v. California (1971) addressed whether the death penalty could be imposed based on the discretion of the jury without specific guidelines.

The case centered on William McGautha, a death row inmate convicted of murder in California. McGautha challenged the constitutionality of his death sentence. His legal team argued that the discretion granted to the jury in capital cases violated his rights under the Eighth Amendment.

McGautha's lawyers contended that the lack of specific guidelines for imposing the death penalty was a significant problem for criminal defendants. They argued that it allowed for arbitrary decisions by the jury.

The result was a closely divided decision. The Supreme Court upheld the constitutionality of jury discretion in death penalty cases. The Court ruled that the death penalty itself was not inherently cruel and unusual. However, procedural safeguards were necessary to prevent discriminatory application.

McGautha v. California has significant implications for the application of the death penalty in the United States. This decision affirmed the constitutionality of capital punishment. It also underscored the importance of procedural safeguards to ensure fairness.

The ruling in McGautha laid the groundwork for future challenges to the death penalty based on the need for specific guidelines in capital sentencing. Subsequent cases, such as Furman v. Georgia, further examined the issue of procedural fairness.

Furman v. Georgia

In 1972, Furman v. Georgia sparked a reevaluation of the death penalty. It challenged the application of capital punishment.

The case originated from the separate trials of three defendants. Their names were William Henry Furman, Lucious Jackson, and Elmer Branch. Each had been convicted of murder and sentenced to death in the state of Georgia.

William Furman, an African American man, was involved in a botched burglary in Savannah, Georgia. During the attempted burglary, Furman stumbled upon the homeowner, who awoke and attempted to flee. In the ensuing chaos, Furman's gun accidentally discharged, resulting in the homeowner's death.

Furman's trial and conviction raised questions about the consistency of death penalty sentencing. In Georgia, as in many other states at the time, the death penalty was inconsistently applied. It was often disproportionately applied to minorities and individuals from disadvantaged backgrounds.

Furman's legal team challenged the constitutionality of his death sentence. They argued that the arbitrary manner in which the death penalty was imposed violated principles of fairness. Furman's case highlighted the disparities in sentencing outcomes based on race, socioeconomic status, and geography.

In a landmark decision, the Supreme Court ruled 5-4 in Furman's favor. The Court effectively struck down Georgia's death penalty statute. It deemed capital punishment unconstitutional, as was how it was being administered at the time.

However, note that the decision in Furman was not based on a fundamental opposition to the death penalty itself. Instead, the majority opinion, authored by Justice William Brennan, cited the arbitrary and discriminatory application of the death penalty as a violation of the Eighth Amendment.

Furman v. Georgia sent shockwaves through the legal landscape. It prompted a nationwide moratorium on executions and efforts to reform capital punishment laws.

While Furman did not abolish capital punishment, it forced states to confront systemic issues of equity in sentencing. In response to the Court's ruling, many states undertook revisions to their death penalty statutes.

States Revise Death Penalty Statutes

Furman v. Georgia effectively suspended the death penalty nationwide. Following the decision, states faced the task of reforming their capital punishment laws. The ruling in Furman highlighted systemic issues of discrimination in the administration of the death penalty. This prompted a wave of legislative action aimed at addressing these concerns.

Many states embarked on efforts to overhaul their death penalty statutes. These legislative initiatives sought to:

• Introduce greater procedural safeguards
• Mitigate disparities in sentencing
• Ensure that capital punishment was administered in a manner consistent with constitutional principles

One notable response came from Georgia, the state at the center of the Furman case. In 1973, Georgia enacted a new death penalty statute designed to address the deficiencies identified by the Court.

The revised statute introduced a bifurcated trial process. Guilt and sentencing phases would be conducted separately. This procedural change aimed to provide greater individualized consideration of defendants and their circumstances during sentencing.

Other states followed suit. They enacted similar reforms to safeguard against the arbitrary imposition of the death penalty. These reforms included provisions for the consideration of mitigating factors such as mental health during sentencing hearings.

Some states introduced mandatory appellate review processes for all death penalty cases to ensure that convictions and sentences were subject to rigorous scrutiny.

Despite efforts to address the concerns raised by Furman, debates over the death penalty persisted. While some advocated for the abolition of capital punishment, others argued for it as a necessary tool of criminal justice. Discussions ensued about the morality, efficacy, and fairness of the death penalty.

In Gregg v. Georgia, the Supreme Court refused to expand Furman and outright ban the death penalty.

Is the Death Penalty Discriminatory?

The question of whether the death penalty is applied in a discriminatory manner has long been a subject of debate and legal scrutiny. McCleskey v. Kemp is a landmark Supreme Court case that addressed issues of discrimination in the administration of the death penalty.

Decided in 1987, the case centered on Warren McCleskey, an African American man convicted of murder in Georgia. McCleskey's team presented evidence demonstrating racial disparities in Georgia's death penalty.

McCleskey's lawyers presented a groundbreaking study known as the Baldus study. The study analyzed Georgia murder cases and found racial disparities in the imposition of the death penalty. It found that defendants charged with killing white victims were more likely to receive the death penalty than those whose victims were Black.

McCleskey's legal team argued that these disparities violated his constitutional rights. They highlighted his rights under the Eighth and Fourteenth Amendments. They contended that Georgia's capital punishment system was tainted by racial bias. It thus constituted cruel and unusual punishment and denied McCleskey equal protection under the law.

The Supreme Court ruled against McCleskey in a 5-4 decision. Justice Lewis Powell acknowledged the statistical evidence of racial disparities. However, the majority concluded that McCleskey had not proven intentional discrimination in his individual case. Powell asserted that statistical disparities alone were insufficient to establish a constitutional violation.

The decision placed a high burden of proof on defendants seeking to challenge the death penalty on grounds of racial bias. It signaled to lower courts that statistical evidence alone would not be enough to overturn death sentences based on claims of systemic discrimination.

Critics of the decision argue that it sanctioned the continued racial disparities inherent in the criminal justice system. They contend that the decision undermined the promise of equal protection under the law and perpetuated systemic injustice.

Advocates continue to raise concerns about racial, socioeconomic, and geographic disparities in the application of capital punishment. These concerns reflect broader debates about the fairness and equity of the death penalty in American society.

Lethal Injection Protocols

In 2008, the Supreme Court rendered a significant decision in Baze v. Rees regarding the constitutionality of lethal injection as a method of execution. The case originated in Kentucky. Two death row inmates, Ralph Baze and Thomas Bowling, challenged the state's lethal injection protocol. They alleged that it was cruel and unusual punishment.

The central argument was that Kentucky's lethal injection procedure posed a risk of pain and suffering. The administration of lethal injection could result in severe pain if the drugs were not properly administered. Consequently, they argued that the state's execution protocol violated the Eighth Amendment.

The Supreme Court held that Kentucky's lethal injection protocol was not cruel and unusual punishment. The Court established a standard for evaluating the constitutionality of an execution method. The standard requires that the method must not pose a substantial risk of wanton and unnecessary pain.

The Role of the Jury in Death Penalty Cases

The imposition of the death penalty often rests in the hands of a jury, making the role of jurors in capital cases critical. They determine the guilt or innocence of the defendant. In some cases, they must decide whether the ultimate punishment should be imposed.

The jury's responsibility is to:

• Assess the facts of the case
• Consider complex legal and moral questions surrounding capital punishment

In death penalty cases, the jury plays a multifaceted role. They shape the outcome through deliberation and decision-making. The Eighth Amendment requires that the jury's discretion be guided by clear and consistent standards. This ensures fairness and prevents arbitrary or discriminatory application of the death penalty.

Lockett v. Ohio

Decided by the Supreme Court in 1978, Lockett v. Ohio addressed the issue of jury discretion in capital sentencing. The case involved the appeal of Sandra Lockett, who was convicted of murder and sentenced to death in Ohio. Lockett's legal team challenged the constitutionality of Ohio's death penalty statute, which limited the consideration of mitigating factors during sentencing.

The Supreme Court ruled in favor of Lockett, holding that the Eighth and Fourteenth Amendments required that juries in capital cases be permitted to consider all mitigating factors relevant to the defendant's background and character.

The Court emphasized the need for individualized sentencing in death penalty cases, recognizing that each defendant is unique and deserving of personalized consideration. It affirmed the principle that the death penalty should be reserved for the most culpable offenders and that mitigating factors should be weighed alongside aggravating factors to ensure a fair and just outcome.

Brown v. Sanders

Decided in 2006, Brown v. Sanders further clarified the jury's role in capital sentencing. The case involved the appeal of Cedric Brown, who had been sentenced to death in California for his role in a murder. Brown's legal team argued that the jury instructions provided during the penalty phase of his trial were unconstitutionally vague.

The Supreme Court ruled in favor of Brown. They held that the jury instructions in his case failed to adequately guide the jury's consideration of mitigating evidence. The Court emphasized the importance of clear and specific instructions to ensure that juries in capital cases fully understand their role and responsibilities.

Oregon v. Guzek

Another opinion from 2006, Oregon v. Guzek sheds light on how evidentiary rules intersect with the jury's function in capital cases.

The case revolved around Randy Lee Guzek, who faced a death sentence for a triple homicide in Oregon. During his trial, Guzek sought to introduce testimony from witnesses who had recanted their previous statements. The trial court declined Guzek's request. They cited Oregon's stringent rules on newly discovered evidence.

Guzek argued on appeal that excluding this testimony violated his constitutional rights. He emphasized his right to present a complete defense and receive a fair trial. The Supreme Court, in a unanimous decision, sided with Oregon. The Court affirmed the trial court's ruling to exclude the recantation testimony.

Justice David Souter emphasized the deference owed to state evidentiary rules. He highlighted the importance of maintaining orderly and fair criminal proceedings. Yes, defendants have the right to present evidence. However, this right is subject to reasonable limitations established by state law.

The role of the jury in death penalty cases is pivotal. Juries are entrusted with the responsibility of determining the fate of defendants facing the ultimate punishment. Their decisions must be guided by principles of fairness, impartiality, and adherence to the law.

As the legal landscape evolves, ensuring that juries are properly instructed and empowered to consider all relevant factors remains essential to upholding the integrity of the capital punishment system.