When Is the Death Penalty Considered Cruel and Unusual Punishment?

One of the biggest sticking points in Eighth Amendment jurisprudence is, unsurprisingly, the death penalty. The Eighth Amendment prohibits "cruel and unusual punishment," but whether to employ the death penalty has been left up to the states. In the middle is the Supreme Court, which has had to decide under what circumstances states that do allow for the death penalty cannot use it.

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Defendants With Cognitive Disabilities

Can a Minor Get the Death Penalty?

Non-Homicide Offenses

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

Defendants With Cognitive Disabilities

The Court has grappled with several cases involving the 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 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. 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 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.3

The Court in Panetti v. Quarterman clarified when a prisoner's current mental state can bar his execution under the rule of Ford.4 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.5 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.6

Twelve years after Panetti, the Court further clarified two aspects of the Ford-Panetti inquiry in Madison v. Alabama.7 First, on behalf of the Court, Justice Kagan concluded that a prisoner challenging his execution on the ground of a mental disorder cannot prevail merely because he cannot remember committing his crime.8 Recognizing that a prisoner who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence, the Court declined to impose a categorical rule prohibiting the execution of such a prisoner.9 Instead, Justice Kagan viewed a prisoner's memory loss as a factor that a court may consider in determining whether he has a rational understanding of the reason for his execution.10 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.11 For the Court, the Ford-Panetti inquiry is not so much concerned with the precise cause for whether a prisoner can rationally understand why the state is seeking an execution and is instead focused on whether the prisoner's mental condition has the effect of preventing such an understanding.12

In 1989, when first confronted with the issue of whether the execution of persons with intellectual disabilities is constitutional, the Court found insufficient evidence of a national consensus against executing such people.13 In 2002, however, the Court determined in Atkins v. Virginia14 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.15 In 1989, only two states and the Federal Government prohibited the execution of persons with intellectual disabilities while allowing executions generally. By 2002, an additional 16 states had prohibited the execution of persons with intellectual disabilities, and no states had reinstated the power. 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.16 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 mentally offenders with intellectual disabilities. Retribution necessarily depends on the culpability of the offender, yet intellectual disability reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet the same cognitive and behavioral impairments that make these defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information.17

In Atkins, the Court wrote, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences."18 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.19 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.20

In Hall v. Florida,21 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.22 The Court invalidated this rigid standard, observing that [i]ntellectual disability is a condition, not a number.23 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.24 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.25

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.26

First, Justice 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.27

Second, the Moore 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;28
  2. Dismissing several traumatic experiences from the petitioner's past;29 and
  3. Requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue.30

Third, the 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.31

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.32 The Supreme Court instead held that lay stereotypes (and not established professional standards) on an individual's intellectual capabilities should spark skepticism.33 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.34

Can a Minor Get the 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 16 but upheld other statutes authorizing capital punishment for crimes committed by 16- and 17-year-olds.

Important to the 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.35 Although four Justices favored a flat ruling that the Eighth Amendment barred the execution of anyone younger than 16 at the time of his offense, concurring Justice 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 O'Connor again provided the decisive vote when the Court in Stanford v. Kentucky held that the Eighth Amendment does not categorically prohibit the imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri36 directly specified a minimum age for the death penalty. To Justice O'Connor, however, the critical difference was that there clearly was no national consensus forbidding the imposition of capital punishment on 16- or 17-year-old murderers, whereas there was such a consensus against execution of 15-year-olds.37

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 the execution of juvenile offenders over age 15,38 less than three years later the Court held that such a consensus had developed.

The Court's decision in Roper v. Simmons39 drew parallels with Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age 16 or 17 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, 30 states prohibited the execution of juveniles: 12 that prohibited the death penalty altogether, and 18 that excluded juveniles from its reach. This meant that 20 states did not prohibit the 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 10 years immediately preceding Roper. Although the pace of change was slower than had been the case with the execution of persons with intellectual disabilities, the consistent direction of change toward abolition was deemed more important.40

As in Atkins, the Court in Roper relied on its own independent judgment in addition to its finding of consensus among the states.41 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.42 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.43 Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for the imposition of the death penalty. The majority preferred a categorical rule over the 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."44

The Roper Court found confirmation for its holding in the overwhelming weight of international opinion against the juvenile death penalty.45 Although not controlling, the rejection of the juvenile death penalty by other nations and by international authorities as instructive, as it had been in earlier cases, for Eighth Amendment interpretation.46

Non-Homicide Offenses

The Court has also considered whether, based on the nature of the underlying offense, the imposition of capital punishment may be inappropriate in particular cases. The 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 draws its meaning from the evolving standards of decency that mark the progress of a maturing society.47 However, 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."48

In Coker v. Georgia,49 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,50 the Court held that this was true even when the rape victim was a child.51 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.

Under Gregg, 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 the 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.52 Although the Court thought that the death penalty for rape passed the first test (it may measurably serve the legitimate ends of punishment),53 it found that it failed the second test (proportionality). 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.54 In Kennedy v. Louisiana, the Court found that both evolving standards of decency and a national consensus preclude the death penalty for a person who rapes a child.55

Applying the Coker analysis, the Court ruled in Enmund v. Florida56 that death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or intend that anyone be killed. Although a few more states imposed capital punishment in felony murder cases than had imposed it for rape, nonetheless the weight was heavily against the practice, and the evidence of jury decisions and other indicia of a modern consensus also opposed the death penalty in such circumstances. Moreover, the Court determined that death was a disproportionate sentence for one who neither took life nor intended to do so. Because the death penalty is likely to deter only when murder is the result of premeditation and deliberation, and because the justification of retribution depends upon the degree of the defendant's culpability, the imposition of death upon one who participates in a crime in which a victim is murdered by one of his confederates and not as a result of his own intention serves neither of the purposes underlying the penalty.57

In Tison v. Arizona, however, the Court eased the intent to kill requirement, holding that, in keeping with an apparent consensus among the states, major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.58

More on the Eighth Amendment

Footnotes

  1. 477 U.S. 399 (1986).
  2. There was an opinion of the Court only on the first issue: that the Eighth Amendment creates a right not to be executed while suffering severe mental illness. The Court's opinion did not attempt to define the mental illnesses that make a person ineligible for the death penalty; Justice Powell's concurring opinion would have held the prohibition applies only for those who are unaware of the punishment they are about to suffer and why they are to suffer it. 477 U.S. at 422.
  3. There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that the ascertainment of a prisoner's sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding. 477 U.S. at 411–12. Concurring Justice Powell thought that due process might be met by a proceeding far less formal than a trial, that the state should provide an impartial officer or board that can receive evidence and argument from the prisoner's counsel. Id. at 427. Concurring Justice O'Connor, joined by Justice White, emphasized Florida's denial of the opportunity to be heard and did not express an opinion on whether the state could designate the governor as a decisionmaker. Thus Justice Powell's opinion, requiring the opportunity to be heard before an impartial officer or board, set forth the Court's holding.
  4. 551 U.S. 930 (2007).
  5. Id. at 958.
  6. Id. at 958–60. In a separate part of the opinion, the Court held that the Due Process Clause of the Fourteenth Amendment required the state to provide the petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts on the petitioner's sanity. Id. at 951.
  7. See 139 S. Ct. 718 (2019).
  8. Id. at 726–27.
  9. Id. at 727.
  10. Id. In so holding, the Court noted that evidence that a prisoner has difficulty preserving any memories may contribute to a finding that the prisoner may not rationally understand the reasons for his death sentence. Id.
  11. Id. at 728.
  12. Id. at 728–29 ([I]f and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another . . . is to blame.).
  13. Penry v. Lynaugh, 492 U.S. 302, 335 (1989). Although unwilling to conclude that execution of a person with an intellectual disability is categorically prohibited by the Eighth Amendment, id. at 335, the Court noted that, because of the requirement of individualized consideration of culpability, a defendant with such a disability is entitled to an instruction that the jury may consider and give mitigating effect to evidence of intellectual disability or a background of abuse. Id. at 328. See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should be admissible for mitigating purposes without being screened on basis of severity of disability).
  14. 536 U.S. 304 (2002). Atkins was 6-3 decision by Justice Stevens.
  15. 536 U.S. at 314, 316.
  16. 536 U.S. at 315.
  17. 536 U.S. at 320. The Court also noted that reduced capacity both increases the risk of false confessions and reduces a defendant's ability to assist counsel in making a persuasive showing of mitigation.
  18. 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986).
  19. 546 U.S. 6, 7 (2005) (per curiam).
  20. 546 U.S. at 7.
  21. 572 U.S. 701 (2014).
  22. Fla. Stat. § 921.137.
  23. Hall, 572 U.S. at 701, 723
  24. Id. Of those states that allow for the death penalty, a number of them do not have strict cut-offs for IQ scores. See, e.g.Cal. Penal Code § 1376La. Code Crim. Proc. Ann. art. 905.5.1Nev. Rev. Stat. § 174.098Utah Code Ann. § 77–15a–102. Similarly, the U.S. Code does not set a strict IQ cutoff. See 18 U.S.C. § 3596(c).
  25. This range, referred to as a standard error or measurement or SEM, is used by many states in evaluating the existence of an intellectual disability. Hall, 572 U.S. 701, 723 (2014)
  26. See 137 S. Ct. 1039, 1044 (2017) [hereinafter Moore I].
  27. Id. at 1049.
  28. Id. at 1050 ([T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits.); see also id. at 1050 (Clinicians, however, caution against reliance on adaptive strengths developed in a controlled setting, as prison surely is.) (internal citations and quotations omitted).
  29. Id. at 1051 (Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination.).
  30. Id. at 1051 (The existence of a personality disorder or mental health issue, in short, is not evidence that a person does not also have intellectual disability.) (internal citations and quotations omitted).
  31. Id. at 1051. In so concluding, the Court noted that [m]ild levels of intellectual disability . . . nevertheless remain intellectual disabilities, and States may not execute anyone in the entire category of intellectually disabled offenders. Id. (internal citations and quotations omitted).
  32. See Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
  33. See Moore I, 137 S. Ct. at 1052.
  34. Id. at 1052–53. Two years after Moore I, the case returned to the High Court, where, in a per curiam opinion, the Court again reversed the Court of Criminal Appeals of Texas. See Moore v. Texas, 139 S. Ct. 666, 667 (2019) (per curiam) [hereinafter Moore II]. That court had concluded that the prisoner did not have an intellectual disability and was, therefore, eligible for the death penalty. Id. Finding that the lower court's opinion repeat[ed] the analysis the Supreme Court previously found wanting in its 2017 opinion, Moore II criticized the Texas court's (1) reliance on the petitioner's adaptive strengths in lieu of his adaptive deficits; (2) emphasis on the petitioner's adaptive improvements made in prison; (3) tendency to consider the petitioner's social behavior to be caused by emotional problems, instead of his general mental abilities; and (4) continued reliance on the Briseno case the Court had previously criticized in Moore IId. at 670–72. Ultimately, the Court concluded that the record from the trial court demonstrated that the petitioner was a person with intellectual disability, reversing the lower court's judgment and remanding the case. Id. at 672.
  35. Thompson v. Oklahoma, 487 U.S. 815 (1988).
  36. Wilkins v. Missouri was decided along with Stanford.
  37. Compare Thompson, 487 U.S. at 849 (O'Connor, J., concurring) (two-thirds of all state legislatures had concluded that no one should be executed for a crime committed at age 15, and no state had unequivocally endorsed a lower age limit) with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment decline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-old offenders).
  38. 536 U.S. at 314, n.18.
  39. 543 U.S. 551 (2005). The case was decided by a 5-4 vote. Justice Kennedy wrote the Court's opinion and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O'Connor, who had joined the Court's 6-3 majority in Atkins, wrote a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.
  40. Dissenting in Roper, Justice O'Connor disputed the consistency of the trend, pointing out that since Stanford two states had passed laws reaffirming the permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.
  41. 543 U.S. at 564. The Stanford Court had been split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia's plurality would have focused almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for the application of capital punishment. 492 U.S. at 377 (A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.). The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant's culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles. 492 U.S. at 394–96. The Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own evaluation into play along with their analysis of consensus on the issue of executing persons with intellectual disabilities.
  42. 543 U.S. at 569, 570.
  43. 543 U.S. at 570.
  44. 543 U.S. at 572–573. Strongly disagreeing, Justice O'Connor wrote that an especially depraved juvenile offender may . . . be just as culpable as many adult offenders considered bad enough to deserve the death penalty. . . . [E]specially for 17-year-olds . . . the relevant differences between 'adults' and 'juveniles' appear to be a matter of degree, rather than of kind. Id. at 600.
  45. 543 U.S. at 578 (noting the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty, id. at 575).
  46. 543 U.S. at 577, 578. Citing as precedent Trop v. Dulles, 356 U.S. 86, 102–03 (1958) (plurality opinion); Atkins, 536 U.S. at 317 n.21; Enmund v. Florida, 458 U.S. 782, 796–97, n.22 (1982)Thompson v. Oklahoma, 487 U.S. 815, 830–31 & n.31 (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).
  47. Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (citations omitted).
  48. 128 S. Ct. at 2675 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501 U.S. 957, 990 (1991)).
  49. 433 U.S. 584 (1977). Justice White's opinion was joined only by Justices Stewart, Blackmun, and Stevens. Justices Brennan and Marshall concurred on their view that the death penalty is per se invalid, id. at 600, and Justice Powell concurred on a more limited basis than Justice White's opinion. Id. at 601. Chief Justice Burger and Justice Rehnquist dissented. Id. at 604.
  50. 128 S. Ct. 2641 (2008). Justice Kennedy's opinion was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Scalia and Thomas joined.
  51. The Court noted, however, that [o]ur concern here is limited to crimes against individual persons [where a victim's life is not taken]. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. 128 S. Ct. at 2659.
  52. 433 U.S. at 592.
  53. 433 U.S. at 593 n.4.
  54. 433 U.S. at 598.
  55. 128 S. Ct. 2641, 2649, 2653 (2008). The Court noted that, since Gregg, it had spent more than 32 years articulating limiting factors that channel the jury's discretion to avoid the death penalty's arbitrary imposition in the case of capital murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure. Id. at 2661.
  56. 458 U.S. 782 (1982). Justice White wrote the opinion of the Court and was joined by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O'Connor, with Justices Powell and Rehnquist and Chief Justice Burger, dissented. Id. at 801. AccordCabana v. Bullock, 474 U.S. 376 (1986) (also holding that the proper remedy in a habeas case is to remand for state court determination as to whether Enmund findings have been made).
  57. Justice O'Connor thought the evidence of contemporary standards did not support a finding that capital punishment was not appropriate in felony murder situations. 458 U.S. at 816–23. She also objected to finding the penalty disproportionate, first because of the degree of participation of the defendant in the underlying crime, id. at 823–26, but also because the Court appeared to be constitutionalizing a standard of intent required under state law.
  58. 481 U.S. 137, 158 (1987). The decision was 5-4. Justice O'Connor's opinion for the Court viewed a narrow focus on intent to kill as a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers, id. at 157, and concluded that reckless disregard for human life may be held to be implicit in knowingly engaging in criminal activities known to carry a grave risk of death. Id.
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