1563

EIGHTH AMENDMENT 

FURTHER GUARANTEES IN CRIMINAL CASES 

CONTENTS

Page

Excessive Bail ............................................................................................................................ 1565 

Excessive Fines .......................................................................................................................... 1569 

Cruel and Unusual Punishments ............................................................................................. 1570

Style of Interpretation ........................................................................................................ 1571 

Application and Scope ........................................................................................................ 1572

Capital Punishment ........................................................................................................... 1573

General Validity and Guiding Principals .................................................................. 1575 

Implementation of Procedural Requirements ........................................................... 1580 

Limitations on Capital Punishment: Proportionality ............................................... 1587 

Limitations on Capital Punishment: Diminished Capacity ..................................... 1589 

Limitations on Capital Punishment: Equality of Application ................................. 1592 

Limitations on Habeas Corpus Review of Capital Sentences .................................. 1593 

Proportionality .................................................................................................................... 1597 

Prisons and Punishment .................................................................................................... 1601

Limitation of the Clause to Criminal Punishments ........................................................ 1603 

1565

1Stack v. Boyle, 342 U.S. 1, 4 (1951). Note that in Bell v. Wolfish, 441 U.S. 520, 

533 (1979), the Court enunciated a narrower view of the presumption of innocence, 

describing it as ‘‘a doctrine that allocates the burden of proof in criminal trials,’’ and 

denying that it has any ‘‘application to a determination of the rights of a pretrial 

detainee during confinement before his trial has even begun.’’ 2 Carlson v. Landon, 342 U.S. 524, 545 (1952). Justice Black in dissent accused 

the Court of reducing the provision ‘‘below the level of a pious admonition’’ by saying in effect that ‘‘the Amendment does no more than protect a right to bail which 

Congress can grant and which Congress can take away.’’ Id. at 556. 3The only recorded comment of a Member of Congress during debate on adoption of the ‘‘excessive bail’’ provision was that of Mr. Livermore. ‘‘The clause seems 

to express a great deal of humanity, on which account I have no objection to it; but 

as it seems to have no meaning in it, I do not think it necessary. What is meant 

by the terms excessive bail? Who are to be judges?’’ 1 ANNALS OF CONGRESS 754

(1789). 4Still the best and most comprehensive treatment is Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REV. 959, 965–89 (1965), reprinted in C.

FOOTE, STUDIES ON BAIL 181, 187–211 (1966). 5 3 Edw. 1, ch. 12. 

FURTHER GUARANTEES IN CRIMINAL CASES 

EIGHTH AMENDMENT 

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

EXCESSIVE BAIL 

‘‘This traditional right to freedom before conviction permits the 

unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. ‘. . . Unless this right to 

bail before trial is preserved, the presumption of innocence, secured 

only after centuries of struggle, would lose its meaning.’’ 1 ‘‘The bail 

clause was lifted with slight changes from the English Bill of 

Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail 

shall not be excessive in those cases where it is proper to grant 

bail. When this clause was carried over into our Bill of Rights, 

nothing was said that indicated any different concept.’’ 2 These two 

contrasting views of the ‘‘excessive bail’’ provision, uttered by the 

Court in the same Term, reflect the ambiguity inherent in the 

phrase and the absence of evidence regarding the intent of those 

who drafted and who ratified the Eighth Amendment. 3

The history of the bail controversy in England is crucial to understanding why the ambiguity exists. 4 The Statute of Westminster the First of 1275 5 set forth a detailed enumeration of those 

offenses which were bailable and those which were not, and, 

1566 AMENDMENT 8—PUNISHMENT FOR CRIME 

6 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 233–43 (1833). 

The statute is summarized at pp. 234–35. 7 3 How. St. Tr. 1 (1627). 

8 3 Charles 1, ch. 1. Debate on the Petition, as precipitated by Darnel’s Case, 

is reported in 3 How. St. Tr. 59 (1628). Coke especially tied the requirement that 

imprisonment be pursuant to a lawful cause reportable on habeas corpus to effectuation of the right to bail. Id. at 69. 9 Jenkes’ Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676). 

10 31 Charles 2, ch. 2. The text is in 2 DOCUMENTS ON FUNDAMENTAL

HUMAN RIGHTS 327–340 (Z. Chafee ed., 1951). 11 I W. & M. 2, ch. 2, clause 10. 12 7 F. Thorpe, The Federal and State Constitutions, H. R. DOC. NO. 357, 59TH

CONG., 2D SESS. 3813 (1909). ‘‘Sec. 9. That excessive bail ought not to be required, 

nor excessive fines imposed, nor cruel and unusual punishments inflicted.’’ 13 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE CONSTITUTION 658 (2d ed. 1836). 14 1 ANNALS OF CONGRESS 438 (1789). 

though supplemented by later statutes, it served for something like 

five-and-a-half centuries as the basic authority. 6 Darnel’s Case, 7 in

which the judges permitted the continued imprisonment of persons 

without bail merely upon the order of the King, was one of the 

moving factors in the enactment of the Petition of Right in 1628. 8

The Petition cited Magna Carta as proscribing the kind of detention that was permitted in Darnel’s Case. The right to bail was 

again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented, 9

and Parliament reacted by enacting the Habeas Corpus Act of 

1679, 10 which established procedures for effectuating release from 

imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so 

high it could not be met, and Parliament responded by including 

in the Bill of Rights of 1689 11 a provision ‘‘[t]hat excessive bail 

ought not to be required.’’ This language, along with essentially the 

rest of the present Eighth Amendment, was included within the 

Virginia Declaration of Rights, 12 was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state 

ratifying convention, 13 and was introduced verbatim by Madison in 

the House of Representatives. 14

Thus, in England the right to bail generally was conferred by 

the basic 1275 statute, as supplemented, the procedure for assuring 

access to the right was conferred by the Habeas Corpus Act of 

1679, and protection against abridgement through the fixing of an 

excessive bail was conferred by the Bill of Rights of 1689. In the 

United States, the Constitution protected habeas corpus in Article 

1, § 9, but did not confer a right to bail. The question is, therefore, 

whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right 

AMENDMENT 8—PUNISHMENT FOR CRIME 1567

15 ‘‘No mans person shall be restrained or imprisoned by any Authority what so 

ever, before the law hath sentenced him thereto, If he can put in sufficient securtie, 

bayle, or mainprise, for his appearance, and good behavior in the meane time, 

unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases 

where some expresse act of Court doth allow it.’’ Reprinted in I DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 79, 82 (Z. Chafee ed., 1951). 16 ‘‘That all prisoners shall be bailable by sufficient sureties, unless for capital 

offences, where the proof is evident, or the presumption great.’’ 5 F. Thorpe, The

Federal and State Constitutions, H. DOC. NO. 357, 59TH Congress, 2d Sess. 3061 

(1909) (Pennsylvania, 1682). The 1776 Pennsylvania constitution contained the 

same clause in section 28, and in section 29 was a clause guaranteeing against excessive bail. Id. at 3089. 17 ‘‘All persons shall be bailable, unless for capital offences, where the proof 

shall be evident, or the presumption great. All fines shall be moderate; and no cruel 

or unusual punishments shall be inflicted.’’ Art. II, 32 JOURNALS OF THE CONTINENTAL CONGRESS 334 (1787), reprinted in 1 Stat. 50 n. 18 ‘‘And upon all arrests in criminal cases, bail shall be admitted, except where 

the punishment may be death, in which case it shall not be admitted but by the 

supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion herein....’’ 1 Stat. 91 § 33 (1789). 19 Congress first provided for pretrial detention without bail of certain persons 

and certain classes of persons in the District of Columbia. D.C. Code, §§ 23–1321 

et seq., held constitutional in United States v. Edwards, 430 A.2d 1321 (D.C. App. 

1981), cert. denied, 455 U.S. 1022 (1982). The law applies only to persons charged 

with violating statutes applicable exclusively in the District of Columbia, United 

States v. Thompson, 452 F.2d 1333 (D.C. Cir. 1971), cert. denied, 405 U.S. 998 

(1978), while in other federal courts, the Bail Reform Act of 1966, as amended, applies. 80 Stat. 214, 18 U.S.C. §§ 3141–56. Amendments contained in the Bail Reform 

Act of 1984 added general preventive detention authority. See 18 U.S.C. § 3142(d) 

and (e). Those amendments authorized pretrial detention for persons charged with 

to bail, or whether the phrase ‘‘excessive bail’’ was meant to be a 

shorthand expression of both rights. 

Compounding the ambiguity is a distinctive trend in the 

United States which had its origin in a provision of the Massachusetts Body of Liberties of 1641, 15 guaranteeing bail to every accused person except those charged with a capital crime or contempt 

in open court. Copied in several state constitutions, 16 this guarantee was contained in the Northwest Ordinance in 1787, 17 along

with a guarantee of moderate fines and against cruel and unusual 

punishments, and was inserted in the Judiciary Act of 1789, 18 enacted contemporaneously with the passage through Congress of the 

Bill of Rights. It appears, therefore, that Congress was aware in 

1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which 

a pre-existing right to bail could be abridged. 

Long unresolved was the issue of whether ‘‘preventive detention’’—the denial of bail to an accused, unconvicted defendant because it is feared or it is found probable that if released he will be 

a danger to the community—is constitutionally permissible. Not 

until 1984 did Congress authorize preventive detention in federal 

criminal proceedings. 19

1568 AMENDMENT 8—PUNISHMENT FOR CRIME 

certain serious crimes (e.g., crimes of violence, capital crimes, and crimes punishable 

by 10 or more years’ imprisonment) if the court or magistrate finds that no conditions will reasonably assure both the appearance of the person and the safety of others. Detention can also be ordered in other cases where there is a serious risk that 

the person will flee or that the person will attempt to obstruct justice. Preventive 

detention laws have also been adopted in some States. Parker v. Roth, 202 Neb. 850, 

278 N.W. 2d 106, cert. denied, 444 U.S. 920 (1979). 20Schall v. Martin, 467 U.S. 253 (1984). 21 481 U.S. 739 (1988). 22 481 U.S. at 753. 23 481 U.S. at 754. 24 481 U.S. at 755. The Court also ruled that there was no violation of due process, the governmental objective being legitimate and there being a number of procedural safeguards (detention applies only to serious crimes, the arrestee is entitled 

to a prompt hearing, the length of detention is limited, and detainees must be 

housed apart from criminals). 25Stack v. Boyle, 342 U.S. 1, 4–6 (1951). 26 United States v. Salerno, 481 U.S. at 754. 27Stack v. Boyle, 342 U.S. at 6-7. 

The Court first tested and upheld under the Due Process 

Clause of the Fourteenth Amendment a state statute providing for 

preventive detention of juveniles. 20 Then, in United States v. 

Salerno, 21 the Court upheld application of preventive detention 

provisions of the Bail Reform Act of 1984 against facial challenge 

under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant 

prior to trial nor to safeguarding a court’s role in adjudicating guilt 

or innocence. ‘‘[W]e reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other 

admittedly compelling interests through regulation of pretrial release.’’ 22 Instead, ‘‘the only arguable substantive limitation of the 

Bail Clause is that the government’s proposed conditions of release 

or detention not be ‘excessive’ in light of the perceived evil.’’ 23 Detention pending trial of ‘‘arrestees charged with serious felonies 

who are found after an adversary hearing to pose a threat to the 

safety of individuals or to the community which no condition of release can dispel’’ satisfies this requirement. 24

Bail is ‘‘excessive’’ in violation of the Eighth Amendment when 

it is set at a figure higher than an amount reasonably calculated 

to ensure the asserted governmental interest. 25 If the only asserted 

interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then ‘‘bail must be set by a court 

at a sum designed to ensure that goal, and no more.’’ 26 To challenge bail as excessive, one must move for a reduction, and if that 

motion is denied appeal to the Court of Appeals, and if unsuccessful then to the Supreme Court Justice sitting for that circuit. 27 The

Amendment is apparently inapplicable to postconviction release 

AMENDMENT 8—PUNISHMENT FOR CRIME 1569

28 Hudson v. Parker, 156 U.S. 277 (1895). 29 Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833). 30Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921). 31Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). 32 Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989). 33 492 U.S. at 265. 34 492 U.S. at 266. 35 492 U.S. at 268. 36 In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether 

it was a civil or criminal procedure, but rather on whether the forfeiture could be 

pending appeal, but the practice has apparently been to grant such 

releases. 28

EXCESSIVE FINES 

For years the Supreme Court had little to say about excessive 

fines. In an early case, it held that it had no appellate jurisdiction 

to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record. 29 Justice Brandeis once contended in dissent that the denial of secondclass mailing privileges to a newspaper on the basis of its past conduct, because it imposed additional mailing costs which grew day 

by day, amounted to an unlimited fine that was an ‘‘unusual’’ and 

‘‘unprecedented’’ punishment proscribed by the Eighth Amendment. 30 The Court has elected to deal with the issue of fines levied 

upon indigents, resulting in imprisonment upon inability to pay, in 

terms of the equal protection clause, 31 thus obviating any necessity 

to develop the meaning of ‘‘excessive fines’’ in relation to ability to 

pay. The Court has held the Clause inapplicable to civil jury 

awards of punitive damages in cases between private parties, 

‘‘when the government neither has prosecuted the action nor has 

any right to receive a share of the damages awarded.’’ 32 The Court 

based this conclusion on a review of the history and purposes of the 

Excessive Fines Clause. At the time the Eighth Amendment was 

adopted, the Court noted, ‘‘the word ‘fine’ was understood to mean 

a payment to a sovereign as punishment for some offense.’’ 33 The

Eighth Amendment itself, as were antecedents of the Clause in the 

Virginia Declaration of Rights and in the English Bill of Rights of 

1689, ‘‘clearly was adopted with the particular intent of placing 

limits on the powers of the new government.’’ 34 Therefore, while 

leaving open the issues of whether the Clause has any applicability 

to civil penalties or to qui tam actions, the Court determined that 

‘‘the Excessive Fines Clause was intended to limit only those fines 

directly imposed by, and payable to, the government.’’ 35 The Court 

has held, however, that the excessive fines clause can be applied 

in civil forfeiture cases. 36

1570 AMENDMENT 8—PUNISHMENT FOR CRIME 

seen as punishment. The Court was apparently willing to consider any number of 

factors in making this evaluation; civil forfeiture was found to be at least partially 

intended as punishment, and thus limited by the clause, based on its common law 

roots, its focus on culpability, and various indications in the legislative histories of 

its more recent incarnations. 37 United States v. Bajakajian, 524 U.S. 321, 334 (1998). 38 524 U.S. 321 (1998). 39The Court held that a criminal forfeiture, which is imposed at the time of sentencing, should be considered a fine, because it serves as a punishment for the underlying crime. 524 U.S. at 328. The Court distinguished this from civil forfeiture, 

which, as an in rem proceeding against property, would generally not function as 

a punishment of the criminal defendant. 524 U.S. at 330-32. 40 524 U.S. at 334. 41 In Bajakajian, the lower court found that the currency in question was not 

derived from illegal activities, and that the defendant, who had grown up a member 

of the Armenian minority in Syria, had failed to report the currency out of distrust 

of the government. 524 U.S. at 325-26. The Court found it relevant that the defendant did not appear to be among the class of persons for whom the statute was designed, i.e. a money launderer or tax evader, and that the harm to the government 

from the defendant’s failure to report the currency was minimal. 524 U.S. at 338. 

In 1998, however, the Court injected vitality into the strictures 

of the clause. ‘‘The touchstone of the constitutional inquiry under 

the Excessive Fines Clause is the principle of proportionality: The 

amount of the forfeiture must bear some relationship to the gravity 

of the offense that it is designed to punish.’’ 37 In United States v. 

Bajakajian, 38 the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of 

the country forfeit the currency involved, which totaled $357,144. 

The Court held that the forfeiture 39 in this particular case violated 

the Excessive Fines Cause because the amount forfeited was 

‘‘grossly disproportionate to the gravity of defendant’s offense.’’ 40 In

determining proportionality, the Court did not limit itself to a comparison of the fine amount to the proven offense, but it also considered the particular facts of the case, the character of the defendant, 

and the harm caused by the offense. 41

CRUEL AND UNUSUAL PUNISHMENTS 

During congressional consideration of this provision one Member objected to ‘‘the import of [the words] being too indefinite’’ and 

another Member said: ‘‘No cruel and unusual punishment is to be 

inflicted; it is sometimes necessary to hang a man, villains often 

deserve whipping, and perhaps having their ears cut off; but are 

we in the future to be prevented from inflicting these punishments 

because they are cruel? If a more lenient mode of correcting vice 

and deterring others from the commission of it would be invented, 

it would be very prudent in the Legislature to adopt it; but until 

we have some security that this will be done, we ought not to be 

restrained from making necessary laws by any declaration of this 

AMENDMENT 8—PUNISHMENT FOR CRIME 1571

42 1 ANNALS OF CONGRESS 754 (1789). 43 E.g., 2 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE CONSTITUTION 111 (2d ed. 1836); 3 id. at 447–52. 44See Granucci, ‘Nor Cruel and Unusual Punishments Inflicted’ : The Original 

Meaning, 57 CALIF. L. REV. 839 (1969). Disproportionality, in any event, was utilized by the Court in Weems v. United States, 217 U.S. 349 (1910). It is not clear 

what, if anything, the word ‘‘unusual’’ adds to the concept of ‘‘cruelty’’ (but see 

Furman v. Georgia, 408 U.S. 238, 276 n.20 (1972) (Justice Brennan concurring)), although it may have figured in Weems, 217 U.S. at 377, and in Trop v. Dulles, 356 

U.S. 86, 100 n.32 (1958) (plurality opinion), and it did figure in Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991) (‘‘severe, mandatory penalties may be cruel, but 

they are not unusual in the constitutional sense, having been employed in various 

forms throughout our Nation’s history’’). 45Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); 

cf. Weems v. United States, 217 U.S. 349, 368–72 (1910). On the present Court, 

Chief Justice Rehnquist subscribes to this view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas 

appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966–90 (1991) 

(Justice Scalia announcing judgment of Court) (relying on original understanding of 

Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Justice 

Thomas dissenting) (objecting to Court’s extension of the Amendment ‘‘beyond all 

bounds of history and precedent’’ in holding that ‘‘significant injury’’ need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel 

and unusual punishment). 46 217 U.S. 349 (1910). 47 217 U.S. at 376–77. 

kind.’’ 42 It is clear from some of the complaints about the absence 

of a bill of rights including a guarantee against cruel and unusual 

punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants, 43 but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional 

concern with arbitrary and disproportionate punishments. 44

Though few in number, the decisions of the Supreme Court interpreting this guarantee have applied it in both senses. 

Style of Interpretation 

At first, the Court was inclined to an historical style of interpretation, determining whether or not a punishment was ‘‘cruel 

and unusual’’ by looking to see if it or a sufficiently similar variant 

was considered ‘‘cruel and unusual’’ in 1789. 45 But in Weems v. 

United States 46 it was concluded that the framers had not merely 

intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of 

‘‘a coercive cruelty being exercised through other forms of punishment.’’ The Amendment therefore was of an ‘‘expansive and vital 

character’’ 47 and, in the words of a later Court, ‘‘must draw its 

meaning from the evolving standards of decency that mark the 

1572 AMENDMENT 8—PUNISHMENT FOR CRIME 

48Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion). This oft-quoted 

passage was recently repeated, the Court adding that cruel and unusual punishment ‘‘is judged not by the standards that prevailed in 1685 . . . or when the Bill 

of Rights was adopted, but rather by those that currently prevail.’’ Atkins v. Virginia, 122 S. Ct. 2242, 2247 (2002). 49See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and 

Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978). 50Wilkerson v. Utah, 99 U.S. 130, 135 (1878). 51 Hanging was the other method of execution commonly used at the time, and 

implicitly approved by the Court. 52 In re Kemmler, 136 U.S. 436 (1890). 53Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Justice Frankfurter tested the issue by due process standards. Id. at 470 (concurring). Years earlier the Court, although recognizing that the Eight Amendment was then inapplicable to the states, opined in dictum that a fine and brief imprisonment for illegal 

sale of alcohol was not cruel and unusual punishment. Pervear v. Commonwealth, 

72 U.S. (5 Wall.) 475, 479–80 (1867). 54 356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war 

power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by 

which Congress regulated discipline in the armed forces. Id. at 121, 124–27. 

progress of a maturing society.’’ 48 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases. 49

Application and Scope 

‘‘Difficulty would attend the effort to define with exactness the 

extent of the constitutional provision which provides that cruel and 

unusual punishments shall not be inflicted; but it is safe to affirm 

that punishments of torture [such as drawing and quartering, 

embowelling alive, beheading, public dissecting, and burning alive], 

and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.’’ 50

In upholding capital punishment inflicted by a firing squad, 

the Court not only looked to traditional practices but examined the 

history of executions in the territory concerned, the military practice, and current writings on the death penalty. 51 Relying on the 

Fourteenth Amendment’s Due Process Clause rather than the 

Eighth Amendment, the Court next approved electrocution as a 

permissible method of administering punishment. 52 Many years 

later, a divided Court, assuming the applicability of the Eighth 

Amendment to the States, held that a second electrocution following a mechanical failure at the first which injured but did not 

kill the condemned man did not violate the proscription. 53

Divestiture of the citizenship of a natural born citizen was held 

to be cruel and unusual punishment in Trop v. Dulles. 54 The Court 

viewed divestiture as a penalty more cruel and ‘‘more primitive 

AMENDMENT 8—PUNISHMENT FOR CRIME 1573

55 356 U.S. at 99–100. The action of prison guards in handcuffing a prisoner to 

a hitching post for long periods of time violated basic human dignity and constituted 

‘‘gratuitous infliction of ‘wanton and unnecessary pain’’’ prohibited by the Clause. 

Hope v. Pelzer, 122 S. Ct. 2508, 2515 (2002). 56 408 U.S. 238 (1972). 57See 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). 

than torture,’’ inasmuch as it entailed statelessness or ‘‘the total 

destruction of the individual’s status in organized society.’’ ‘‘The 

question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the 

Eighth Amendment.’’ A punishment must be examined ‘‘in light of 

the basic prohibition against inhuman treatment,’’ and the Amendment was intended to preserve the ‘‘basic concept . . . [of] the dignity of man’’ by assuring that the power to impose punishment is 

‘‘exercised within the limits of civilized standards.’’ 55

Capital Punishment 

The Court’s 1972 decision in Furman v. Georgia, 56 finding constitutional deficiencies in the manner in which the death penalty 

was arrived at 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 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 extensive review of 

capital sentences. 57 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 followup cases that reviewed state laws revised in light of Furman reaffirmed the constitutionality of capital punishment per se, but also 

opened up several avenues for constitutional review. 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 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. 

While the Court continues to tinker with application of these 

principles, it also has taken steps to attempt to reduce the many 

procedural and substantive opportunities for delay and defeat of 

1574 AMENDMENT 8—PUNISHMENT FOR CRIME 

58See, e.g., Gardner v. Florida, 430 U.S. 349, 357–58 (1977): ‘‘From the point 

of view of the defendant, [death] is different in both its severity and its finality. 

From the point of view of society, the action of the sovereign in taking the life of 

one of its citizens also differs dramatically from any other legitimate state action. 

It is of vital importance . . . that any decision to impose the death sentence be, and 

appear to be, based on reason rather than caprice or emotion.’’ 59See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983): ‘‘unlike a term of years, 

a death sentence cannot begin to be carried out by the State while substantial legal 

issues remain outstanding. Accordingly, federal courts must isolate the exceptional 

cases where constitutional error requires retrial or resentencing as certainly and 

swiftly as orderly procedures will permit.’’ See also Gomez v. United States District 

Court, 503 U.S. 653 (1992) (vacating orders staying an execution, and refusing to 

consider, because of ‘‘abusive delay,’’ a claim that ‘‘could have been brought more 

than a decade ago’’—that California’s method of execution (cyanide gas) constitutes 

cruel and unusual punishment). 60 In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position 

that ‘‘the fact that a death sentence has been imposed requires a different standard 

of review on federal habeas corpus,’’ and also declared that, because of ‘‘the very disruptive effect that entertaining claims of actual innocence would have on the need 

for finality in capital cases, . . . the threshold showing for such an assumed right 

would necessarily be extraordinarily high.’’ Id. at 417. 61See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 

No. 104-132, 110 Stat. 1214. 62Gone too is Justice Blackmun, whose early support for capital punishment 

gave way near the end of his career to a belief that the Court’s effort to reconcile 

the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed, and that the death penalty ‘‘as currently administered, is unconstitutional.’’ Callins v. Collins, 510 U.S. 1141, 1159 (1994) (dissenting 

from denial of cert.) 

the carrying out of death sentences, and to give the states more 

leeway in administering capital sentencing. The early postFurman stage involving creation of procedural protections for capital defendants and premised on a ‘‘death is different’’ rationale, 58

gave way to increasing impatience with the delays made possible 

through procedural protections, especially those associated with 

federal habeas corpus review. 59 Having consistently held that capital punishment is not inherently unconstitutional, the Court seems 

bent on clarifying and even streamlining constitutionally required 

procedures so that those states that choose to impose capital punishment may do so without inordinate delays. In the habeas context, the interest in finality has trumped a death-is-different approach. 60 The writ has also been restricted statutorily. 61

Changed membership on the Court has had an effect. Gone 

from the Court are Justices Brennan and Marshall, whose belief 

that all capital punishment constitutes cruel and unusual punishment resulted in two automatic votes against any challenged death 

sentence. 62 Strong differences remain over such issues as the appropriate framework for consideration of aggravating and mitigating circumstances and the appropriate scope of federal review, 

but as of 2002 a Court majority still seemed committed to reducing 

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63 356 U.S. 86, 99 (1958). 64 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). See also Davis v. Georgia, 429 

U.S. 122 (1976), and Adams v. Texas, 448 U.S. 38 (1980) (explicating Witherspoon). 

The Eighth Amendment was the basis for grant of review in Boykin v. Alabama, 

395 U.S. 238 (1969) and Maxwell v. Bishop, 398 U.S. 262 (1970), but membership 

changes on the Court resulted in decisions on other grounds. 65 402 U.S. 183 (1971). McGautha was decided in the same opinion with 

Crampton v. Ohio. McGautha raised the question 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 

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; while bifurcated proceedings might be desirable, they were not required by due process. 66 408 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.

obstacles created by federal review of death sentences imposed 

under state laws that have been upheld as constitutional. 

General Validity and Guiding Principles.—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.’’ 63 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 imposed 64 culminated in what appeared to be a decisive rejection of the attack in McGautha v. California. 65 Nonetheless, the 

Court then agreed to hear a series of cases directly raising the 

question of the validity of capital punishment under the cruel and 

unusual punishments clause, and, to considerable surprise, the 

Court held in Furman v. Georgia 66 that the death penalty, at least 

as administered, did violate the Eighth Amendment. There was no 

unifying opinion of the Court in Furman; the five Justices in the 

majority each approached the matter from a different angle in a 

separate concurring opinion. Two Justices concluded that the death 

penalty was ‘‘cruel and unusual’’ per se because the imposition of 

1576 AMENDMENT 8—PUNISHMENT FOR CRIME 

67 408 U.S. at 257 (Justice Brennan). 68 408 U.S. at 314 (Justice Marshall). 69 408 U.S. at 240 (Justice Douglas). 70 408 U.S. at 306 (Justice Stewart). 71 408 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. 72 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 ‘‘glossolalial.’’ Woodson v. North Carolina, 428 U.S. 280, 317 

(1976) (dissenting). 73 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’’). 74On 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); Enmund v. 

capital punishment ‘‘does not comport with human dignity’’ 67 or because it is ‘‘morally unacceptable’’ and ‘‘excessive.’’ 68 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. 69 Two Justices concluded 

that capital punishment was both ‘‘cruel’’ and ‘‘unusual’’ because it 

was applied in an arbitrary, ‘‘wanton,’’ and ‘‘freakish’’ manner 70

and so infrequently that it served no justifying end. 71

Because only two of the Furman Justices 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. 72

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. 73 Instead, while 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, 74 it chose several different 

AMENDMENT 8—PUNISHMENT FOR CRIME 1577

Florida, 458 U.S. 782 (1982) (felony murder committed by confederate). 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 law, 49 U.S.C. § 1472, imposes death only when death occurs during commission of the hijacking. But the treason statute does not require a death to occur 

and represents a situation in which great and fatal danger might be presented. 18 

U.S.C. § 2381. 75 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). 76 A comprehensive evaluation of the multiple approaches followed in Furmanera 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). 77Thus, Justice Douglas thought the penalty had been applied discriminatorily, 

Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart thought it had been applied in an arbitrary, ‘‘wanton,’’ and ‘‘freakish’’ manner , id. at 310, and Justice 

White thought it had been applied so infrequently that it served no justifying end. 

Id. at 313. 78The 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 aggrapaths in attempting to delineate the acceptable procedural devices 

that must be instituted in order that death may be constitutionally 

pronounced and carried out. To summarize, the Court determined 

that the penalty of death for deliberate murder is not per se cruel

and unusual, but that mandatory death statutes leaving the jury 

or trial judge no discretion to consider the individual defendant and 

his crime are cruel and unusual, and that standards and procedures may be established for the imposition of death that would remove or mitigate the arbitrariness and irrationality found so significant in Furman. 75 Divisions among the Justices, however, made 

it difficult to ascertain the form which permissible statutory 

schemes may take. 76

Inasmuch as 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, 77 legislatures turned to enactment of statutes that purported to do away with these difficulties. One approach was to provide for automatic imposition of the death penalty upon conviction 

for certain forms of murder. More commonly, states established 

special procedures to follow in capital cases, and specified aggravating and mitigating factors that the sentencing authority must 

consider in imposing sentence. In five cases in 1976, the Court rejected automatic sentencing, but approved other statutes specifying 

factors for jury consideration. 78

1578 AMENDMENT 8—PUNISHMENT FOR CRIME 

vating 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). 79Gregg 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. 

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment. While there were differences of degree among the seven 

Justices in the majority on this point, they all seemed to concur in 

the position that reenactment of capital punishment statutes by 35 

States precluded the Court from concluding that this form of penalty was no longer acceptable to a majority of the American people. 

Rather, they concluded, a large proportion of American society continued to regard it as an appropriate and necessary criminal sanction. Neither is it possible, the Court continued, 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 which 

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. Neither is the punishment of death disproportionate to the crime being punished, murder. 79

Second, a different majority, however, 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 

AMENDMENT 8—PUNISHMENT FOR CRIME 1579

80Woodson 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. 428 U.S. at 305, 306, 336. 81 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 Lockett. See Marks v. United States, 430 U.S. 188, 

192–94 (1977). 82The Stewart plurality noted its belief that jury sentencing in capital cases 

performs an important societal function in maintaining a 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). A definitive ruling came in Spaziano v. Florida, 468 U.S. 447 (1984), upholding a provision under which the judge can override a jury’s advisory life imprisonment sentence and impose the death sentence. ‘‘[Tlhe purpose of the death penalty 

is not frustrated by, or inconsistent with, a scheme in which the imposition of the 

penalty in individual cases is determined by a judge.’’ Id. at 462–63. Consequently, 

a judge may be given significant discretion to override a jury sentencing recommendation, as long as the court’s decision is adequately channeled to prevent arbitrary results. Harris v. Alabama, 513 U.S. 504 (1995) (Eighth Amendment not violated where judge is only required to ‘‘consider’’ a capital jury’s sentencing recommendation). The Sixth Amendment right to jury trial is violated, however, if the 

judge makes factual findings (e.g., as to the existence of aggravating circumstances) 

on which a death sentence is based. Ring v. Arizona, 122 S. Ct. 2258 (2002). 83Gregg 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 McGautha, see 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 doctor testifies about his conclusions with respect to future dangerousness). 

particular offense’’ that ‘‘the fundamental respect for humanity underlying the Eighth Amendment’’ requires in capital cases. 80

A third principle established by the 1976 cases was that the 

procedure by which a death sentence is imposed must be so structured as to reduce arbitrariness and capriciousness as much as possible. 81 What emerged from the prevailing plurality opinion in 

these cases are requirements (1) that the sentencing authority, jury 

or judge, 82 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; 83 (2)

that to prevent jury prejudice on the issue of guilt there be a sepaVerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036
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84Gregg 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). 85Gregg 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). 86Pulley v. Harris, 465 U.S. 37 (1984). 87 465 U.S. at 50. 88 Ring v. Arizona, 122 S. Ct. 2258 (2002). 

rate proceeding after conviction at which evidence relevant to the 

sentence, mitigating and aggravating, will be presented; 84 (3) that 

special forms of appellate review be provided not only of the conviction but also of the sentence, to ascertain that the sentence was in 

fact fairly imposed both on the facts of the individual case and by 

comparison with the penalties imposed in similar cases. 85 The

Court later ruled, however, that proportionality review is not constitutionally required. 86 Gregg, Proffitt, and Jurek did not require 

such comparative proportionality review, the Court noted, but 

merely suggested that proportionality review is one means by 

which a state may ‘‘safeguard against arbitrarily imposed death 

sentences.’’ 87

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. 88 This means that capital sentencing schemes 

are unconstitutional if judges are allowed to make factual findings 

as to the existence of aggravating circumstances that are prerequisites for imposition of a death sentence. 

Implementation of Procedural Requirements.—Most states 

responded to the 1976 requirement that the sentencing authority’s 

discretion be narrowed by enacting statutes spelling out ‘‘aggravating’’ circumstances, and providing that at least one such aggravating circumstance must be found to be present before the death 

penalty may be imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk 

of arbitrary and capricious action by the sentencer, the desired result being a principled way to distinguish cases in which the death 

penalty should be imposed from other cases in which it should not 

be. Thus, the Court invalidated a capital sentence based upon a 

AMENDMENT 8—PUNISHMENT FOR CRIME 1581

89Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion). 90Maynard v. Cartwright, 486 U.S. 356 (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). 91Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis 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). 92 Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different 

defendant than the first Roberts v. Louisiana case, 428 U.S. 325 (1976). 93Sumner v. Shuman, 483 U.S. 66 (1987). 94 Baldwin v. Alabama, 472 U.S. 372 (1985) (mandatory jury death sentence 

saved by requirement that trial judge independently weigh aggravating and mitigating factors and determine sentence). The constitutionality of this approach has 

been brought into question, however, by the Court’s decision in Ring v. Arizona, 122 

S. Ct. 2258 (2002) that a judge’s finding of facts constituting aggravating circumstances violates the defendant’s right to trial by jury. 95 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 

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.’’ 89 Similarly, an ‘‘especially heinous, atrocious or cruel’’ aggravating circumstance was held to be unconstitutionally vague. 90 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. 91

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, 92 and for prison inmates convicted of murder 

while serving a life sentence without possibility of parole. 93 On the 

other hand, if actual sentencing authority is conferred on the trial 

judge, it is not unconstitutional for a statute to require a jury to 

return a death ‘‘sentence’’ upon convicting for specified crimes. 94

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 that 

would be justified by the evidence. 95 Because the jury had to 

1582 AMENDMENT 8—PUNISHMENT FOR CRIME 

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. 96 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). 97Gregg v. Georgia, 428 U.S. 153, 197–98 (1976) (plurality). 98 438 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. 

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. 96

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.’ 97 Discretion was channeled and rationalized. But in Lockett v. Ohio, 98 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 asVerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036
AMENDMENT 8—PUNISHMENT FOR CRIME 1583

99 438 U.S. at 604 (plurality). 100Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion of Justice 

Stewart, joined by Justices Powell and Stevens). Accord, Roberts v. Louisiana, 428 

U.S. 325 (1976) (statute mandating death penalty for five categories of homicide 

constituting first-degree murder). 101 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. 102 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— 

counterdoctrine 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, 661–62 (1990) (concurring in the judgment). For a critique of these 

criticisms of Lockett, see Scott E. Sundby, The Lockett Paradox: Reconciling Guided 

Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. REV. 1147 

(1991). 103 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)). 

pect 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.’’ 99 Similarly, the reason that a threejustice 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.’’ 100

Lockett and Woodson have since been endorsed by a Court majority. 101 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. 102

The Court has explained this apparent contradiction as constituting recognition that ‘‘individual culpability is not always measured by the category of crime committed,’’ 103 and as the product of 

an attempt to pursue the ‘‘twin objectives’’ of ‘‘measured, consistent 

1584 AMENDMENT 8—PUNISHMENT FOR CRIME 

104 Eddings v. Oklahoma, 455 U.S. 104, 110–11 (1982). 105Zant 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). 106 Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North 

Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)). 107Zant v. Stephens, 462 U.S. 862, 879 (1983). 108See, 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). 109 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). 110See, 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) (jury must be permitted to give effect to deapplication’’ of the death penalty and ‘‘fairness to the accused.’’ 104

The requirement that aggravating circumstances be spelled out by 

statute serves a narrowing purpose that helps consistency of application; absence of restriction on mitigating evidence helps promote 

fairness to the accused through an ‘‘individualized’’ consideration of 

his circumstances. In the Court’s words, statutory aggravating circumstances ‘‘play a constitutionally necessary function at the stage 

of legislative definition [by] circumscribing the class of persons eligible for the death penalty,’’ 105 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.’’ 106 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.’’ 107

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. 108 States may also 

cure some constitutional errors on appeal through operation of 

‘‘harmless error’’ rules and reweighing of evidence by the appellate 

court. 109 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. 

While holding fast to the Lockett requirement that sentencers 

be allowed to consider all mitigating evidence, 110 the Court has 

AMENDMENT 8—PUNISHMENT FOR CRIME 1585

fendant’s evidence of mental retardation and abused background); 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). But cf. 

Franklin v. Lynaugh, 487 U.S. 164 (1988) (consideration of defendant’s character as 

revealed by jail behavior may be limited to context of assessment of future dangerousness). 111 ‘‘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). 112 Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990). 113 494 U.S. at 307. 114 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). 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). 115 California v. Brown, 479 U.S. 538, 543 (1987). 116Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 

433 (1990). 

upheld state statutes that control the relative weight that the 

sentencer may accord to aggravating and mitigating evidence. 111

‘‘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. 112 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, 113 or if the jury finds that aggravating circumstances 

outweigh mitigating circumstances. 114 And a court may instruct 

that the jury ‘‘must not be swayed by mere sentiment, conjecture, 

sympathy, passion, prejudice, public opinion, or public feeling,’’ 

since in essence the instruction merely cautions the jury not to 

base its decision ‘‘on factors not presented at the trial.’’ 115 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. 116

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 

1586 AMENDMENT 8—PUNISHMENT FOR CRIME 

117Simmons v. South Carolina, 512 U.S. 154 (1994). See also Shafer v. South 

Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs afoul of Simmons); Kelly v. South Carolina, 122 S. Ct. 726 (2002) (prosecutor need not express 

intent to rely on future dangerousness; logical inference may be drawn). But see 

Ramdass v. Angelone, 530 U.S. 156 (2000) (refusing to apply Simmons because the 

defendant was not technically parole ineligible at time of sentencing). 118Zant v. Stephens, 462 U.S. 862 (1983). 119 Barclay v. Florida, 463 U.S. 954 (1983). 120 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). 121 Clemons v. Mississippi, 494 U.S. 738 (1990). Cf. Parker v. Dugger, 498 U.S. 

308 (1991) (affirmance of death sentence invalid because appellate court did not reweigh non-statutory mitigating evidence). 122 Johnson v. Mississippi, 486 U.S. 578 (1988). 

alternative to a death sentence is a life sentence without possibility 

of parole. 117

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, 118 or on a trial judge’s 

consideration of improper aggravating circumstances. 119 In each 

case the sentencing authority had found other aggravating circumstances justifying imposition of capital punishment, and in 

Zant evidence relating to the invalid factor was nonetheless admissible on another basis. 120 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. 121 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 in spite of the presence of other aggravating factors. 122

Focus on the character and culpability of the defendant led the 

Court initially to hold that introduction of evidence about the character of the victim or the amount of emotional distress caused to 

the victim’s family or community was inappropriate because it ‘‘creates an impermissible risk that the capital sentencing decision will 

AMENDMENT 8—PUNISHMENT FOR CRIME 1587

123 Booth v. Maryland, 482 U.S. 496, 503 (1987). And culpability, the Court 

added, ‘‘depends not on fortuitous circumstances such as the composition [or articulateness] of [the] victim’s family, but on circumstances over which [the defendant] 

has control.’’ Id. at 504 n.7. The decision was 5–4, with Justice Powell’s opinion of 

the Court being joined by Justices Brennan, Marshall, Blackmun, and Stevens, and 

with Chief Justice Rehnquist and Justices White, O’Connor, and Scalia dissenting. 

See also South Carolina v. Gathers, 490 U.S. 805 (1989), holding that a prosecutor’s 

extensive comments extolling the personal characteristics of a murder victim can invalidate a death sentence when the victim’s character is unrelated to the circumstances of the crime. 124Payne v. Tennessee, 501 U.S. 808 (1991). ‘‘In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, 

the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief,’’ Chief Justice Rehnquist explained for the Court. Id. at 825. Justices White, 

O’Connor, Scalia, Kennedy, and Souter joined in that opinion. Justices Marshall, 

Blackmun, and Stevens dissented. 125 501 U.S. at 827. Overruling of Booth may have been unnecessary in 

Payne, inasmuch as the principal ‘‘victim impact’’ evidence introduced involved trauma to a surviving victim of attempted murder who had been stabbed at the same 

time his mother and sister had been murdered and who had apparently witnessed 

those murders; this evidence could have qualified as ‘‘admissible because . . . 

relate[d] directly to the circumstances of the crime.’’ Booth, 482 U.S. at 507 n.10. 

Gathers was directly at issue in Payne because of the prosecutor’s references to effects on family members not present at the crime. 126 501 U.S. at 822 (citation omitted). 127 433 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. 128 Although the Court stated the issue in the context of the rape of an adult 

woman, 433 U.S. at 592, the opinion at no point sought to distinguish between 

adults and children. Justice Powell’s concurrence expressed the view that death is 

be made in an arbitrary manner.’’ 123 Changed membership on the 

Court resulted in overruling of these decisions, however, and a 

holding that ‘‘victim impact statements’’ are not barred from evidence by the Eighth Amendment. 124 ‘‘A State may legitimately conclude that evidence about the victim and about the impact of the 

murder on the victim’s family is relevant to the jury’s decision as 

to whether or not the death penalty should be imposed.’’ 125 In the 

view of the Court majority, admissibility of victim impact evidence 

was necessary in order to restore balance to capital sentencing. Exclusion of such evidence had ‘‘unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his 

own circumstances, the State is barred from either offering ‘a 

glimpse of the life’ which a defendant ‘chose to extinguish,’ or demonstrating the loss to the victim’s family and to society which has 

resulted from the defendant’s homicide.’’ 126

Limitations on Capital Punishment: Proportionality.—In

Coker v. Georgia, 127 the Court held that the state may not impose 

a death sentence upon a rapist who did not take a human life. 128

1588 AMENDMENT 8—PUNISHMENT FOR CRIME 

ordinarily disproportionate for the rape of an adult woman, but that some rapes 

might be so brutal or heinous as to justify it. Id. at 601. 129 433 U.S. at 592. 130 433 U.S. at 592 131 433 U.S. at 598. 132 458 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. 

Accord, Cabana 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 

Enmundfindings have been made). 

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. 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.’’ 129 In order 

that judgment not be or appear to be the subjective conclusion of 

individual Justices, attention must be given to objective factors, 

predominantly ‘‘to the public attitudes concerning a particular sentence—history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions. . . .’’ 130 While

the Court thought that the death penalty for rape passed the first 

test, it felt it failed the second. 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 injury to the person and the public.’’ 131

Applying the Coker analysis, the Court ruled in Enmund v. 

Florida 132 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. While 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 similarly 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 a likely deterrent 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 

AMENDMENT 8—PUNISHMENT FOR CRIME 1589

133 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. 134 481 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. 135 Cabana v. Bullock, 474 U.S. 376 (1986). Moreover, an appellate court’s finding of culpability is entitled to a presumption of correctness in federal habeas review, a habeas petitioner bearing a ‘‘heavy burden of overcoming the presumption.’’ 

Id. at 387–88. See also Pulley v. Harris, 465 U.S. 37 (1984) (Eighth Amendment 

does not invariably require comparative proportionality review by a state appellate 

court). 136 477 U.S. 399 (1986). 137There was an opinion of the Court only on the first issue, that the Eighth 

Amendment creates a right not to be executed while insane. Justice Marshall’s opinion to that effect was joined by Justices Brennan, Blackmun, Stevens, and Powell. 

The Court’s opinion did not attempt to define insanity; Justice Powell’s concurring 

opinion would have held the prohibition applicable 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. 

not as a result of his own intention serves neither of the purposes 

underlying the penalty. 133 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.’’ 134 A few years earlier, Enmund had also been weakened by the Court’s holding that the factual finding of requisite intent to kill need not be made by the guilt/innocence factfinder, 

whether judge or jury, but may be made by a state appellate 

court. 135

Limitations on Capital Punishment: Diminished Capacity.—The Court has recently grappled with several cases involving 

application of the death penalty to persons of diminished capacity. 

The first such case involved a defendant whose competency at the 

time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The 

Court held in Ford v. Wainwright 136 that the Eighth Amendment 

prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of executiontime sanity must be determined in a proceeding satisfying the minimum requirements of due process. 137 The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and conVerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036
1590 AMENDMENT 8—PUNISHMENT FOR CRIME 

138There 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 decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or 

board, sets forth the Court’s holding. 139Penry v. Lynaugh, 492 U.S. 302, 335 (1989). While unwilling to conclude that 

execution of a mentally retarded person is ‘‘categorically prohibited by the Eighth 

Amendment,’’ the Court did point out that, due to the requirement of individualized 

consideration of culpability, a retarded defendant is entitled to an instruction that 

the jury may consider and give mitigating effect to evidence of retardation or a 

background of abuse. Id. at 328. 140 122 S. Ct. 2242 (2002). Atkins was a 6–3 decision. Justice Stevens’ opinion 

of the Court was joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and 

Breyer. Chief Justice Rehnquist and Justices Scalia and Thomas dissented. 141 122 S. Ct. at 2249. 142 122 S. Ct. at 2249. 

tinued to be so viewed. And, while no states purported to permit 

the execution of the insane, Florida and a number of others left the 

determination to the governor. Florida’s procedures, the Court held, 

fell short of due process because the decision was vested in the governor without the defendant having the opportunity to be heard, 

the governor’s decision being based on reports of three state-appointed psychiatrists. 138

When first confronted with the issue of whether execution of 

the mentally retarded is constitutional, the Court in 1989 found 

‘‘insufficient evidence of a national consensus against executing 

mentally retarded people.’’ 139 In 2002, however, the Court determined in Atkins v. Virginia 140 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. 141 In 1989, only two states and the Federal Government prohibited execution of the mentally retarded while allowing executions 

generally. By 2002, an additional 16 states had prohibited execution of the mentally retarded, 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.’’ 142 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—apply with full force to mentally retarded offenders. Retribution necessarily depends on the 

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AMENDMENT 8—PUNISHMENT FOR CRIME 1591

143 122 S. Ct. at 2251. 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. 144Thompson v. Oklahoma, 487 U.S. 815 (1988). 145The plurality opinion by Justice Stevens was joined by Justices Brennan, 

Marshall, and Blackmun; as indicated in the text, Justice O’Connor concurred in a 

separate opinion; and Justice Scalia, joined by Chief Justice Rehnquist and by Justice White, dissented. Justice Kennedy did not participate. 146 492 U.S. 361 (1989). The bulk of Justice Scalia’s opinion, representing the 

opinion of the Court, was joined by Chief Justice Rehnquist and by Justices White, 

O’Connor, and Kennedy. Justice O’Connor took exceptions to other portions of Justice Scalia’s opinion (dealing with proportionality analysis); and Justice Brennan, 

joined by Justices Marshall, Blackmun, and Stevens, dissented. 147The case of Wilkins v. Missouri was decided along with Stanford. 148 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 debility. 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.’’ 143

So far the Court has not imposed a categorical prohibition on 

execution of juveniles. A closely divided Court has invalidated one 

statutory scheme which permitted capital punishment to be imposed for crimes committed before age 16, but has upheld other 

statutes authorizing capital punishment for crimes committed by 

16 and 17 year olds. Important to resolution of the first case was 

the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as 

adults for some purposes. 144 While four Justices favored a flat ruling that execution of anyone younger than 16 at the time of his offense is barred by the Eighth Amendment, 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. 145 The following year 

Justice O’Connor again provided the decisive vote when the Court 

in Stanford v. Kentucky 146 held that the Eighth Amendment does 

not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri 147 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 

imposition of capital punishment on 16 or 17-year-old murderers, 

whereas there was such a consensus against execution of 15 year 

olds. 148 This lack of consensus apparently continued in 2002. In AtVerDate Apr<15>2004 11:08 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00027 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036
1592 AMENDMENT 8—PUNISHMENT FOR CRIME 

cline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-oldoffenders). 149 122 S. Ct. at 2249 n.18. Only two months after the Atkins decision, Justice 

Stevens, author of the Court’s opinion in Atkins, asserted that the Court should reconsider the issue of execution of juvenile offenders, ‘‘[g]iven the apparent consensus 

that exists among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender.’’ Patterson v. Texas, 536 

U.S. 984 (2002) (dissenting from denial of stay of execution). Justice Ginsburg, 

joined by Justice Breyer, also dissented from the stay denial, asserting that Atkins had made it ‘‘tenable for a petitioner to urge reconsideration of Stanford v. Kentucky,’’ but the petition for a stay was rejected by 6–3 vote. 

150 ‘‘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.’’ 

492 U.S. at 377. 151 492 U.S. at 394–96. Justice O’Connor, while recognizing the Court’s ‘‘constitutional obligation to conduct proportionality analysis,’’ did not believe that such 

analysis can resolve the underlying issue of the constitutionally required minimum 

age. 492 U.S. at 382. 

kins v. Virginia, the Court contrasted the national consensus said 

to have developed against executing the mentally retarded with the 

situation regarding execution of juvenile offenders over age 15, and 

noted that only two state legislatures had raised the threshold 

age. 149

The Stanford Court was split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would focus almost exclusively on an assessment of what the 

state legislatures and Congress have done in setting an age limit 

for application of capital punishment. 150 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. 151 As indicated above, 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 the 

mentally retarded. 

Limitations on Capital Punishment: Equality of Application.—One of the principal objections to 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’’ in juries were being used as vehicles for racial discrimination, 

and that ‘‘discrimination is an ingredient not compatible with the 

idea of equal protection of the laws that is implicit in the ban on 

AMENDMENT 8—PUNISHMENT FOR CRIME 1593

152 408 U.S. at 248, 257. 153Turner v. Murray, 476 U.S. 28, 36–37 (1986). 154 481 U.S. 279 (1987). The decision was 5–4. Justice Powell’s opinion of the 

Court was joined by Chief Justice Rehnquist and by Justices White, O’Connor, and 

Scalia. Justices Brennan, Blackmun, Stevens, and Marshall dissented. 155 481 U.S. at 308. 156 481 U.S. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens). 157 481 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 McCleskey. See discussion of ‘‘Capital Punishment’’ under the 

Fourteenth Amendment, infra. See also United States v. Bass, 122 S. Ct. 2389 

(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. 

‘cruel and unusual’ punishments.’’ 152 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.’’ 153

Proof of prosecution bias is another matter. The Court ruled in 

McCleskey v. Kemp 154 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.’’ 155 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. While 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, 156

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. 157

Limitations on Habeas Corpus Review of Capital Sentences.—The Court’s rulings limiting federal habeas corpus review

1594 AMENDMENT 8—PUNISHMENT FOR CRIME 

158Pub. L. No. 104–132, 110 Stat. 1214. 

159 Herrera v. Collins, 506 U.S. 390, 405 (1993) (‘‘we have ‘refused to hold that 

the fact that a death sentence has been imposed requires a different standard of 

review on federal habeas corpus’’’) (quoting Murray v. Giarratano, 492 U.S. 1, 9 

(1989)).

160 492 U.S. 302 (1989). 

161 489 U.S. 288 (1989). The ‘‘new rule’’ limitation was suggested in a plurality 

opinion in Teague. A Court majority in Penry and later cases has adopted it. 

162 489 U.S. at 313. The second exception was at issue in Sawyer v. Smith, 497 

U.S. 227 (1990); there the Court held the exception inapplicable to the Caldwell v. 

Mississippi rule that the Eighth Amendment is violated by prosecutorial 

misstatements characterizing the jury’s role in capital sentencing as merely recommendatory. It is ‘‘not enough,’’ the Sawyer Court explained, ‘‘that a new rule is 

aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.’’ Id. at 242. 

163Penry, 492 U.S. at 314. Put another way, it is not enough that a decision 

is ‘‘within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ 

by a prior decision.’’ A decision announces a ‘‘new rule’’ if its result ‘‘was susceptible 

to debate among reasonable minds’’ or if it would not have been ‘‘an illogical or even 

a grudging application’’ of the prior decision to hold it inapplicable. Butler v. 

McKellar, 494 U.S. 407, 415 (1990). 

of state convictions, reinforced by the Antiterrorism and Effective 

Death Penalty Act of 1996, 158 may be expected to reduce significantly the amount of federal court litigation over state imposition 

of capital punishment. In the habeas context, the Court has flatly 

rejected the ‘‘death is different’’ approach by applying to capital 

cases the same rules that limit federal petitions in non-capital 

cases. 159

The Court held in Penry v. Lynaugh 160 that its Teague v. 

Lane 161 rule of nonretroactivity applies to capital sentencing challenges. Under Teague, ‘‘new rules’’ of constitutional interpretation 

announced after a defendant’s conviction has become final will not 

be applied in habeas cases unless one of two exceptions applies. 

The exceptions will rarely apply. One exception is for decisions 

placing certain conduct or defendants beyond the reach of the 

criminal law, and the other is for decisions recognizing a fundamental procedural right ‘‘without which the likelihood of an accurate conviction is seriously diminished.’’ 162 Further restricting the 

availability of federal habeas review is the Court’s definition of 

‘‘new rule.’’ Interpretations that are a logical outgrowth or application of an earlier rule are nonetheless ‘‘new rules’’ unless the result 

was ‘‘dictated’’ by that precedent. 163 While in Penry itself the Court 

determined that the requested rule (requiring an instruction that 

the jury consider mitigating evidence of the defendant’s mental retardation and abused childhood) was not a ‘‘new rule’’ because it 

was dictated by Eddings and Lockett, in subsequent habeas capital

AMENDMENT 8—PUNISHMENT FOR CRIME 1595

164See, e.g., Butler v. McKellar, 494 U.S. 407 (1990) (1988 ruling in Arizona v. 

Roberson, that the Fifth Amendment bars police-initiated interrogation following a 

suspect’s request for counsel in the context of a separate investigation, announced 

a ‘‘new rule’’ not dictated by the 1981 decision in Edwards v. Arizona that police 

must refrain from all further questioning of an in-custody accused who invokes his 

right to counsel); Saffle v. Parks, 494 U.S. 484 (1990) (habeas petitioner’s request 

that capital sentencing be reversed because of an instruction that the jury ‘‘avoid 

any influence of sympathy’’ is a request for a new rule not ‘‘compel[led]’’ by 

Eddings and Lockett, which governed what mitigating evidence a jury must be allowed to consider, not how it must consider that evidence); Sawyer v. Smith, 497 

U.S. 227 (1990) (1985 ruling in Caldwell v. Mississippi, although a ‘‘predictable development in Eighth Amendment law,’’ established a ‘‘new rule’’ that false prosecutorial comment on jurors’ responsibility can violate the Eighth Amendment by creating an unreasonable risk of arbitrary imposition of the death penalty, since no 

case prior to Caldwell had invalidated a prosecutorial comment on Eighth Amendment grounds). But see Stringer v. Black, 503 U.S. 222 (1992) (neither Maynard v. 

Cartwright, 486 U.S. 356 (1988), nor Clemons v. Mississippi, 494 U.S. 738 (1990), 

announced a ‘‘new rule’’). 165Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). 166Lewis v. Jeffers, 497 U.S. 764, 780–84 (1990). The lower court erred, therefore, in conducting a comparative review to determine whether application in the 

defendant’s case was consistent with other applications. 167 Herrera v. Collins, 506 U.S. 390 (1993) (holding that a petitioner would have 

to meet an ‘‘extraordinarily high’’ threshold of proof of innocence to warrant federal 

habeas relief). 168Dissenting Justices Blackmun, Stevens, and Souter (506 U.S. at 430); and 

concurring Justices O’Connor, Kennedy (id. at 419) and White (id. at 429). 169 Chief Justice Rehnquist’s opinion of the Court was joined by Justices 

O’Connor, Scalia, Kennedy, and Thomas. The Court distinguished Ford v. Wainwright, 477 U.S. 399 (1986) (minimal requirements of due process—i.e., the right 

to be heard—must be accorded to an insane prisoner in a proceeding in which the 

governor determines whether execution is to go forward), as involving ‘‘a matter of 

sentencing cases the Court has found substantive review barred by 

the ‘‘new rule’’ limitation. 164

A second restriction on federal habeas review also has ramifications for capital sentencing review. Claims that state convictions are unsupported by the evidence are weighed by a ‘‘rational 

factfinder’’ inquiry: ‘‘viewing the evidence in the light most favorable to the prosecution, [could] any rational trier of fact have found 

the essential elements of the crime beyond a reasonable doubt.’’ 165

This same standard for reviewing alleged errors of state law, the 

Court determined, should be used by a federal habeas court to 

weigh a claim that a generally valid aggravating factor is unconstitutional as applied to the defendant. 166 In addition, the Court has 

held that, absent an independent constitutional violation, habeas

corpus relief for prisoners who assert innocence based on newly discovered evidence should generally be denied. 167 While a majority of 

the Justices accepted the general principle that execution of the innocent is unconstitutional, 168 the different five-Justice majority 

that determined the outcome in the case indicated that the ‘‘traditional remedy’’ has been executive clemency. 169

1596 AMENDMENT 8—PUNISHMENT FOR CRIME 

punishment’’ rather than guilt or innocence. The guilt or innocence determination 

allegedly ‘‘becomes more uncertain with time for evidentiary reasons.’’ 506 U.S. at 

406.170 386 U.S. 18 (1967). 171 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). 172 Brecht v. Abrahamson, 507 U.S. at 637 (quoting Kotteakos v. United States, 

328 U.S. 750, 776 (1946)). Brecht was a non-capital case, but the rule was subsequently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam).

173Sawyer v. Whitley, 505 U.S. 333 (1992). The focus on eligibility limits inquiry 

to elements of the crime and to aggravating factors, and thereby prevents presentation of mitigating evidence. Here the court was barred from considering an allegation of ineffective assistance of counsel for failure to introduce the defendant’s mental health records as a mitigating factor at sentencing. 174 28 U.S.C. § 2254(d)(1). 175 122 S. Ct. 1843 (2002). 176The state court’s decision, which applied the rule from Strickland v. Washington, 466 U.S. 668 (1984), rather than the rule from United States v. Cronic, 466 

U.S. 648 (1984), to hold that the attorney’s performance was not constitutionally inadequate, was not ‘‘contrary to’’ clearly established law. Cronic had held that there 

are some situations, e.g., when counsel ‘‘entirely fails to subject the prosecution’s 

case to meaningful adversarial testing,’’ so presumptively unfair as to obviate the 

need to show actual prejudice to the defendant’s case. The Bell v. Cone Court emThird, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v. 

California 170 rule applicable on direct appeal, requiring the State 

to prove beyond a reasonable doubt that a constitutional error is 

harmless, is inappropriate for habeas review, the Court concluded, 

given the ‘‘secondary and limited’’ role of federal habeas proceedings. 171 The appropriate test is that previously used only for 

non-constitutional errors: ‘‘whether the error has substantial and 

injurious effect or influence in determining the jury’s verdict.’’ 172

A fourth rule was devised to prevent successive ‘‘abusive’’ or 

defaulted habeas petitions. Federal courts are barred from hearing 

such claims unless the defendant can show by clear and convincing 

evidence that, but for a constitutional error, no reasonable juror 

would have found him eligible for the death penalty under applicable state law. 173

The Antiterrorism and Effective Death Penalty Act prohibits 

federal habeas relief based on claims that were adjudicated on the 

merits in state court unless the state decision ‘‘was contrary to, or 

involved an unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United States.’’ 174

The Court’s decision in Bell v. Cone, 175 rejecting a claim that an 

attorney’s failure to present mitigating evidence during the capital 

sentencing phase of a trial and his waiver of a closing argument 

at sentencing should entitle a condemned prisoner to relief, illustrates how these restrictions can operate to defeat challenges to 

state-imposed death sentences. 176

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phasized the word ‘‘entirely,’’ noting that the petitioner challenged the defense attorney’s performance only ‘‘at specific points’’ in the process. Nor was the second statutory test met. Strickland, a ‘‘highly deferential’’ test asking whether an attorney’s 

performance fell below an ‘‘objective standard of reasonableness,’’ was not ‘‘unreasonably applied.’’ The attorney could reasonably have concluded that evidence presented during the guilt phase of the trial was still ‘‘fresh’’ to the jury, and that repetition through the presentation of mitigating evidence and/or through a closing 

statement was unnecessary to counter the state’s presentation of aggravating circumstances justifying a death sentence. 177Murray v. Giarratano, 492 U.S. 1 (1989) (‘‘unit attorneys’’ assigned to prisons 

were available for some advice prior to filing a claim). 178 144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135– 

36 (1903). 179 217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines which it interpreted 

as having the same meaning. Id. at 367. 180 217 U.S. at 381. 181 ‘‘The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.’’ Atkins v. 

Virginia, 122 S. Ct. 2242, 2247 (2002) (applying proportionality review to determine 

whether execution of the mentally retarded is cruel and unusual). Proportionality 

in the context of capital punishment is considered supra under ‘‘Limitations on Capital Punishment: Proportionality.’’ 182 370 U.S. 660 (1962). 

The Court has also ruled that a death row inmate has no constitutional right to an attorney to help prepare a petition for state 

collateral review. 177

Proportionality

Justice Field in O’Neil v. Vermont 178 argued in dissent that in 

addition to prohibiting punishments deemed barbarous and inhumane the Eighth Amendment also condemned ‘‘all punishments 

which by their excessive length or severity are greatly disproportionate to the offenses charged.’’ In Weems v. United States, 179 this

view was adopted by the Court in striking down a sentence in the 

Philippine Islands of 15 years incarceration at hard labor with 

chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court 

compared the sentence with those meted out for other offenses and 

concluded: ‘‘This contrast shows more than different exercises of 

legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the 

spirit of constitutional limitations formed to establish justice.’’ 180

Punishments as well as fines, therefore, can be condemned as excessive. 181

In Robinson v. California 182 the Court carried the principle to 

new heights, setting aside a conviction under a law making it a 

crime to ‘‘be addicted to the use of narcotics.’’ The statute was unconstitutional because it punished the ‘‘mere status’’ of being an adVerDate Apr<15>2004 13:31 Aug 18, 2004 Jkt 077500 PO 00000 Frm 00033 Fmt 8222 Sfmt 8222 C:\CONAN\CON036.SGM PRFM99 PsN: CON036
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183 A different approach to essentially the same problem was Thompson v. Louisville, 362 U.S. 199 (1960), in which a conviction for loitering and disorderly conduct was set aside as being supported by ‘‘no evidence whatever’’ that defendant had 

done anything. Cf. Johnson v. Florida, 391 U.S. 596 (1968) (no evidence that the 

defendant was ‘‘wandering or strolling around’’ in violation of vagrancy law). 184Fully applied, the principle would raise to constitutional status the concept 

of mens rea, and it would thereby constitutionalize some form of insanity defense 

as well as other capacity defenses. For a somewhat different approach, see Lambert

v. California, 355 U.S. 225 (1957) (due process denial for city to apply felon registration requirement to someone present in city but lacking knowledge of requirement). 

More recently, this controversy has become a due process matter, with the holding 

that the due process clause requires the prosecution to prove beyond a reasonable 

doubt the facts necessary to constitute the crime charged, Mullaney v. Wilbur, 421 

U.S. 684 (1975), raising the issue of the insanity defense and other such questions. 

See Rivera v. Delaware, 429 U.S. 877 (1976), Patterson v. New York, 432 U.S. 197, 

202–05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an Eighth Amendment proportionality case, the Court suggested in dictum that life imprisonment 

without possibility of parole of a recidivist who was an alcoholic, and all of whose 

crimes had been influenced by his alcohol use, was ‘‘unlikely to advance the goals 

of our criminal justice system in any substantial way.’’ 185 392 U.S. 514 (1968). The plurality opinion by Justice Marshall, joined by 

Justices Black and Harlan and Chief Justice Warren, interpreted Robinson as proscribing only punishment of ‘‘status,’’ and not punishment for ‘‘acts,’’ and expressed 

a fear that a contrary holding would impel the Court into constitutional definitions 

of such matters as actus reus, mens rea, insanity, mistake, justification, and duress. 

Id. at 532–37. Justice White concurred, but only because the record did not show 

that the defendant was unable to stay out of public; like the dissent, Justice White 

was willing to hold that if addiction as a status may not be punished neither can 

the yielding to the compulsion of that addiction, whether to narcotics or to alcohol. 

Id. at 548. Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to 

adopt a rule that ‘‘[c]riminal penalties may not be inflicted upon a person for being 

in a condition he is powerless to change.’’ That is, one under an irresistible compulsion to drink or to take narcotics may not be punished for those acts. Id. at 554, 

567.

dict without any requirement of a showing that a defendant had 

ever used narcotics within the jurisdiction of the State or had committed any act at all within the State’s power to proscribe, and because addiction is an illness which—however it is acquired—physiologically compels the victim to continue using drugs. The case 

could stand for the principle, therefore, that one may not be punished for a status in the absence of some act, 183 or it could stand 

for the broader principle that it is cruel and unusual to punish 

someone for conduct he is unable to control, a holding of far-reaching importance. 184 In Powell v. Texas, 185 a majority of the Justices 

took the latter view of Robinson, but the result, because of a view 

of the facts held by one Justice, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether the Eighth 

Amendment or the due process clauses will govern the requirement 

of the recognition of capacity defenses to criminal charges, or 

whether either will, remains to be decided in future cases. 

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186 445 U.S. 263 (1980). The opinion, by Justice Rehnquist, was concurred in by 

Chief Justice Burger and Justices Stewart, White, and Blackmun. Dissenting were 

Justices Powell, Brennan, Marshall, and Stevens. Id. at 285. 187 In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the 

Court summarily reversed a decision holding disproportionate a prison term of 40 

years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200. 188 Rummel, 445 U.S. at 275–82. The dissent deemed these three factors to be 

sufficiently objective to apply and thought they demonstrated the invalidity of the 

sentence imposed. Id. at 285, 295–303. 189 463 U.S. 277 (1983). The case, as Rummel, was decided by 5–4 vote, with 

the Rummel dissenters, joined by Justice Blackmun from the Rummel majority,

composing the majority, and with Justice O’Connor taking Justice Stewart’s place 

in opposition to holding the sentence invalid. Justice Powell wrote the opinion of the 

Court in Helm, and Chief Justice Burger wrote the dissent. 

ysis had been closely cabined in Rummel v. Estelle, 186 upholding a 

mandatory life sentence under a recidivist statute following a third 

felony conviction, even though the defendant’s three nonviolent 

felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital 

cases of limited value, and Weems was distinguished on the basis 

that the length of the sentence was of considerably less concern to 

the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments 

must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length 

rather than the seriousness of the offense, the choice is necessarily 

subjective. Therefore, the Rummel rule appeared to be that States 

may punish any behavior properly classified as a felony with any 

length of imprisonment purely as a matter legislative grace. 187 The

Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent 

was found not necessarily relevant to the seriousness of a crime, 

and the determination of what is a ‘‘small’’ amount of money, being 

so subjective, was a legislative task. In any event, the State could 

focus on recidivism, not the specific acts. Second, the comparison 

of punishment imposed for the same offenses in other jurisdictions 

was found unhelpful, differences and similarities being more subtle 

than gross, and in any case in a federal system one jurisdiction 

would always be more severe than the rest. Third, the comparison 

of punishment imposed for other offenses in the same State ignored 

the recidivism aspect. 188

Rummel was distinguished in Solem v. Helm, 189 the Court 

stating unequivocally that the cruel and unusual punishments 

clause ‘‘prohibits not only barbaric punishments, but also sentences 

1600 AMENDMENT 8—PUNISHMENT FOR CRIME 

190 463 U.S. at 284, 288. 191The final conviction was for uttering a no-account check in the amount of 

$100; previous felony convictions were also for nonviolent crimes described by the 

Court as ‘‘relatively minor.’’ 463 U.S. at 296–97. 192 463 U.S. at 297. 193 463 U.S. at 303. 194 463 U.S. at 292. 195For a suggestion that Eighth Amendment proportionality analysis may limit 

the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478 

U.S. 186, 197 (1986). 196 501 U.S. 957 (1991). 197 ‘‘Severe, mandatory penalties may be cruel, but they are not unusual in the 

constitutional sense.’’ 501 U.S. at 994. The Court’s opinion, written by Justice 

Scalia, then elaborated an understanding of ‘‘unusual’’—set forth elsewhere in a 

part of his opinion subscribed to only by Chief Justice Rehnquist—that denies the 

possibility of proportionality review altogether. Mandatory penalties are not unusual 

that are disproportionate to the crime committed,’’ and that 

‘‘[t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.’’ 190 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a 

small amount of money. 191 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed 

as ‘‘far more severe than the life sentence we described in 

Rummel.’’ 192 Rummel, the Court pointed out, had been eligible for 

parole after 12 years’ imprisonment, while Helm had only the possibility of executive clemency, characterized by the Court as ‘‘nothing more than a hope for ‘an ad hoc exercise of clemency.’’’ 193 In

Helm the Court also spelled out the ‘‘objective criteria’’ by which 

proportionality issues should be judged: ‘‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed 

on other criminals in the same jurisdiction; and (iii) the sentences 

imposed for commission of the same crime in other jurisdictions.’’ 194 Measured by these criteria Helm’s sentence was cruel 

and unusual. His crime was relatively minor, yet life imprisonment 

without possibility for parole was the harshest penalty possible in 

South Dakota, reserved for such other offenses as murder, manslaughter, kidnapping, and arson. In only one other state could he 

have received so harsh a sentence, and in no other state was it 

mandated. 195

The Court remained closely divided in holding in Harmelin v. 

Michigan 196 that a mandatory term of life imprisonment without 

possibility of parole was not cruel and unusual as applied to the 

crime of possession of more than 650 grams of cocaine. There was 

an opinion of the Court only on the issue of the mandatory nature 

of the penalty, the Court rejecting an argument that sentencers in 

non-capital cases must be allowed to hear mitigating evidence. 197

AMENDMENT 8—PUNISHMENT FOR CRIME 1601

in the constitutional sense because they have ‘‘been employed in various form 

throughout our Nation’s history.’’ This is an application of Justice Scalia’s belief that 

cruelty and unusualness are to be determined solely by reference to the punishment 

at issue, and without reference to the crime for which it is imposed. See id. at 975– 

78 (not opinion of Court—only Chief Justice Rehnquist joined this portion of the 

opinion). Because a majority of other Justices indicated in the same case that they 

do recognize at least a narrow proportionality principle (see id. at 996 (Justices Kennedy, O’Connor, and Souter concurring); id. at 1009 (Justices White, Blackmun, and 

Stevens dissenting); id. at 1027 (Justice Marshall dissenting)), the fact that three 

of those Justices (Kennedy, O’Connor, and Souter) joined Justice Scalia’s opinion on 

mandatory penalties should probably not be read as representing agreement with 

Justice Scalia’s general approach to proportionality. 198 Because of the ‘‘serious nature’’ of the crime, the 3-Justice plurality asserted 

that there was no need to apply the other Solem factors comparing the sentence to 

sentences imposed for other crimes in Michigan, and to sentences imposed for the 

same crime in other jurisdictions. 501 U.S. at 1004. Dissenting Justice White, joined 

by Justices Blackmun and Stevens (Justice Marshall also expressed agreement on 

this and most other points, id. at 1027), asserted that Justice Kennedy’s approach 

would ‘‘eviscerate’’ Solem. Id. at 1018. 199 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437 

U.S. 678, 685 (1978)). 200 452 U.S. at 347. 201 E.g., Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate medical neglect of a 

prisoner violates Eighth Amendment); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 

1968) (beating prisoner with leather strap violates Amendment); Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who alleged exposure to secondhand ‘‘environmental’’ tobacco smoke stated a cause of action under the Eighth Amendment). 202 E.g., Hutto v. Finney, 437 U.S. 678 (1978). 

As to the length of sentence, three majority Justices—Kennedy, 

O’Connor, and Souter—would recognize a narrow proportionality 

principle, but considered Harmelin’s crime severe and by no means 

grossly disproportionate to the penalty imposed. 198

Prisons and Punishment 

‘‘It is unquestioned that ‘[c]onfinement’ in a prison . . . is a form 

of punishment subject to scrutiny under the Eighth Amendment 

standards.’’ 199 ‘‘Conditions in prison must not involve the wanton 

and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. . . . Conditions . . . , alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. . . . But

conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that 

such conditions are restrictive and even harsh, they are part of the 

penalty that criminal offenders pay for their offenses against society.’’ 200 These general principles apply both to the treatment of individuals 201 and to the creation or maintenance of prison conditions that are inhumane to inmates generally. 202 Ordinarily there 

is both a subjective and an objective inquiry. Before conditions of 

confinement not formally meted out as punishment by the statute 

or sentencing judge can qualify as ‘‘punishment,’’ there must be a 

1602 AMENDMENT 8—PUNISHMENT FOR CRIME 

203Wilson v. Seiter, 501 U.S. 294 (1991). 204 501 U.S. at 303. Deliberate indifference in this context means something 

more than disregarding an unjustifiably high risk of harm that should have been 

known, as might apply in the civil context. Rather, it requires a finding that the 

responsible person acted in reckless disregard of a risk of which he or she was 

aware, as would generally be required for a criminal charge of recklessness. Farmer 

v. Brennan, 511 U.S. 825 (1994). 205Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment). 206 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (beating of a shackled prisoner resulted in bruises, swelling, loosened teeth, and a cracked dental plate). 207 309 F. Supp. 362 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971), district 

court ordered to retain jurisdiction until unconstitutional conditions corrected, 505 

F.2d 194 (8th Cir. 1974). The Supreme Court ultimately sustained the decisions of 

the lower courts in Hutto v. Finney, 437 U.S. 678 (1978). 208 Rhodes v. Chapman, 452 U.S. 337, 353–54 n.1 (1981) (Justice Brennan concurring) (collecting cases). See Note, Complex Enforcement: Unconstitutional Prison 

Conditions, 94 HARV. L. REV. 626 (1981). 209 Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337 

(1981). 210See, e.g., Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) (describing conditions of ‘‘horrendous overcrowding,’’ inadequate sanitation, infested food, and ‘‘rampant violence’’); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1981) (describing conditions 

‘‘unfit for human habitation’’). The primary issue in both Wolfish and Chapman was

that of ‘‘double-celling,’’ the confinement of two or more prisoners in a cell designed 

culpable, ‘‘wanton’’ state of mind on the part of prison officials. 203

In the context of general prison conditions, this culpable state of 

mind is ‘‘deliberate indifference’’; 204 in the context of emergency actions, e.g., actions required to suppress a disturbance by inmates, 

only a malicious and sadistic state of mind is culpable. 205 When excessive force is alleged, the objective standard varies depending 

upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and 

sadistically to cause harm. In the good-faith context, there must be 

proof of significant injury. When, however, prison officials ‘‘maliciously and sadistically use force to cause harm, contemporary 

standards of decency are always violated,’’ and there is no need to 

prove that ‘‘significant injury’’ resulted. 206

Beginning with Holt v. Sarver, 207 federal courts found prisons 

or entire prison systems violative of the cruel and unusual punishments clause, and broad remedial orders directed to improving 

prison conditions and ameliorating prison life were imposed in 

more than two dozen States. 208 But while the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the 

federal courts to proceed with deference to the decisions of state 

legislatures and prison administrators. 209 In both cases, the prisons involved were of fairly recent vintage and the conditions, while 

harsh, did not approach the conditions described in many of the 

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for one. In both cases, the Court found the record did not support orders ending the 

practice. 211 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Rufo v. Inmates of 

Suffolk County Jail, 502 U.S. 367 (1991) (allowing modification, based on a significant change in law or facts, of a 1979 consent decree that had ordered construction 

of a new jail with single-occupancy cells; modification was to depend upon whether 

the upsurge in jail population was anticipated when the decree was entered, and 

whether the decree was premised on the mistaken belief that single-celling is constitutionally mandated). 212Pub. L. No. 96–247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq. 213Pub. L. No. 104–134, title VIII, 110 Stat. 1321–66 et seq. 214Miller v. French, 530 U.S. 327 (2000). See also Porter v. Nussle, 122 S. Ct. 

983 (2002) (applying the Act’s requirement that prisoners exhaust administrative 

remedies). 215 Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations omitted). Constitutional restraint on school discipline, the Court ruled, is to be found in the due process clause if at all. 

cerns of federalism and of judicial restraint apparently actuated 

the Court to begin to curb the lower federal courts from ordering 

remedial action for systems in which the prevailing circumstances, 

given the resources States choose to devote to them, ‘‘cannot be 

said to be cruel and unusual under contemporary standards.’’ 211

Congress initially encouraged litigation over prison conditions 

by enactment in 1980 of the Civil Rights of Institutionalized Persons Act, 212 but then in 1996 added restrictions through enactment 

of the Prison Litigation Reform Act. 213 The Court upheld the latter 

law’s provision for an automatic stay of prospective relief upon the 

filing of a motion to modify or terminate that relief, ruling that 

separation of powers principles were not violated. 214

Limitation of the Clause to Criminal Punishments 

The Eighth Amendment deals only with criminal punishment, 

and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon 

schoolchildren for disciplinary purposes, the Court explained that 

the cruel and unusual punishments clause ‘‘circumscribes the 

criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it 

proscribes punishment grossly disproportionate to the severity of 

the crime; and third, it imposes substantive limits on what can be 

made criminal and punished as such.’’ 215 These limitations, the 

Court thought, should not be extended outside the criminal process.