EIGHTH AMENDMENT

FURTHER GUARANTEES IN CRIMINAL CASES

CONTENTS

Page

Excessive Bail ............................................................................................................................ 1709

Excessive Fines .......................................................................................................................... 1713

Cruel and Unusual Punishments ............................................................................................. 1714

Style of Interpretation ....................................................................................................... 1715

Application and Scope ........................................................................................................ 1716

Capital Punishment ........................................................................................................... 1717

General Validity and Guiding Principles .................................................................. 1719

Implementation of Procedural Requirements ........................................................... 1725

Limitations on Capital Punishment: Methods of Execution ................................... 1734

Limitations on Capital Punishment: Proportionality ............................................... 1737

Limitations on Capital Punishment: Diminished Capacity ..................................... 1739

Limitations on Capital Punishment: Equality of Application ................................. 1744

Limitations on Habeas Corpus Review of Capital Sentences ................................. 1745

Proportionality .................................................................................................................... 1750

Prisons and Punishment .................................................................................................... 1757

Limitation of the Clause to Criminal Punishments ........................................................ 1759

1707

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, expressed by the Court in

the same Term, reflect the ambiguity inherent in the phrase and

the absence of evidence regarding the intent of those who drafted

and who ratified the Eighth Amendment.3

The history of the bail controversy in England is crucial to understanding why the ambiguity exists.4 The Statute of Westminster

the First of 1275 5 set forth a detailed enumeration of those offenses that were bailable and those that were not, and, though supplemented by later statutes, it served for something like five and a

1 Stack 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.

3 The 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).

4 Still 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.

1709
half centuries as the basic authority.6 Darnel’s Case,

7

in which the

judges permitted the continued imprisonment of persons without bail

merely upon the order of the King, was one of the moving factors

in the enactment of the Petition of Right in 1628.8 The Petition cited

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

half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented,9 and Parliament reacted by enacting the Habeas Corpus Act of 1679,10 which established procedures for effectuating release from imprisonment and

provided penalties for judges who did not comply with the Act. That

avenue closed, the judges then set bail so high that it could not be

met, and Parliament responded by including in the Bill of Rights

of 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 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 to bail, or

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).

1710 AMENDMENT 8—PUNISHMENT FOR CRIME
whether the phrase “excessive bail” was meant to be a shorthand

expression of both rights.

Compounding the ambiguity is a distinctive trend in the United

States that had its origin in a provision of the Massachusetts Body

of Liberties of 1641: 15 guaranteeing bail to every accused person

except those charged with a capital crime or contempt in open court.

Copied in several state constitutions,16 this guarantee was contained in the Northwest Ordinance in 1787,17 along with a guarantee of moderate fines and against cruel and unusual punishments,

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

It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing

right to bail could be abridged.

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

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. 52 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1711
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, “[t]he

only arguable substantive limitation of the Bail Clause is that the

government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.” 23 “[D]etention prior to trial

of arrestees charged with serious felonies who are found after an

adversary hearing to pose a threat to the safety of individuals or to

the community which no condition of release can dispel” satisfies

this requirement.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,

appeal to the Supreme Court Justice sitting for that circuit.27 The

Amendment is apparently inapplicable to postconviction release pendamendments authorized pretrial detention for persons charged with 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).

20 Schall 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).

25 Stack v. Boyle, 342 U.S. 1, 4–6 (1951).

26 United States v. Salerno, 481 U.S. at 754.

27 Stack v. Boyle, 342 U.S. at 6–7.

1712 AMENDMENT 8—PUNISHMENT FOR CRIME
ing 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

28 Hudson v. Parker, 156 U.S. 277 (1895).

29 Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833).

30 Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921).

31 Tate 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

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

AMENDMENT 8—PUNISHMENT FOR CRIME 1713
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 the Cruel and Unusual

Punishments Clause one Member objected to “the import of [the words]

being too indefinite” and another Member said: “No cruel and unusual punishment is to be inflicted; it is sometimes necessary to

hang a man, villains often deserve whipping, and perhaps having

their ears cut off; but are we in the future to be prevented from

inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be

done, we ought not to be restrained from making necessary laws

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).

39 The 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.

1714 AMENDMENT 8—PUNISHMENT FOR CRIME
by any declaration of this 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 a punishment was “cruel and unusual” by looking to see if it or a sufficiently similar variant had

been considered “cruel and unusual” in 1789.45 In Weems v. United

States,

46 however, the Court 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 progress

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.

44 See Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Original

Meaning, 57 CALIF. L. REV. 839 (1969). Disproportionality, in any event, was used 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”).

45 Wilkerson 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). Chief Justice Rehnquist

subscribed 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.

AMENDMENT 8—PUNISHMENT FOR CRIME 1715
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

Well over a century ago, the Court began defining limits on the

scope of criminal punishments allowed under the Eighth Amendment, noting that while “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which

provides that cruel and unusual punishments shall not be inflicted,” “it is safe to affirm that punishments of torture,” such as

drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution.” 50 Nonetheless, in the context of capital punishment the Court

has upheld the use of a firing squad 51 and electrocution,52 generally holding that the Eighth Amendment prohibits punishments which

“involve the unnecessary and wanton infliction of pain.” 53 In two

more recent cases, the Supreme Court held that the lethal injection protocols of the Commonwealth of Kentucky and the State of

Oklahoma each withstood scrutiny under the Eighth Amendment,

finding that neither protocol presented a “substantial risk of serious harm” or an “objectively intolerable risk of harm.” 54

Divestiture of the citizenship of a natural born citizen was held

to be cruel and unusual punishment in Trop v. Dulles.

55 The Court

viewed divestiture as a penalty more cruel and “more primitive than

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

passage was later repeated, with 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,

536 U.S. 304, 311–12 (2002).

49 See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and

Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978).

50 See Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879).

51 Id. at 137–38.

52 See In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when

they involve torture or a lingering death; but the punishment of death is not cruel,

within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of

life.”); see also Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).

53 See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).

54 See Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (upholding Kentucky’s use of a three-drug cocktail consisting of an anesthetic (sodium thiopental),

a muscle relaxant, and an agent that induced cardiac arrest); see also Glossip v.

Gross, 576 U.S. ___, No. 14–7955, slip op. (2015) (upholding Oklahoma’s use of a

three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).

55 356 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 denation1716 AMENDMENT 8—PUNISHMENT FOR CRIME
torture,” because 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.” 56

Capital Punishment

The Court’s 1972 decision in Furman v. Georgia,

57 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.58 Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 follow-up cases that reviewed

state laws revised in light of Furman reaffirmed the constitutionality of capital punishment 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

alization 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.

56 356 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, 536 U.S. 730, 738 (2002).

57 408 U.S. 238 (1972).

58 See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV.

L. REV. 355 (1995).

AMENDMENT 8—PUNISHMENT FOR CRIME 1717
procedural and substantive opportunities for delay and defeat of the

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

in administering capital sentencing. The early post-Furman stage

involving creation of procedural protections for capital defendants

that were premised on a “death is different” rationale.59 Later, the

Court grew increasingly impatient with the delays that were made

possible through procedural protections, especially those associated

with federal habeas corpus review.60 Having consistently held that

capital punishment is not inherently unconstitutional, the Court

seemed 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 at first trumped a death-is-different

approach.61 Then, in In re Troy Anthony Davis,

62 the Court found a

death-row convict with a claim of actual innocence to be entitled to

a District Court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer,

“refuse[d] to endorse” Justice Scalia’s reasoning (in a dissent joined

by Justice Thomas) that would read the Constitution to permit the

execution of a convict “who possesses new evidence conclusively and

definitively proving, beyond any scintilla of doubt, that he is an innocent man.”

59 See, 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.”

60 See, 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).

61 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, and the enormous burden that having to retry

cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. at 417.

In a subsequent part of the opinion, however, the Court assumed for the sake of

argument that “a truly persuasive demonstration of ‘actual innocence’ made after

trial would render the execution of a defendant unconstitutional,” and it imposed a

high standard for making this showing. 506 U.S. at 417–419.

62 557 U.S. ___, No. 08–1443 (2009).

1718 AMENDMENT 8—PUNISHMENT FOR CRIME
The writ has also been restricted statutorily.63

Changed membership on the Court has had an effect. Gone from

the Court are several Justices who believed that all capital punishment constitutes cruel and unusual punishment, often resulting in

consistent votes to issue stays against any challenged death sentence.64 While two current members of the Court have recently concluded that the “death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment,’”

65 a majority

of the Court has held that it is “settled that capital punishment is

constitutional,” resulting in most challenges focusing on how the death

penalty is applied, such as the consideration of aggravating and mitigating circumstances and the appropriate scope of federal review.66

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.” 67 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 68 culminated in what appeared to be a decisive rejec63 See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

104–132, 110 Stat. 1214.

64 For example, the position of Justices Brennan and Marshall that the “death

penalty is unconstitutional in all circumstances” resulted in two automatic votes against

any challenged death sentence during their time on the Court. See, e.g., Lenhard v.

Wolff, 444 U.S. 807, 808 (1979) (Brennan & Marshall, JJ., dissenting). Justice Blackmun,

who retired in 1994, concluded late in his career 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.” See Callins v. Collins, 510 U.S. 1141, 1159 (1994) (Blackmun,

J., dissenting). Justice Stevens, who retired from the Court in 2010, concluded in a

2008 case that the death penalty is “patently excessive and cruel and unusual punishment violative of the Eighth Amendment” because of what he perceived as its

“negligible returns.” See Baze v. Rees, 553 U.S. 35, 86 (2008) (Stevens, J., concurring) (internal citations and quotations omitted). Nonetheless, because the “Court

has held the death penalty constitutional” and out of “respect” for the Court’s precedents, Justice Stevens’ remaining years on the Court did not yield automatic votes

against the death penalty akin to those of Justices Brennan, Marshall, and Blackmun.

65 See Glossip v. Gross, 576 U.S. ___, No. 14–7955, slip op. at 2 (2015) (Breyer

& Ginsburg, JJ., dissenting).

66 See id. at 4 (Alito, J., joined by Roberts, C.J., and Scalia, Kennedy, and Thomas,

JJ.).

67 356 U.S. 86, 99 (1958).

68 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1719
tion of the attack in McGautha v. California.

69 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 70 that the death penalty, at least as administered, violated the Eighth Amendment. There was no unifying opinion of the Court in Furman; the five Justices in the majority each

approached the matter from a different angle in a separate concurring opinion. Two Justices concluded that the death penalty was

“cruel and unusual” per se because the imposition of capital punishment “does not comport with human dignity” 71 or because it is “morally unacceptable” and “excessive.” 72 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.73 Two Justices concluded that capital punishment was

both “cruel” and “unusual” because it was applied in an arbitrary,

“wanton,” and “freakish” manner 74 and so infrequently that it served

no justifying end.75

heard the case to consider whether the Constitution permitted the imposition of death

“on a convicted rapist who has neither taken nor endangered human life,” and presented a line of argument questioning the general validity of the death penalty under the Eighth Amendment. The Court addressed exclusion of death-scrupled jurors

in Witherspoon v. Illinois, 391 U.S. 510 (1968). Witherspoon and subsequent cases

explicating it are discussed under Sixth Amendment—Impartial Jury.

69 402 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; although bifurcated proceedings might be desirable, they were not required by due process.

70 408 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.

71 408 U.S. at 257 (Justice Brennan).

72 408 U.S. at 314 (Justice Marshall).

73 408 U.S. at 240 (Justice Douglas).

74 408 U.S. at 306 (Justice Stewart).

75 408 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.

1720 AMENDMENT 8—PUNISHMENT FOR CRIME
Because only two of the Justices in Furman thought the death

penalty to be invalid in all circumstances, those who wished to reinstate the penalty concentrated upon drafting statutes that would

correct the faults identified in the other three majority opinions.76

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.77 Instead, although the Court seemed

firmly on the path to the conclusion that only criminal acts that

result in the deliberate taking of human life may be punished by

the state’s taking of human life,78 it chose several different paths

in attempting to delineate the acceptable procedural devices that

must be instituted in order that death may be constitutionally pronounced and carried out. To summarize, the Court determined that

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

76 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).

77 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”).

78 On crimes not involving the taking of life or the actual commission of the

killing by a defendant, see Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult

woman); Kennedy v. Louisiana, 128 S. Ct. 2461 (2008) (rape of an eight-year-old

child); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder where defendant aided

and abetted a robbery during which a murder was committed but did not himself

kill, attempt to kill, or intend that a killing would take place). Compare Enmund

with Tison v. Arizona, 481 U.S. 137 (1987) (death sentence upheld where defendants

did not kill but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial). Those cases in which a large threat,

though uneventuated, to the lives of many may have been present, as in airplane

hijackings, may constitute an exception to the Court’s narrowing of the crimes for

which capital punishment may be imposed. The federal hijacking statute, 49 U.S.C.

§ 46502, imposes the death penalty only when a death occurs during commission of

the hijacking. By contrast, the treason statute, 18 U.S.C. § 2381, permits the death

penalty in the absence of a death, and represents a situation in which great and

fatal danger might be present. But the treason statute also constitutes a crime against

the state, which may be significant. In Kennedy v. Louisiana, 128 S. Ct. 2641, 2659

(2008), in overturning a death sentence imposed for the rape of a child, the Court

wrote, “Our concern here is limited to crimes against individual persons. We do not

address, for example, crimes defining and punishing treason, espionage, terrorism,

and drug kingpin activity, which are offenses against the State.”

AMENDMENT 8—PUNISHMENT FOR CRIME 1721
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.

79 Divisions among the Justices, however, made it difficult to

ascertain the form that permissible statutory schemes may take.80

Because the three Justices in the majority in Furman who did

not altogether reject the death penalty thought the problems with

the system revolved about discriminatory and arbitrary imposition,81 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.82

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

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

that reenactment of capital punishment statutes by 35 states precluded the Court from concluding that this form of penalty was no

longer acceptable to a majority of the American people. Rather, they

79 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).

80 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).

81 Thus, Justice Douglas thought the penalty had been applied discriminatorily,

Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart thought it “wantonly and

. . . freakishly imposed,” id. at 310, and Justice White thought it had been applied

so infrequently that it served no justifying end. Id. at 313.

82 The principal opinion was in Gregg v. Georgia, 428 U.S. 153 (1976) (upholding statute providing for a bifurcated proceeding separating the guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia

Supreme Court). Statutes of two other states were similarly sustained, Proffitt v.

Florida, 428 U.S. 242 (1976) (statute generally similar to Georgia’s, with the exception that the trial judge, rather than jury, was directed to weigh statutory aggravating factors against statutory mitigating factors), and Jurek v. Texas, 428 U.S. 262

(1976) (statute construed as narrowing death-eligible class, and lumping mitigating

factors into consideration of future dangerousness), while those of two other states

were invalidated, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v.

Louisiana, 428 U.S. 325 (1976) (both mandating death penalty for first-degree murder).

1722 AMENDMENT 8—PUNISHMENT FOR CRIME
concluded, a large proportion of American society continued to regard it as an appropriate and necessary criminal sanction. Neither

is it possible, the Court continued, to rule that the death penalty

does not comport with the basic concept of human dignity at the

core of the Eighth Amendment. Courts are not free to substitute

their own judgments for the people and their elected representatives. A death penalty statute, just as all other statutes, comes before the courts bearing a presumption of validity that can be overcome only upon a strong showing by those who attack its

constitutionality. Whether in fact the death penalty validly serves

the permissible functions of retribution and deterrence, the judgments of the state legislatures are that it does, and those judgments are entitled to deference. Therefore, the infliction of death

as a punishment for murder is not without justification and is not

unconstitutionally severe. Nor is the punishment of death disproportionate to the crime being punished, murder.83

Second, however, a different majority concluded that statutes

mandating the imposition of death for crimes classified as firstdegree murder violate the Eighth Amendment. A review of history,

traditional usage, legislative enactments, and jury determinations

led the plurality to conclude that mandatory death sentences had

been rejected by contemporary standards. Moreover, mandatory sentencing precludes the individualized “consideration of the character

and record of the . . . offender and the circumstances of the particular offense” that “the fundamental respect for humanity underlying

the Eighth Amendment” requires in capital cases.84

A third principle established by the 1976 cases was that the procedure by which a death sentence is imposed must be structured

so as to reduce arbitrariness and capriciousness as much as possible.85 What emerged from the prevailing plurality opinion in these

83 Gregg v. Georgia, 428 U.S. 153, 168–87 (1976) (Justices Stewart, Powell, and

Stevens); Roberts v. Louisiana, 428 U.S. 325, 350–56 (1976) (Justices White, Blackmun,

Rehnquist, and Chief Justice Burger). The views summarized in the text are those

in the Stewart opinion in Gregg. Justice White’s opinion basically agrees with this

opinion in concluding that contemporary community sentiment accepts capital punishment, but did not endorse the proportionality analysis. Justice White’s Furman

dissent and those of Chief Justice Burger and Justice Blackmun show a rejection of

proportionality analysis. Justices Brennan and Marshall dissented, reiterating their

Furman views. Gregg, 428 U.S. at 227, 231.

84 Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428

U.S. 325 (1976). Justices Stewart, Powell, and Stevens composed the plurality, and

Justices Brennan and Marshall concurred on the basis of their own views of the

death penalty. Id. at 305, 306, 336.

85 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1723
cases are requirements (1) that the sentencing authority, jury or

judge, 86 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; 87 (2) that

to prevent jury prejudice on the issue of guilt there be a separate

proceeding after conviction at which evidence relevant to the sentence, mitigating and aggravating, be presented; 88 (3) that special

forms of appellate review be provided not only of the conviction but

also of the sentence, to ascertain that the sentence was fairly imposed both in light of the facts of the individual case and by comapplicable to these cases and to Lockett. See Marks v. United States, 430 U.S. 188,

192–94 (1977).

86 The Stewart plurality noted its belief that jury sentencing in capital cases

performs an important social function in maintaining the link between contemporary community values and the penal system, but agreed that sentencing may constitutionally be vested in the trial judge. Gregg v. Georgia, 428 U.S. 153, 190 (1976).

Subsequently, however, the Court issued several opinions holding that the Sixth Amendment right to a jury trial is violated if a judge makes factual findings (e.g., as to the

existence of aggravating circumstances) upon which a death sentence is based. Hurst

v. Florida, 577 U.S. ___, No. 14–7505, slip op. at 1–2 (2016); Ring v. Arizona, 536

U.S. 584 (2002). Notably, one Justice in both cases would have found that the Eighth

Amendment—not the Sixth Amendment—requires that “a jury, not a judge, make

the decision to sentence a defendant to death.” Ring, 536 U.S. at 614 (Breyer, J.,

concurring in the judgment). See also Hurst, slip op. at 1 (Breyer, J., concurring in

the judgment).

87 Gregg v. Georgia, 428 U.S. 153, 188–95 (1976). Justice White seemed close to

the plurality on the question of standards, id. at 207 (concurring), but while Chief

Justice Burger and Justice Rehnquist joined the White opinion “agreeing” that the

system under review “comports” with Furman, Justice Rehnquist denied the constitutional requirement of standards in any event. Woodson v. North Carolina, 428 U.S.

280, 319–21 (1976) (dissenting). In McGautha v. California, 402 U.S. 183, 207–08

(1971), the Court had rejected the argument that the absence of standards violated

the Due Process Clause. On the vitiation of 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 a doctor testifies

about his conclusions with respect to future dangerousness).

88 Gregg v. Georgia, 428 U.S. 153, 163, 190–92, 195 (1976) (plurality opinion).

McGautha v. California, 402 U.S. 183 (1971), had rejected a due process requirement of bifurcated trials, and the Gregg plurality did not expressly require it under

the Eighth Amendment. But the plurality’s emphasis upon avoidance of arbitrary

and capricious sentencing by juries seems to look inevitably toward bifurcation. The

dissenters in Roberts v. Louisiana, 428 U.S. 325, 358 (1976), rejected bifurcation and

viewed the plurality as requiring it. All states with post-Furman capital sentencing

statutes took the cue by adopting bifurcated capital sentencing procedures, and the

Court has not been faced with the issue again. See Raymond J. Pascucci, et al., Special Project, Capital Punishment in 1984: Abandoning the Pursuit of Fairness and

Consistency, 69 CORNELL L. REV. 1129, 1224–25 (1984).

1724 AMENDMENT 8—PUNISHMENT FOR CRIME
parison with the penalties imposed in similar cases.89 The Court

later ruled, however, that proportionality review is not constitutionally required.90 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.” 91

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.92 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 requiring that at least one such aggravating circumstance be found before the death penalty is imposed. The

Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer, the desired result being a principled way to

distinguish cases in which the death penalty should be imposed from

cases in which it should not be. Thus, the Court invalidated a capital sentence based upon a jury finding that the murder was “outrageously or wantonly vile, horrible, and inhuman,” reasoning that

“a person of ordinary sensibility could fairly [so] characterize almost every murder.” 93 Similarly, an “especially heinous, atrocious,

or cruel” aggravating circumstance was held to be unconstitutionally vague.94 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.95

89 Gregg v. Georgia, 428 U.S. 153, 195, 198 (1976) (plurality); Proffitt v. Florida,

428 U.S. 242, 250–51, 253 (1976) (plurality); Jurek v. Texas, 428 U.S. 262, 276 (1976)

(plurality).

90 Pulley v. Harris, 465 U.S. 37 (1984).

91 465 U.S. at 50.

92 Ring v. Arizona, 536 U.S. 584 (2002). See also Hurst v. Florida, 577 U.S. ___,

No. 14–7505, slip op. at 1–2 (2016).

93 Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion).

94 Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988). But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the

circumstances of the crime, the defendant’s prior criminal activity, and the age of

the defendant, without further guidance, is not unconstitutionally vague).

95 Walton 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1725
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,96 and for prison inmates convicted of murder

while serving a life sentence without possibility of parole.97 Flaws

related to those attributed to mandatory sentencing statutes were

found in a state’s structuring of its capital system to deny the jury

the option of convicting on a lesser included offense, when doing so

would be justified by the evidence.98 Because the jury had to choose

between conviction or acquittal, the statute created the risk that

the jury would convict because it felt the defendant deserved to be

punished or acquit because it believed death was too severe for the

particular crime, when at that stage the jury should concentrate

on determining whether the prosecution had proved defendant’s guilt

beyond a reasonable doubt.99

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 “coldblooded, pitiless slayer” cures vagueness); Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a narrowing construction because it had done

so numerous times).

96 Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different

defendant from the first Roberts v. Louisiana case, 428 U.S. 325 (1976).

97 Sumner v. Shuman, 483 U.S. 66 (1987).

98 Beck v. Alabama, 447 U.S. 625 (1980). The statute made the guilt determination “depend . . . on the jury’s feelings as to whether or not the defendant deserves

the death penalty, without giving the jury any standards to guide its decision on

this issue.” Id. at 640. Cf. Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity is present, however, if failure to instruct on lesser included offenses

is due to the defendant’s refusal to waive the statute of limitations for those lesser

offenses. Spaziano v. Florida, 468 U.S. 447 (1984). See Hopkins v. Reeves, 524 U.S.

88 (1998) (defendant charged with felony murder did not have right to instruction

as to second degree murder or manslaughter, where Nebraska traditionally did not

consider these lesser included offenses). See also Schad v. Arizona, 501 U.S. 624 (1991)

(first-degree murder defendant, who received instruction on lesser included offense

of second-degree murder, was not entitled to a jury instruction on the lesser included offense of robbery). In Schad the Court also upheld Arizona’s characterization of first degree murder as a single crime encompassing two alternatives, premeditated murder and felony-murder, and not requiring jury agreement on which alternative

had occurred.

99 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 instruc1726 AMENDMENT 8—PUNISHMENT FOR CRIME
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.” 100 Discretion was channeled and rationalized. But, in Lockett v. Ohio,

101 a Court plurality determined that

a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in

the law. In other words, the jury’s discretion was curbed too much.

“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case,

not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a

sentence less than death.” 102 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.” 103 Lockett and Woodson have since been endorsed by a Court

tion 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).

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

101 438 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.

102 438 U.S. at 604 (emphasis in original). Although, under the Eighth and Fourteenth Amendments, the state must bear the burden “to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial

to call for leniency.” Walton v. Arizona, 497 U.S. 639, 650 (1990) (plurality). A fortiori, a statute “may direct imposition of the death penalty when the State has proved

beyond a reasonable doubt that mitigators do not outweigh aggravators, including

where the aggravating circumstances and mitigating circumstances are in equipoise.” Kansas v. Marsh, 548 U.S. 163, 173 (2006).

103 Woodson 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).

AMENDMENT 8—PUNISHMENT FOR CRIME 1727
majority.104 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.105

The Court has explained this apparent contradiction as constituting recognition that “individual culpability is not always measured by the category of crime committed,” 106 and as the product

of an attempt to pursue the “twin objectives” of “measured, consistent application” of the death penalty and “fairness to the accused.” 107 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,” 108 while consideration of all miti104 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.

105 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, 662 (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).

106 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)).

107 Eddings v. Oklahoma, 455 U.S. 104, 110–11 (1982).

108 Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing function may be

served at the sentencing phase or at the guilt phase; the fact that an aggravating

1728 AMENDMENT 8—PUNISHMENT FOR CRIME
gating 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.” 109 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.” 110

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.111 States may also cure some constitutional errors on appeal through operation of “harmless error”

rules and reweighing of evidence by the appellate court.112 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.113

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).

109 Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)).

110 Zant v. Stephens, 462 U.S. 862, 879 (1983).

111 See, e.g., Johnson v. Texas, 509 U.S. 350 (1993) (consideration of youth as a

mitigating factor may be limited to jury estimation of probability that defendant

would commit future acts of violence).

112 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).

113 As such, the Court has opined that it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of

evidence at capital sentencing proceedings.” See Romano v. Oklahoma, 512 U.S. 1,

11–12 (1994). Instead, the test for a constitutional violation attributable to evidence

improperly admitted at a capital sentencing proceeding is whether the evidence “so

infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Id. at 12. As a consequence, the

Court found nothing constitutionally impermissible with a state having joint sentencing proceedings for two defendants whose underlying conviction arose from the same

single chain of events. See Kansas v. Carr, 577 U.S. ___, No. 14–449, slip op. at

15–16 (2016) (rejecting the argument that joinder of two defendants was fundamentally unfair because evidence that one defendant unduly influenced another defendant’s conduct may have “infected” the jury’s decision making). Indeed, the Court

approvingly noted that joint proceedings before a single jury for defendants that commit the same crimes are “not only permissible but are often preferable” in order to

avoid the “wanto[n] and freakis[h]” imposition of the death sentence. See id. at 17

(citing Gregg v. Georgia, 428 U.S. 153, 206–207 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.)).

AMENDMENT 8—PUNISHMENT FOR CRIME 1729
While holding fast to the Lockett requirement that sentencers

be allowed to consider all mitigating evidence,114 the Court has upheld state statutes that control the relative weight that the sentencer

may accord to aggravating and mitigating evidence.115 “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.116 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,117 or

if the jury finds that aggravating circumstances outweigh mitigating circumstances.118 And a court may instruct that the jury “must

not be swayed by mere sentiment, conjecture, sympathy, passion,

114 See, e.g., Hitchcock v. Dugger, 481 U.S. 393 (1987) (instruction limiting jury

to consideration of mitigating factors specifically enumerated in statute is invalid);

Penry v. Lynaugh, 492 U.S. 302 (1989) (jury must be permitted to consider the defendant’s evidence of mental retardation and abused background outside of context

of deliberateness or assessment of future dangerousness); Skipper v. South Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant’s good conduct in jail denied defendant his Lockett right to introduce all mitigating evidence); Abdul-Kabir

v. Quarterman, 550 U.S. 233 (2007) (jury must be permitted to consider the defendant’s evidence of childhood neglect and mental illness damage outside of the context of assessment of future dangerousness); Brewer v. Quarterman, 550 U.S. 286

(2007) (same). But cf. Franklin v. Lynaugh, 487 U.S. 164 (1988) (consideration of

defendant’s character as revealed by jail behavior may be limited to context of assessment of future dangerousness).

115 “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).

116 Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990).

117 494 U.S. at 307.

118 Boyde v. California, 494 U.S. 370 (1990). A court is not required give a jury

instruction expressly directing the jury to consider mitigating circumstance, as long

as the instruction actually given affords the jury the discretion to take such evidence into consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). In this vein,

the Court has held that capital sentencing courts are not obliged to inform the jury

affirmatively that mitigating circumstances lack the need for proof beyond a reasonable doubt. See Kansas v. Carr, 577 U.S. ___, No. 14–449, slip op. at 11 (2016) (noting that ambiguity in capital sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged

instruction in a way that prevents consideration of constitutionally relevant evidence). By the same token, a court did not offend the Constitution by directing the

jury’s attention to a specific paragraph of a constitutionally sufficient instruction in

response to the jury’s question about proper construction of mitigating circumstances. Weeks v. Angelone, 528 U.S. 225 (2000). Nor did a court offend the Constitution by instructing the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime,” without specifying that such circumstance need not

be a circumstance of the crime, but could include “some likelihood of future good

conduct.” This was because the jurors had heard “extensive forward-looking evi1730 AMENDMENT 8—PUNISHMENT FOR CRIME
prejudice, public opinion, or public feeling,” because in essence the

instruction merely cautions the jury not to base its decision “on factors not presented at the trial.” 119 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.120 Due process considerations can also

come into play; if the state argues for the death penalty based on

the defendant’s future dangerousness, due process requires that the

jury be informed if the alternative to a death sentence is a life sentence without possibility of parole.121

What is the effect on a death sentence if an “eligibility factor”

(a factor making the defendant eligible for the death penalty) or an

“aggravating factor” (a factor, to be weighed against mitigating factors, in determining whether a defendant who has been found eligible for the death penalty should receive it) is found invalid? In

Brown v. Sanders, the Court announced “the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will

render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give

aggravating weight to the same facts and circumstances.” 122

dence,” and it was improbable that they would believe themselves barred from considering it. Ayers v. Belmontes, 549 U.S. 7, 10, 15, 16 (2006).

119 California v. Brown, 479 U.S. 538, 543 (1987).

120 Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S.

433 (1990). Compare Smith v. Spisak, 558 U.S. ___, No. 08–724, slip op. at 2–9 (2010)

(distinguishing jury instructions in Mills from instructions directing each juror to

independently assess any mitigating factors before jury as a whole balanced the weight

of mitigating evidence against each aggravating factor, with unanimity required before balance in favor of an aggravating factor may be found).

121 Simmons v. South Carolina, 512 U.S. 154 (1994). See also Lynch v. Arizona,

578 U.S. ___, No. 15–8366, slip op. at 3–4 (2016) (holding that the possibility of

clemency and the potential for future “legislative reform” does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002)

(concluding that a prosecutor need not express an intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36, 40

(2001) (holding that an amended South Carolina law still runs afoul of Simmons).

122 546 U.S. 212, 220 (2006). In some states, “the only aggravating factors permitted to be considered by the sentencer [are] the specified eligibility factors.” Id. at

217. These are known as weighing states; non-weighing states, by contrast, are those

that permit “the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors.” Id. Prior to Brown v. Sanders, in weighing states, the

Court deemed “the sentencer’s consideration of an invalid eligibility factor” to require “reversal of the sentence (unless a state appellate court determined the error

was harmless or reweighed the mitigating evidence against the valid aggravating

factors).” Id.

AMENDMENT 8—PUNISHMENT FOR CRIME 1731
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,123 or on a trial judge’s

consideration of improper aggravating circumstances.124 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.125 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.126 By contrast, where there is a possibility that the jury’s reliance on a “totally irrelevant” factor (defendant had served time pursuant to an

invalid conviction subsequently vacated) may have been decisive in

balancing aggravating and mitigating factors, a death sentence may

not stand notwithstanding the presence of other aggravating factors.127

In Oregon v. Guzek, the Court could “find nothing in the Eighth

or Fourteenth Amendments that provides a capital defendant a right

to introduce,” at sentencing, new evidence, available to him at the

time of trial, “that shows he was not present at the scene of the

crime.” 128 Although “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as

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

and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” such evidence is a

traditional concern of sentencing because it tends to show “how, not

whether,” the defendant committed the crime.129 Alibi evidence, by

contrast, concerns “whether the defendant committed the basic crime,”

123 Zant v. Stephens, 462 U.S. 862 (1983).

124 Barclay v. Florida, 463 U.S. 954 (1983).

125 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).

126 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).

127 Johnson v. Mississippi, 486 U.S. 578 (1988).

128 546 U.S. 517, 523 (2006).

129 546 U.S. at 524, 526 (Court’s emphasis deleted in part).

1732 AMENDMENT 8—PUNISHMENT FOR CRIME
and “thereby attacks a previously determined matter in a proceeding [i.e., sentencing] at which, in principle, that matter is not at

issue.” 130

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

be made in an arbitrary manner.” 131 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.132 “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.” 133 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

130 546 U.S. at 526.

131 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.

132 Payne 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.

133 501 U.S. at 827. Overruling of Booth may have been unnecessary in Payne,

because 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.

AMENDMENT 8—PUNISHMENT FOR CRIME 1733
loss to the victim’s family and to society which has resulted from

the defendant’s homicide.” 134

Limitations on Capital Punishment: Methods of Execution.— Throughout the history of the United States, various methods of execution have been deployed by the states in carrying out

the death penalty. In the early history of the nation, hanging was

the “nearly universal form of execution.” 135 In the late 19th century and continuing into the 20th century, the states began adopting electrocution as a substitute for hanging based on the “wellgrounded belief that electrocution is less painful and more humane

than hanging.” 136 And by the late 1970s, following Gregg, states began adopting statutes allowing for execution by lethal injection, perceiving lethal injection to be a more humane alternative to electrocution or other popular pre-Gregg means of carrying out the death

penalty, such as firing squads or gas chambers.137 Today the overwhelming majority of the states that allow for the death penalty

use lethal injection as the “exclusive or primary method of execution.” 138

Despite a national evolution over the past two hundred years

with respect to the methods deployed in carrying out the death penalty, the choice to adopt arguably more humane means of capital

punishment has not been the direct result of a decision from the

Supreme Court. In fact, while the Court has broadly articulated that

there are some limits to the methods that can be employed in carrying out death sentences (such as torturing someone to death),139

the Supreme Court has “never invalidated a State’s chosen procedure” for carrying out the death penalty as a violation of the Eighth

Amendment.140 In 1878, the Court, relying on a long history of using firing squads in carrying out executions in military tribunals,

held that the “punishment of shooting as a mode of executing the

death penalty” did not constitute a cruel and unusual punishment.141 Twelve years later, the Court upheld the use of the newly

created electric chair, deferring to the judgment of the New York

state legislature and finding that it was “plainly right” that electro134 501 U.S. at 822 (citation omitted).

135 See State v. Frampton, 627 P. 2d 922, 934 (Wash. 1981).

136 See Malloy v. South Carolina, 237 U.S. 180, 185 (1915).

137 See Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion).

138 Id.

139 See Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879) (noting in dicta that certain forms of torture, such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by . . . [the] Constitution”).

140 See Baze, 553 U.S. at 48 (plurality opinion).

141 See Wilkerson, 99 U.S. at 134–35.

1734 AMENDMENT 8—PUNISHMENT FOR CRIME
cution was not “inhuman and barbarous.” 142 Fifty-seven years later,

a plurality of the Court concluded that it would not be “cruel and

unusual” to execute a prisoner whose first execution failed due to a

mechanical malfunction, as an “unforeseeable accident” did not amount

to the “wanton infliction of pain” barred by the Eighth Amendment.143

The declaration in Trop that the Eighth Amendment “must draw

its meaning from the evolving standards of decency that mark the

progress of a maturing society” 144 and the continued reliance on

that declaration by a majority of the Court in several key Eighth

Amendment cases 145 set the stage for potential “method of execution” challenges to the newest mode for the death penalty: lethal

injection. Following several decisions clarifying the proper procedural mechanism to raise challenges to methods of execution,

146 the

Court, in Baze v. Rees, rejected a method of execution challenge to

Kentucky’s lethal injection protocol, a three-drug protocol consisting of (1) an anesthetic that would render a prisoner unconscious;

(2) a muscle relaxant; and (3) an agent that would induce cardiac

arrest.147 A plurality opinion, written by Chief Justice Roberts and

joined by Justices Kennedy and Alito, concluded that to constitute

cruel and unusual punishment, a particular method for carrying out

the death penalty must present a “substantial” or “objectively intolerable” risk of harm.148 In so concluding, the plurality opinion rejected the view that a prisoner could succeed on an Eighth Amendment method of execution challenge by merely demonstrating that

a “marginally” safer alternative existed, because such a standard

would “embroil” the courts in ongoing scientific inquiries and force

courts to second guess the informed choices of state legislatures respecting capital punishment.149 As a result, the plurality reasoned

that to address a “substantial risk of serious harm” effectively, the

142 See In re Kemmler, 136 U.S. 436, 447 (1890).

143 See Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion). Justice Frankfurter concurred in judgment, providing the fifth vote for

the Court’s judgment. Id. at 466 (Frankfurter, J., concurring). He grounded his decision on whether the Eighth Amendment had been incorporated against the states

through the Fourteenth Amendment, ultimately concluding that Louisiana’s choice

of execution cannot be said to be “repugnant to the conscience of mankind.” Id. at

471.

144 See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).

145 See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 419 (2008); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Gregg v.

Georgia, 428 U.S. 153, 173 (1976) (joint opinion).

146 See, e.g., Hill v. McDonough, 547 U.S. 573 (2006) (ruling that a challenge to

the constitutionality of an execution method could be brought as a civil rights claim

under 28 U.S.C. § 1983); Nelson v. Campbell, 541 U.S. 637 (2004) (same).

147 553 U.S. 35, 44 (2008).

148 Id. at 50.

149 Id. at 51.

AMENDMENT 8—PUNISHMENT FOR CRIME 1735
prisoner must propose an alternative method of execution that is

feasible, can be readily implemented, and can significantly reduce

a substantial risk of severe pain.150 Given the “heavy burden” that

the plurality placed on those pursuing an Eighth Amendment method

of execution claim, the plurality upheld Kentucky’s protocol in light

of (1) the consensus of state lethal injection procedures; (2) the safeguards Kentucky put in place to protect against any risks of harm;

and (3) the lack of any feasible, safer alternative to the three-drug

protocol.151 Four other Justices, for varying reasons, concurred in

the judgment of the Court.152

Seven years later, in a seeming reprise of the Baze litigation, a

majority of the Court in Glossip v. Gross formally adopted the Baze

plurality’s reasoning with respect to Eighth Amendment claims involving methods of execution, resulting in the rejection of a challenge to Oklahoma’s three-drug lethal injection protocol.153 Following Baze, anti-death penalty advocates successfully persuaded

pharmaceutical companies to stop providing states with the anesthetic that constituted the first of the three drugs used in the protocol challenged in the 2008 case, resulting in several states, including Oklahoma, substituting a sedative called midazolam in the

protocol.154 In Glossip, the Court held that Oklahoma’s use of

midazolam in its execution protocol did not violate the Eighth Amendment, because the challengers had failed to present a known and

available alternative to midazolam and did not adequately demonstrate that the drug was ineffective in rendering a prisoner insensate to pain.155 Ultimately, given the holdings in Baze and Glossip,

and the burden those cases imposed upon the plaintiffs challenging

a state’s chosen method of execution on Eighth Amendment grounds,

it appears that only those modes of the death penalty that demonstrably result in substantial risks of harm for the prisoner relative

to viable alternatives can be challenged as unconstitutional, a stan150 Id. at 52.

151 Id. at 53–61.

152 Justice Stevens, while announcing his skepticism regarding the constitutionality of the death penalty as a whole, concluded that, based on existing precedent,

the petitioners’ evidence failed to prove a violation of the Eighth Amendment. Id. at

71–87 (Stevens, J., concurring). Justice Thomas, on behalf of himself and Justice

Scalia, rejected the idea that the Court had the capacity to adjudicate claims involving methods of execution properly and instead argued that an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain. Id. at

94–107 (Thomas, J., concurring). Justice Breyer concluded that insufficient evidence

in either the record or in available medical literature demonstrated that Kentucky’s

lethal injection method created significant risk of unnecessary suffering. Id. at 107–13

(Breyer, J., concurring).

153 See 576 U.S. ___, No. 14–7955, slip op. (2015).

154 Id. at 5–7.

155 Id. at 16–29.

1736 AMENDMENT 8—PUNISHMENT FOR CRIME
dard that may result in the political process (as opposed the judiciary) being the primary means of making wholesale changes to a

particular method of execution.

Limitations on Capital Punishment: Proportionality.—

The Court has also considered whether, based on the nature of the

underlying offense (or, as explored in the next topic, the capacity of

the defendant), the imposition of capital punishment may be inappropriate in particular cases. “[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from

the basic ‘precept of justice that punishment for [a] crime should

be graduated and proportioned to [the] offense.’ Whether this requirement has been fulfilled is determined not by the standards that

prevailed when the Eighth Amendment was adopted in 1791 but

by the norms that ‘currently prevail.’ The Amendment ‘draw[s] its

meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” 156 However, the “Court has . . . made

it clear that ‘[t]he Eighth Amendment is not a ratchet, whereby a

temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.’ ” 157

In Coker v. Georgia,

158 the Court held that the state may not

impose a death sentence upon a rapist who did not take a human

life. In Kennedy v. Louisiana,

159 the Court held that this was true

even when the rape victim was a child.160 In Coker the Court announced that the standard under the Eighth Amendment was that

punishments are barred when they “are ‘excessive’ in relation to the

crime committed. Under Gregg, a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly

out of proportion to the severity of the crime. A punishment might

156 Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (citations omitted).

157 128 S. Ct. at 2675 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501

U.S. 957, 990 (1991)).

158 433 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.

159 128 S. Ct. 2641 (2008). Justice Kennedy’s opinion was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito filed a dissenting opinion, in which

Chief Justice Roberts and Justices Scalia and Thomas joined.

160 The Court noted, however, that “[o]ur concern here is limited to crimes against

individual persons [where a victim’s life is not taken]. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.” 128 S. Ct. at 2659.

AMENDMENT 8—PUNISHMENT FOR CRIME 1737
fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by

objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes concerning a particular

sentence—history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted.” 161 Although the Court thought that the death penalty for

rape passed the first test (“it may measurably serve the legitimate

ends of punishment”),162 it found that it failed the second test (proportionality). Georgia was the sole state providing for death for the

rape of an adult woman, and juries in at least nine out of ten cases

refused to impose death for rape. Aside from this view of public perception, the Court independently concluded that death is an excessive penalty for an offender who rapes but does not kill; rape cannot compare with murder “in terms of moral depravity and of the

injury to the person and to the public.” 163 In Kennedy v. Louisiana,

the Court found that both “evolving standards of decency” and “a

national consensus” preclude the death penalty for a person who

rapes a child.164

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

Florida 165 that death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or

intend that anyone be killed. Although a few more states imposed

capital punishment in felony murder cases than had imposed it for

rape, nonetheless the weight was heavily against the practice, and

the evidence of jury decisions and other indicia of a modern consensus also opposed the death penalty in such circumstances. Moreover, the Court determined that death was a disproportionate sentence for one who neither took life nor intended to do so. Because

161 433 U.S. at 592.

162 433 U.S. at 593 n.4.

163 433 U.S. at 598.

164 128 S. Ct. 2641, 2649, 2653 (2008). The Court noted that, since Gregg, it

had “spent more than 32 years articulating limiting factors that channel the jury’s

discretion to avoid the death penalty’s arbitrary imposition in the case of capital

murder. Though that practice remains sound, beginning the same process for crimes

for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area

where standards to confine its use are indefinite and obscure.” Id. at 2661.

165 458 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 Enmund

findings have been made).

1738 AMENDMENT 8—PUNISHMENT FOR CRIME
the death penalty is likely to deter only when murder is the result

of premeditation and deliberation, and because the justification of

retribution depends upon the degree of the defendant’s culpability,

the imposition of death upon one who participates in a crime in

which a victim is murdered by one of his confederates and not as a

result of his own intention serves neither of the purposes underlying the penalty.166 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.” 167

Limitations on Capital Punishment: Diminished Capacity.—

The Court has grappled with several cases involving application of

the death penalty to persons of diminished capacity. The first such

case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who

subsequently developed a mental disorder. The Court held in Ford

v. Wainwright 168 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 sanity at the time of execution must be determined in a proceeding satisfying the minimum

requirements of due process.169 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 continued to

be so viewed. And, although no states purported to permit the execution of the insane, Florida and some others left the determination to the governor. Florida’s procedures, the Court held, violated

due process because the decision was vested in the governor without the defendant’s having the opportunity to be heard, the gover166 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.

167 481 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.

168 477 U.S. 399 (1986).

169 There was an opinion of the Court only on the first issue: that the Eighth

Amendment creates a right not to be executed while insane. 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.

AMENDMENT 8—PUNISHMENT FOR CRIME 1739
nor’s decision being based on reports of three state-appointed psychiatrists.170

In Panetti v. Quarterman,

171 the Court considered two of the

issues raised, but not clearly answered, in Ford: what definition of

insanity should be used in capital punishment cases, and what process must be afforded to the defendant to prove his incapacity. Although the court below had found that it was sufficient to establish

competency that a defendant know that he is to be executed and

the reason why, the Court in Panetti rejected these criteria, and

sent the case back to the lower court for it to consider whether the

defendant had a rational understanding of the reasons the state gave

for an execution, and how that reflected on his competency.172 The

Court also found that the failure of the state to provide the defendant an adequate opportunity to respond to the findings of two courtappointed mental health experts violated due process.173

In 1989, when first confronted with the issue of whether execution of the mentally retarded is constitutional, the Court found “insufficient evidence of a national consensus against executing mentally retarded people.” 174 In 2002, however, the Court determined

in Atkins v. Virginia 175 that “much ha[d] changed” since 1989, that

the practice had become “truly unusual,” and that it was “fair to

170 There was no opinion of the Court on the issue of procedural requirements.

Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold

that “the ascertainment of a prisoner’s sanity . . . calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U.S. at

411–12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial

officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized

Florida’s denial of the opportunity to be heard, and did not express an opinion on

whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board,

set forth the Court’s holding.

171 127 S. Ct. 2842 (2007).

172 127 S. Ct. at 2862. In Panetti, the defendant, despite apparent mental problems, was found to understand both his imminent execution and the fact that the

State of Texas intended to execute him for having murdered his mother-in-law and

father-in-law. It was argued, however, that defendant, suffering from delusions, believed that the stated reason for his execution was a “sham” and that the state wanted

to execute him to “stop him from preaching.”

173 127 S. Ct. at 2858.

174 Penry v. Lynaugh, 492 U.S. 302, 335 (1989). Although unwilling to conclude

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

Amendment,” id. at 335, the Court noted that, because of 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. See also Tennard v. Dretke, 542 U.S. 274 (2004)

(evidence of low intelligence should be admissible for mitigating purposes without

being screened on basis of severity of disability).

175 536 U.S. 304 (2002). Atkins was 6–3 decision by Justice Stevens.

1740 AMENDMENT 8—PUNISHMENT FOR CRIME
say” that a “national consensus” had developed against it.176 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.” 177 The Court’s “own evaluation of the issue” reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence—

applies with full force to mentally retarded offenders. Retribution

necessarily depends on the culpability of the offender, yet mental

retardation reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet “the same cognitive

and behavioral impairments that make these defendants less morally culpable . . . also make it less likely that they can process the

information of the possibility of execution as a penalty and, as a

result, control their conduct based on that information.” 178

In Atkins, the Court wrote, “As was our approach in Ford v.

Wainwright with regard to insanity, ‘we leave to the State[s] the

task of developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.’ ” 179 In Schriro v. Smith,

the Court again quoted this language, holding that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial

to resolve Smith’s mental retardation claim.” 180 States, the Court

added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might,

in their application, be subject to constitutional challenge.” 181

In Hall v. Florida,

182 however, the Court limited the states’ ability to define intellectual disability by invalidating Florida’s “bright

line” cutoff based on Intelligence Quotient (IQ) test scores. A Florida

statute stated that anyone with an IQ above 70 was prohibited from

offering additional evidence of mental disability and was thus subject to capital punishment.183 The Court invalidated this rigid standard, observing that “[i]ntellectual disability is a condition, not a

176 536 U.S. at 314, 316.

177 536 U.S. at 315.

178 536 U.S. at 320. The Court also noted that reduced capacity both increases

the risk of false confessions and reduces a defendant’s ability to assist counsel in

making a persuasive showing of mitigation.

179 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399,

416–17 (1986).

180 546 U.S. 6, 7 (2005) (per curiam).

181 546 U.S. at 7.

182 572 U.S. ___, No. 12–10882, slip op. (2014).

183 FLA. STAT. § 921.137.

AMENDMENT 8—PUNISHMENT FOR CRIME 1741
number.” 184 The majority found that, although IQ scores are helpful in determining mental capabilities, they are imprecise in nature and may only be used as a factor of analysis in death penalty

cases.185 This reasoning was buttressed by a consensus of mental

health professionals who concluded that an IQ test score should be

read not as a single fixed number, but as a range.186

The Court’s conclusion that execution of juveniles constitutes cruel

and unusual punishment evolved in much the same manner. Initially, a closely divided Court invalidated one statutory scheme that

permitted capital punishment to be imposed for crimes committed

before age 16, but upheld other statutes authorizing capital punishment for crimes committed by 16- and 17-year-olds. Important to

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.187 Although four Justices favored a flat ruling that the Eighth Amendment

barred the execution of anyone younger than 16 at the time of his

offense, concurring Justice O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from the special care and

deliberation that must attend decisions to impose the death penalty. The following year Justice O’Connor again provided the decisive vote when the Court in Stanford v. Kentucky held that the Eighth

Amendment does not categorically prohibit imposition of the death

penalty for individuals who commit crimes at age 16 or 17. Like

Oklahoma, neither Kentucky nor Missouri 188 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.189

184 Hall, slip op. at 21.

185 Id. Of those states that allow for the death penalty, a number of them do

not have strict cut-offs for IQ scores. See, e.g., CAL. PENAL CODE § 1376 (West 2016);

LA. CODE CRIM. PROC. ANN. art. 905.5.1 (2016); NEV. REV. STAT. § 174.098.7; UTAH CODE

ANN. § 77–15a–102 (Lexis-Nexis 2016). Similarly, the U.S. Code does not set a strict

IQ cutoff. See 18 U.S.C. § 3596(c) (2012).

186 This range, referred to as a “standard error or measurement” or “SEM,” is

used by many states in evaluating the existence of intellectual disability. Hall, slip

op. at 12.

187 Thompson v. Oklahoma, 487 U.S. 815 (1988).

188 Wilkins v. Missouri was decided along with Stanford.

189 Compare Thompson, 487 U.S. at 849 (O’Connor, J., concurring) (two-thirds

of all state legislatures had concluded that no one should be executed for a crime

committed at age 15, and no state had “unequivocally endorsed” a lower age limit)

with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment decline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-old

offenders).

1742 AMENDMENT 8—PUNISHMENT FOR CRIME
Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing the mentally retarded with what it saw as a lack of consensus regarding

execution of juvenile offenders over age 15,190 less than three years

later the Court held that such a consensus had developed. The Court’s

decision in Roper v. Simmons 191 drew parallels with Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age 16 or 17 when they committed their crimes.

Since Stanford, five states had eliminated authority for executing

juveniles, and no states that formerly prohibited it had reinstated

the authority. In all, 30 states prohibited execution of juveniles: 12

that prohibited the death penalty altogether, and 18 that excluded

juveniles from its reach. This meant that 20 states did not prohibit

execution of juveniles, but the Court noted that only five of these

states had actually executed juveniles since Stanford, and only three

had done so in the 10 years immediately preceding Roper. Although the pace of change was slower than had been the case with

execution of the mentally retarded, the consistent direction of change

toward abolition was deemed more important.192

As in Atkins, the Court in Roper relied on its “own independent judgment” in addition to its finding of consensus among the

states.193 Three general differences between juveniles and adults make

juveniles less morally culpable for their actions. Because juveniles

lack maturity and have an underdeveloped sense of responsibility,

they often engage in “impetuous and ill-considered actions and de190 536 U.S. at 314, n.18.

191 543 U.S. 551 (2005). The case was decided by 5–4 vote. Justice Kennedy wrote

the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer.

Justice O’Connor, who had joined the Court’s 6–3 majority in Atkins, wrote a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and

Justice Thomas.

192 Dissenting in Roper, Justice O’Connor disputed the consistency of the trend,

pointing out that since Stanford two states had passed laws reaffirming the permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.

193 543 U.S. at 564. The Stanford Court had been split over the appropriate scope

of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would

have focused almost exclusively on an assessment of what the state legislatures and

Congress have done in setting an age limit for application of capital punishment.

492 U.S. at 377 (“A revised national consensus so broad, so clear and so enduring

as to justify a permanent prohibition upon all units of democratic government must

appear in the operative acts (laws and the application of laws) that the people have

approved.”). The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant’s culpability as one aspect of the

gravity of the offense, that considers age as one indicator of culpability, and that

looks to other statutory age classifications to arrive at a conclusion about the level

of maturity and responsibility that society expects of juveniles. 492 U.S. at 394–96.

The Atkins majority adopted the approach of the Stanford dissenters, conducting a

proportionality review that brought their own “evaluation” into play along with their

analysis of consensus on the issue of executing the mentally retarded.

AMENDMENT 8—PUNISHMENT FOR CRIME 1743
cisions.” Juveniles are also more susceptible than adults to “negative influences” and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits are “more

transitory, less fixed.” 194 For these reasons, irresponsible conduct

by juveniles is “not as morally reprehensible,” they have “a greater

claim than adults to be forgiven,” and “a greater possibility exists

that a minor’s character deficiencies will be reformed.” 195 Because

of the diminished culpability of juveniles, the penological objectives

of retribution and deterrence do not provide adequate justification

for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that “[t]he differences between juvenile and adult

offenders are too marked and well understood to risk allowing a

youthful person to receive the death penalty despite insufficient culpability.” 196

The Roper Court found confirmation for its holding in “the overwhelming weight of international opinion against the juvenile death

penalty.” 197 Although “not controlling,” the rejection of the juvenile

death penalty by other nations and by international authorities was

“instructive,” as it had been in earlier cases, for Eighth Amendment interpretation.198

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 ‘cruel and unusual’ punishments.” 199 This argument has not carried the day. Although the Court has acknowledged the possibility that the death

194 543 U.S. at 569, 570.

195 543 U.S. at 570.

196 543 U.S. at 572–573. Strongly disagreeing, Justice O’Connor wrote that “an

especially depraved juvenile offender may . . . be just as culpable as many adult

offenders considered bad enough to deserve the death penalty. . . . [E]specially for

17-year-olds . . . the relevant differences between ‘adults’ and ‘juveniles’ appear to

be a matter of degree, rather than of kind.” Id. at 600.

197 543 U.S. at 578 (noting “the stark reality that the United States is the only

country in the world that continues to give official sanction to the juvenile death

penalty,” id. at 575).

198 543 U.S. at 577, 578. Citing as precedent Trop v. Dulles, 356 U.S. 86, 102–03

(1958) (plurality opinion); Atkins, 536 U.S. at 317 n.21; Enmund v. Florida, 458 U.S.

782, 796–97, n.22 (1982), Thompson v. Oklahoma, 487 U.S. 815, 830–31 & n.31 (1988)

(plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality

opinion).

199 408 U.S. at 248, 257.

1744 AMENDMENT 8—PUNISHMENT FOR CRIME
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.” 200

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

McCleskey v. Kemp 201 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.” 202 Just as important to the outcome, however, was the

Court’s application of the two overarching principles of prior capital punishment cases: that a state’s system must narrow a sentencer’s

discretion to impose the death penalty (e.g., by carefully defining

“aggravating” circumstances), but must not constrain a sentencer’s

discretion to consider mitigating factors relating to the character of

the defendant. Although the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty,203 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.204

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

of state convictions, reinforced by the Antiterrorism and Effective

Death Penalty Act of 1996,205 may be expected to reduce significantly the amount of federal court litigation over state imposition

of capital punishment. In the habeas context, the Court rejected the

200 Turner v. Murray, 476 U.S. 28, 36–37 (1986).

201 481 U.S. 279 (1987) (5-to-4 decision).

202 481 U.S. at 308.

203 481 U.S. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens).

204 481 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, 536 U.S. 862 (2002)

(per curiam), requiring a threshold evidentiary showing before a defendant claiming

selective prosecution on the basis of race is entitled to a discovery order that the

government provide information on its decisions to seek the death penalty.

205 Pub. L. 104–132, 110 Stat. 1214.

AMENDMENT 8—PUNISHMENT FOR CRIME 1745
“death is different” approach by applying to capital cases the same

rules that limit federal petitions in non-capital cases.206 Then, in

In re Troy Anthony Davis,

207 the Court found a death-row convict

with a claim of actual innocence to be entitled to a District Court

determination of his habeas petition.208

The Court held in Penry v. Lynaugh 209 that its Teague v. Lane 210

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.211 The two exceptions—the situations in which “[a] new rule applies retroactively in

a collateral proceeding”—are when “(1) the rule is substantive or

(2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating

the fundamental fairness and accuracy of the criminal proceeding.” 212 The first exception has also been stated to be “that a new

rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe.’ ” 213 The second exception has

206 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)).

207 557 U.S. ___, No. 08–1443 (2009).

208 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer,

noted that the fact that seven of the state’s key witnesses had recanted their trial

testimony, and that several people had implicated the state’s principal witness as

the shooter, made the case “exceptional.” Justices Scalia, joined by Justice Thomas,

dissented.

209 492 U.S. 302 (1989).

210 489 U.S. 288 (1989).

211 The “new rule” limitation was suggested in a plurality opinion in Teague,

and a Court majority in Penry and later cases adopted it. In Danforth v. Minnesota,

128 S. Ct. 1029, 1033 (2008), the Court held that Teague does not “constrain[ ] the

authority of state courts to give broader effect to new rules of criminal procedure

than is required by that opinion.”

212 Whorton v. Bockting, 549 U.S. 406, 416 (2007). In Saffle v. Parks, 494 U.S.

484, 494, 495 (1990), the Court stated the two exceptions as follows: “The first exception permits the retroactive application of a new rule if the rule places a class of

private conduct beyond the power of the State to proscribe . . . or addresses a ‘substantive categorical guarante[e] accorded by the Constitution,’ such as a rule ‘prohibiting a certain category of punishment for a class of defendants because of their

status or offense.’ . . . The second exception is for ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

213 Teague v. Lane, 489 U.S. at 311, quoting Mackey v. United States, 401 U.S.

667, 692 (1971). “Teague by its terms applies only to procedural rules.” Bousley v.

United States, 523 U.S. 614, 620 (1998). “New substantive rules generally apply retroactively . . . because they necessarily carry a significant risk that a defendant stands

convicted of an act that the law does not make criminal or faces a punishment that

the law cannot impose on him.” Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004)

(internal quotation marks omitted) (the holding of Ring v. Arizona, that “a sentencing judge, sitting without a jury [may not] find an aggravating circumstance neces1746 AMENDMENT 8—PUNISHMENT FOR CRIME
also been stated to be “that a new rule should be applied retroactively if it requires the observance of those procedures that . . . are

implicit in the concept of ordered liberty,’ ” and “without which the

likelihood of an accurate conviction is seriously diminished.” 214 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.215 Although 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 sentencing cases the Court has found substantive review barred by the “new rule” limitation.216

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: “whether, after viewing the evidence in the light most fasary for imposition of the death penalty,” 542 U.S. at 353, quoting Ring, 536 U.S. at

609, was a procedural, not a substantive rule).

214 Teague v. Lane, 489 U.S. at 311, 313, quoting Mackey v. United States, 401

U.S. at 693. The second exception was at issue in Sawyer v. Smith, 497 U.S. 227

(1990), in which 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 Court in Sawyer explained, “that a new rule is aimed at improving the accuracy of a trial. More is required. 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.

215 Penry, 492 U.S. at 314; accord, Whorton v. Bockting, 549 U.S. 406, 416 (2007).

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).

216 See, 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”).

AMENDMENT 8—PUNISHMENT FOR CRIME 1747
vorable to the prosecution, any rational trier of fact have found the

essential elements of the crime beyond a reasonable doubt.” 217 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.218 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.219 In In re Troy Anthony Davis,

220 however, the Court found a death-row convict with a claim

of actual innocence to be entitled to a District Court determination

of his habeas petition.221

Third, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v.

California 222 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.223 The appropriate test is that previously used only for nonconstitutional errors: “whether the error has substantial and injurious effect or influence in determining the jury’s verdict.” 224 Further,

217 Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

218 Lewis 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.

219 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). Accord, House v. Bell, 547 U.S. 518, 554–55 (2006) (defendant failed

to meet Herrera standard but nevertheless put forward enough evidence of innocence to meet the less onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which

“held that prisoners asserting innocence as a gateway to [habeas relief for claims

forfeited under state law] must establish that, in light of new evidence, ‘it is more

likely than not that no reasonable juror would have found petitioner guilty beyond

a reasonable doubt.’ ” Id. at 2076–2077, quoting Schlup v. Delo, 513 U.S. at 327.)

The Court here distinguished “freestanding” claims under Herrera from “gateway”

claims under Schlup, the difference apparently being that success on a freestanding

claim results in the overturning of a conviction, whereas success on a gateway claim

results in a remand to the trial court to hear the claim. See also Article III, Habeas

Corpus: Scope of the Writ.

220 557 U.S. ___, No. 08–1443 (2009).

221 Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer,

“refuse[d] to endorse” Justice Scalia’s reasoning (in a dissent joined by Justice Thomas)

that would read the Constitution to permit the execution of a convict “who possesses new evidence conclusively and definitively proving, beyond any scintilla of

doubt, that he is an innocent man.”

222 386 U.S. 18 (1967).

223 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).

224 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 subse1748 AMENDMENT 8—PUNISHMENT FOR CRIME
the “substantial and injurious effect standard” is to be applied in

federal habeas proceedings even “when the state appellate court failed

to recognize the error and did not review it for harmlessness under

the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California . . . .” 225

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.226

The Antiterrorism and Effective Death Penalty Act of 1996 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.” 227 The Court’s decision in Bell v. Cone,

228 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.229

quently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per

curiam). In Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), the Court held

that a reviewing court should apply Brecht’s “substantial and injurious effect” standard where conviction was based on a general verdict after jury had been instructed

on alternative theories of guilt and may have relied on an invalid one.

225 Fry v. Pliler, 551 U.S. 112, 114 (2007).

226 Sawyer 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.

227 28 U.S.C. § 2254(d)(1).

228 535 U.S. 685 (2002).

229 The 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. See “Effective Assistance of

Counsel” under Sixth Amendment. The Bell v. Cone Court emphasized 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1749
In Carey v. Musladin,

230 the Court noted that it had previously

held that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed

in identifiable prison clothes,” 231 but that it had never ruled on the

effect on a defendant’s fair trial rights of spectator conduct. In Carey,

the spectator conduct that allegedly affected the defendant’s right

to a fair trial consisted of members of the victim’s family wearing

buttons with the victim’s photograph. Given the lack of holdings from

the Court on the question of spectator conduct, the Court in Carey

found that “it cannot be said that the state court unreasonabl[y]

appli[ed] clearly established Federal law” in denying the defendant

relief.232 Consequently, the Antiterrorism and Effective Death Penalty Act of 1996 precluded habeas relief. Similarly, because the Supreme Court has never ruled on whether, during a plea hearing at

which the defendant pleads guilty, defense counsel’s being linked

to the courtroom by speaker phone, rather than being physically

present, is likely to result in such poor performance that the Cronic

standard for ineffective assistance of counsel should apply, the Court

again could not say “that the state court ‘unreasonabl[y] appli[ed]

clearly established Federal law.’ ” 233

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.234

Proportionality

In O’Neil v. Vermont,

235 Justice Field 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,

236 the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the

of mitigating evidence or through a closing statement was unnecessary to counter

the state’s presentation of aggravating circumstances justifying a death sentence.

230 549 U.S. 70 (2006).

231 Estelle v. Williams, 425 U.S. 501, 512 (1976).

232 549 U.S. at 77 (quoting from 28 U.S.C. § 2254(d)(1)).

233 Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), quoting Carey v.

Musladin, 549 U.S. 70, 77 (2006) (under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), defendant not entitled to habeas relief).

234 Murray v. Giarratano, 492 U.S. 1 (1989) (“unit attorneys” assigned to prisons were available for some advice prior to filing a claim).

235 144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135–36

(1903).

236 217 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.

1750 AMENDMENT 8—PUNISHMENT FOR CRIME
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.” 237 Punishments as well as

fines, therefore, can be condemned as excessive.238

In Robinson v. California 239 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 addict without any requirement of a showing that a defendant had

ever used narcotics within the jurisdiction of the state or had committed any act at all within the state’s power to proscribe, and because addiction is an illness that—however it is acquired—

physiologically compels the victim to continue using drugs. The case

could stand for the principle, therefore, that one may not be punished for a status in the absence of some act,240 or it could stand

for the broader principle that it is cruel and unusual to punish someone for conduct that he is unable to control, which would make it a

holding of far-reaching importance.241 In Powell v. Texas,

242 a majority of the Justices took the latter view of Robinson, but the re237 217 U.S. at 381.

238 “The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” Atkins v.

Virginia, 536 U.S. 304, 311 (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 under “Limitations on Capital Punishment:

Proportionality,” supra.

239 370 U.S. 660 (1962).

240 A different approach to essentially the same problem was taken in Thompson v. Louisville, 362 U.S. 199, 206 (1960), which set aside a conviction for loitering

and disorderly conduct as being supported by “no evidence whatever.” Cf. Johnson v.

Florida, 391 U.S. 596 (1968) (no evidence that the defendant was “wandering or strolling around” in violation of vagrancy law).

241 Fully 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

AMENDMENT 8—PUNISHMENT FOR CRIME 1751
sult, because of one Justice’s view of the facts, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether

either the Eighth Amendment or the Due Process Clauses will govern the requirement of the recognition of capacity defenses to criminal charges remains to be decided.

The Court has gone back and forth in its acceptance of proportionality analysis in non-capital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle,

243 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 distinguished Weems on the ground 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.244 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

had been influenced by his alcohol use, was “unlikely to advance the goals of our

criminal justice system in any substantial way.”

242 392 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.

243 445 U.S. 263 (1980).

244 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.

1752 AMENDMENT 8—PUNISHMENT FOR CRIME
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.245

Rummel was distinguished in Solem v. Helm,

246 the Court stating unequivocally that the Cruel and Unusual Punishments Clause

“prohibits not only barbaric punishments, but also sentences that

are disproportionate to the crime committed,” and that “[t]here is

no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.” 247 Helm, like

Rummel, had been sentenced under a recidivist statute following

conviction for a nonviolent felony involving a small amount of money.248

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 considered in Rummel v. Estelle.” 249 Rummel, the

Court pointed out, “was likely to have been eligible for parole within

12 years of his initial confinement,” whereas Helm had only the possibility of executive clemency, characterized by the Court as “nothing more than a hope for ‘an ad hoc exercise of clemency.’ ” 250 The

Solem 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.” 251 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, kidnap245 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.

246 463 U.S. 277 (1983). The case, like Rummel, was decided by a 5–4 vote.

247 463 U.S. at 284, 288.

248 The 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.

249 463 U.S. at 297.

250 463 U.S. at 297, 303.

251 463 U.S. at 292.

AMENDMENT 8—PUNISHMENT FOR CRIME 1753
ing, and arson. In only one other state could he have received so

harsh a sentence, and in no other state was it mandated.252

The Court remained closely divided in holding in Harmelin v.

Michigan 253 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.254

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.255

Twelve years after Harmelin the Court still could not reach a

consensus on rationale for rejecting a proportionality challenge to

California’s “three-strikes” law, as applied to sentence a repeat felon

to 25 years to life imprisonment for stealing three golf clubs valued

at $399 apiece.256 A plurality of three Justices (O’Connor, Kennedy,

and Chief Justice Rehnquist) determined that the sentence was “justified by the State’s public safety interest in incapacitating and de252 For 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).

253 501 U.S. 957 (1991).

254 “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 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.

255 Because of the “serious nature” of the crime, the three-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.

256 Ewing v. California, 538 U.S. 11 (2003).

1754 AMENDMENT 8—PUNISHMENT FOR CRIME
terring recidivist felons, and amply supported by [the petitioner’s]

long, serious criminal record,” and hence was not the “rare case” of

“gross disproportional[ity].” 257 The other two Justices voting in the

majority were Justice Scalia, who objected that the proportionality

principle cannot be intelligently applied when the penological goal

is incapacitation rather than retribution,258 and Justice Thomas, who

asserted that the Cruel and Unusual Punishments Clause “contains no proportionality principle.” 259 Not surprisingly, the Court

also rejected a habeas corpus challenge to California’s “threestrikes” law for failure to clear the statutory hurdle of establishing

that the sentencing was contrary to, or an unreasonable application of, “clearly established federal law.” 260 Justice O’Connor’s opinion for a five-Justice majority explained, in understatement, that

the Court’s precedents in the area “have not been a model of clarity . . . that have established a clear or consistent path for courts

to follow.” 261

Declaring that “[t]he concept of proportionality is central to the

Eighth Amendment,” Justice Kennedy, writing for a five-Justice majority in Graham v. Florida,

262 held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile

offender who did not commit homicide.” 263 Justice Kennedy characterized proportionality cases as falling within two general types. The

first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases.

The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty

on those with diminished capacity. In Graham, Justice Kennedy broke

new ground and recognized a categorical restriction on life without

parole for nonhomicide offenses by juveniles, citing considerations

and applying analysis similar to those used in his juvenile capital

257 538 U.S. at 29–30.

258 538 U.S. at 31.

259 538 U.S. at 32. The four dissenting Justices thought that the sentence was

invalid under the Harmelin test used by the plurality, although they suggested that

the Solem v. Helm test would have been more appropriate for a recidivism case. See

538 U.S. at 32, n.1 (opinion of Justice Stevens).

260 Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used

to impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two

petty thefts with a prior conviction.

261 538 U.S. at 72.

262 560 U.S. ___, No. 08–7412, slip op. (2010).

263 Id. at 31. The opinion distinguishes life without parole from a life sentence.

An offender need not be guaranteed eventual release under the Graham holding,

just a realistic opportunity for release based on conduct during confinement.

AMENDMENT 8—PUNISHMENT FOR CRIME 1755
punishment opinion in Roper.

264 In considering objective indicia of

a national consensus on the sentence, the Graham opinion looked

beyond statutory authorization—thirty-seven states and the District of Columbia permitted life without parole for some juvenile

nonhomicide offenders—to actual imposition, which was rare outside Florida. Justice Kennedy also found support “in the fact that,

in continuing to impose life without parole sentences on juveniles

who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.” 265 After finding that a consensus had developed against the sentencing practice at issue, Justice Kennedy expressed an independent judgment that imposing life

without parole on juveniles for nonhomicide offenses failed to serve

legitimate penological goals adequately.266 Factors in reaching this

conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.267

The concept of proportionality also drove Justice Kagan’s analysis in Miller v. Alabama, a case questioning the imposition of mandatory life imprisonment without parole on juveniles convicted of

homicide.268 Her analysis began by recounting the factors, stated

in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.269 Nevertheless,

these factors, even when coupled with the severity of a life without

parole sentence, did not lead Justice Kagan to bar life without parole for juveniles in homicide cases categorically.270 Her more immediate concern was that the mandatory life sentences in Miller left

no room for a sentencer to consider a juvenile offender’s special immaturity, vulnerability, suggestibility, and the like.271 In Justice Kagan’s

view, a process that mandates life imprisonment without parole for

juvenile offenders is constitutionally flawed because it forecloses any

264 See 543 U.S. 551 (2005). Concurring in the judgement in Graham, Chief Justice Roberts resolved the case under a proportionality test, finding the majority’s

categorical restriction to be unwise and unnecessary in Graham’s circumstances. 560

U.S. ___, No. 08–7412, slip op. (Roberts, C.J., concurring).

265 560 U.S. ___, No. 08–7412, slip op. at 29.

266 For a parallel discussion in Roper, see 543 U.S. 551, 568–75 (2005).

267 In dissent, Justice Thomas, joined by Justice Scalia and, in part, by Justice

Alito, questioned both the basis and the reach of the majority opinion. In addition

to strongly objecting to adopting any categorical rule in a nonhomicide context, Justice Thomas pointedly criticized the conclusion that the legislative and judicial records established a consensus against imposing life without parole on juvenile offenders in nonhomicide cases. He also disparaged the majority’s independent judgment

on the morality and justice of the sentence as wrongfully pre-empting the political

process. 560 U.S. ___, No. 08–7412, slip op. (Thomas, J., dissenting).

268 567 U.S. ___, No. 10–9646, slip op. (2012).

269 Id. at 8.

270 Id. at 20.

271 Id. at 15.

1756 AMENDMENT 8—PUNISHMENT FOR CRIME
consideration of the hallmark distinctions of youth in meting out

society’s severest penalties.272 In leading four Justices in dissent,

Chief Justice Roberts observed that most states and the Federal

Government have statutes mandating life sentences without parole

for certain juvenile offenders in homicide cases, and that those mandated sentences are commonly imposed. These sentences simply are

not “unusual,” nor does state law and practice indicate societal opprobrium toward them. Justice Kagan remained unconvinced, finding the dissent’s methodology less persuasive when the issue is the

process that must be used in imposing a particular sentence as opposed to categorically barring a type of sentence altogether.

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.’ ” 273 “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.” 274 These

general principles apply both to the treatment of individuals 275 and

to the creation or maintenance of prison conditions that are inhu272 Id. at 8. In Montgomery v. Louisiana, the Court cautioned, however, that Miller

should not be read as merely imposing additional procedural hurdles before a juvenile offender could be sentenced to life without parole. See 577 U.S. ___, No. 14–

280, slip op. at 16 (2016). Instead, according to the Montgomery Court, Miller barred

a sentence of life without parole for “all but the rarest of juvenile offenders, those

whose crimes reflect permanent incorrigibility.” Id. at 17.

273 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437

U.S. 678, 685 (1978)).

274 452 U.S. at 347. See also Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (rejecting a challenge to a two-year withdrawal of visitation as punishment for prisoners who commit multiple substance abuse violations, characterizing the practice as

“not a dramatic departure from accepted standards for conditions of confinement,”

but indicating that a permanent ban “would present different considerations”).

275 E.g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with

leather strap violates Eighth Amendment); Estelle v. Gamble, 429 U.S. 97 (1976)

(deliberate medical neglect of a prisoner violates Eighth 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). In Erickson

v. Pardus, 551 U.S. 89 (2007) (per curiam), the Court overturned a lower court’s

dismissal, on procedural grounds, of a prisoner’s claim of having been denied medical treatment, with life-threatening consequences. Justice Thomas, however, dissented on the ground “that the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence. . . .

But even applying the Court’s flawed Eighth Amendment jurisprudence, I would draw

AMENDMENT 8—PUNISHMENT FOR CRIME 1757
mane to inmates generally.276 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 culpable, “wanton”

state of mind on the part of prison officials.277 In the context of general prison conditions, this culpable state of mind is “deliberate indifference”; 278 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.279 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.280

Beginning with Holt v. Sarver,

281 federal courts found prisons

or entire prison systems to violate the Cruel and Unusual Punishments Clause, and broad remedial orders directed to improving prison

the line at actual, serious injuries and reject the claim that exposure to the risk of

injury can violate the Eighth Amendment.” Id. at 95 (internal quotation marks omitted).

276 E.g., Hutto v. Finney, 437 U.S. 678 (1978).

277 Wilson v. Seiter, 501 U.S. 294 (1991).

278 501 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). In upholding capital punishment by a three-drug lethal injection

protocol, despite the risk that the protocol will not be properly followed and consequently result in severe pain, a Court plurality found that, although “subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify

as cruel and unusual punishment . . . , the conditions presenting the risk must be

‘sure or very likely to cause serious illness and needless suffering,’ and give rise to

‘sufficiently imminent dangers.’ . . . [T]o prevail on such a claim there must be a

‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Baze v. Rees, 128 S. Ct. 1520, 1530–31 (emphasis

added by the Court). This case is also discussed, supra, under Eighth Amendment,

“Application and Scope.”

279 Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment).

280 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). Accord Wilkins

v. Gaddy, 559 U.S. ___, No. 08–10914, slip op. (2010) (per curiam).

281 309 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)).

1758 AMENDMENT 8—PUNISHMENT FOR CRIME
conditions and ameliorating prison life were imposed in more than

two dozen states.282 But, although 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.283 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 lower court decisions that

had been left undisturbed.284 Thus, concerns 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.” 285

Congress initially encouraged litigation over prison conditions

by enactment in 1980 of the Civil Rights of Institutionalized Persons Act,286 but then in 1996 added restrictions through enactment

of the Prison Litigation Reform Act.287 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.288

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 school282 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).

283 Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337 (1981).

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

ending the practice.

285 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).

286 Pub. L. 96–247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq.

287 Pub. L. 104–134, title VIII, 110 Stat. 1321–66—1321–77.

288 Miller v. French, 530 U.S. 327 (2000). See also Porter v. Nussle, 534 U.S.

516 (2002) (applying the Act’s requirement that prisoners exhaust administrative

remedies).

AMENDMENT 8—PUNISHMENT FOR CRIME 1759
children 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.” 289 These limitations, the Court thought,

should not be extended outside the criminal process.

289 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.

1760 AMENDMENT 8—PUNISHMENT FOR CRIME