1465

EIGHTH AMENDMENT

FURTHER GUARANTEES IN CRIMINAL CASES

CONTENTS

Page

Excessive Bail ............................................................................................................................ 1467

Excessive Fines .......................................................................................................................... 1471

Cruel and Unusual Punishments ............................................................................................. 1472

Style of Interpretation ........................................................................................................ 1472

‘‘Cruel and Unusual Punishments’’ ................................................................................... 1473

Capital Punishment ........................................................................................................... 1474

Proportionality .................................................................................................................... 1493

Prisons and Punishment .................................................................................................... 1497

Limitation of Clause to Criminal Punishment ................................................................. 1499

1467

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

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

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

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

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

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

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

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

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

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

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

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

FURTHER GUARANTEES IN CRIMINAL CASES

EIGHTH AMENDMENT

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

EXCESSIVE BAIL

‘‘This traditional right to freedom before conviction permits the

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

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

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

clause was lifted with slight changes from the English Bill of

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

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

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

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

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

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

phrase and the absence of evidence regarding the intent of those

who drafted and who ratified the Eighth Amendment. 3

Crucial to understanding why the ambiguity exists if not to its

resolution is knowledge of the history of the bail controversy in

England. 4 The Statute of Westminster the First of 1275 5 set forth

a detailed enumeration of those offenses which were bailable and
1468 AMENDMENT 8—PUNISHMENT FOR CRIME

6 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND (London: 1883),

233–43. 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).

those which were not, and, though supplemented by later statutes,

it served for something like five-and-a-half centuries as the basic

authority. 6 Darnel’s Case, 7 in which the judges permitted the continued imprisonment of persons merely upon the order of the King,

without bail, was one of the moving factors in the enactment of the

Petition of Right in 1628; 8 the Petition cited Magna Carta as proscribing detention of persons as permitted in Darnel’s Case. The

right to bail was again subverted a half-century later 9 by various

technical subterfuges by which petitions for habeas corpus could

not be presented, and Parliament reacted by enacting the Habeas

Corpus Act of 1679, 10 which established procedures for effectuating

release from imprisonment and provided penalties for judges who

did not comply with the Act. That avenue closed, the judges then

set bail so high it could not be met, and Parliament responded by

including in the Bill of Rights of 1689 11 a provision ‘‘[t]hat excessive bail ought not to be required.’’ This language, along with essentially the rest of the present Eighth Amendment, was included

within the Virginia Declaration of Rights, 12 was picked up in the

Virginia recommendations for inclusion in a federal bill of rights by

the state ratifying convention, 13 and was introduced verbatim by

Madison in the House of Representatives. 14

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

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

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

1679, and protection against abridgement through the fixing of an

excessive bail was conferred by the Bill of Right of 1689. Habeas

corpus was here protected in Article I, § 9, of the Constitution and

the question is, therefore, whether the First Congress knowingly or

inadvertently provided only against abridgement of a right which

they did not confer or protect in itself or whether the phrase ‘‘ex-
AMENDMENT 8—PUNISHMENT FOR CRIME 1469

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 1 DOCUMENTS ON

FUNDAMENTAL HUMAN RIGHTS 79, 82 (Z. Chafee ed., 1951). 16 ‘‘That all prisoners shall be bailable by sufficient sureties, unless for capital

offences, where the proof is evident, or the presumption great.’’ 5 F. THORPE, THE

FEDERAL AND STATE CONSTITUTIONS, H. DOC. NO. 357, 59th Congress, 2d sess. 3061

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

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

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

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

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

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

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

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

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

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

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

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

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

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

cessive bail’’ was meant to be a shorthand expression of both

rights.

Compounding the ambiguity is a distinctive trend in the United States which had its origin in a provision of the Massachusetts

Body of Liberties of 1641, 15 guaranteeing bail to every accused person except those charged with a capital crime or contempt in open

court. Copied in several state constitutions, 16 this guarantee was

contained in the Northwest Ordinance in 1787, 17 along with a

guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789, 18 enacted

contemporaneously with the passage through Congress of the Bill

of Rights. It appears, therefore, that Congress was aware in 1789

that certain language conveyed a right to bail and that certain

other language merely protected against one means by which a preexisting 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
1470 AMENDMENT 8—PUNISHMENT FOR CRIME

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

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

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

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

278 N.W. 2d 106, cert. denied, 444 U.S. 920 (1979). 20Schall v. Martin, 467 U.S. 253 (1984). 21 481 U.S. 739 (1988). 22 Id. at 753. 23 Id. at 754. 24 Id. at 755. The Court also ruled that there was no violation of due process,

the governmental objective being legitimate and there being a number of procedural

safeguards (detention applies only to serious crimes, the arrestee is entitled to a

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

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

The Court first tested and upheld under the Due Process

Clause of the Fourteenth Amendment a state statute providing for

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

Salerno, 21 the Court upheld application of preventive detention

provisions of the Bail Reform Act of 1984 against facial challenge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment is apparently inapplicable to postconviction release
AMENDMENT 8—PUNISHMENT FOR CRIME 1471

28 Hudson v. Parker, 156 U.S. 277 (1895). 29 Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833). 30Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921). 31Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). 32 Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989). 33 Id. at 265. 34 Id. at 266. 35 Id. at 268.

pending appeal but the practice has apparently been to grant such

releases. 28

EXCESSIVE FINES

For years the Supreme Court had little to say with reference

to 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 In a dissent, Justice Brandeis once contended that the denial of second-class mailing privileges to a newspaper on the basis

of its past conduct imposed additional mailing cost, a fine in effect,

which, since the costs grew indefinitely each day, was an unusual

punishment proscribed by this 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’’ as applied to the person sentenced. So too, 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 meaning of the phrase as applied to the quantum of punishment for any particular offense, independent of the offender’s

ability to pay, still awaits litigation.
1472 AMENDMENT 8—PUNISHMENT FOR CRIME

36 1 ANNALS OF CONGRESS 754 (1789).

37 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.

38See Granucci, ‘‘Nor Cruel and Unusual Punishments Inflicted’’: The Original

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

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

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

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

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

forms throughout our Nation’s history’’).

CRUEL AND UNUSUAL PUNISHMENTS

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

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

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

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

we in the future to be prevented from inflicting these punishments

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

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

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

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

restrained from making necessary laws by any declaration of this

kind.’’ 36 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, 37 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. 38

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 on interpretation, determining whether or not a

punishment was ‘‘cruel and unusual’’ by looking to see if it or a sufficiently similar variant was considered ‘‘cruel and unusual’’ in
AMENDMENT 8—PUNISHMENT FOR CRIME 1473

39Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890);

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

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

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

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

Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 112 S. Ct. 995, 1010 (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). 40 217 U.S. 349 (1910). 41 Id. at 376–77. 42Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion). 43See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and

Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978). 44Wilkerson v. Utah, 99 U.S. 130, 135 (1878). 45 Id. See also Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 479–80 (1867). 46 In re Kemmler, 136 U.S. 436 (1890).

1789. 39 But in Weems v. United States 40 it was concluded that the

framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of ‘‘a coercive cruelty being exercised

through other forms of punishment.’’ The Amendment therefore

was of an ‘‘expansive and vital character’’ 41 and, in the words of

a later Court, ‘‘must draw its meaning from the evolving standards

of decency that mark the progress of a maturing society.’’ 42 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. 43

‘‘Cruel and Unusual Punishments’’.—‘‘Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling

alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that

amendment to the Constitution.’’ 44 In thus upholding capital punishment inflicted by a firing squad, the Court not only looked to

traditional practices but examined the history of executions in the

territory concerned, the military practice, and current writings on

the death penalty. 45 The Court next approved, under the Fourteenth Amendment’s due process clause rather than under the

Eighth Amendment, electrocution as a permissible method of administering punishment. 46 Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States,

held that a second electrocution following a mechanical failure at
1474 AMENDMENT 8—PUNISHMENT FOR CRIME

47Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Justice Frankfurter tested the issue by due process standards. Id. at 470 (concurring). 48 356 U.S. 86 (1958). Four Justices joined the plurality opinion while Justice

Brennan concurred on the ground that the requisite relation between the severity

of the penalty and legitimate purpose under the war power was not apparent. Id.

at 114. Four Justices dissented, denying that denationalization was a punishment

and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124–27. 49 Id. at 99–100. 50 Id. at 99. In Rudolph v. Alabama, 375 U.S. 889 (1963), Justices Goldberg,

Douglas, and Brennan, dissenting from a denial of certiorari, argued that the Court

should have heard the case to consider whether the Constitution permitted the imposition of death ‘‘on a convicted rapist who has neither taken nor endangered

human life,’’ and presented a line of argument questioning the general validity of

the death penalty under the Eighth Amendment. 51 E.g., Witherspoon v. Illinois, 391 U.S. 510 (1968) (exclusion of death-scrupled

jurors). See also Davis v. Georgia, 429 U.S. 122 (1976), and Adams v. Texas, 448

U.S. 38 (1980) (explicating Witherspoon). The Eighth Amendment was the basis for

grant of review in Boykin v. Alabama, 395 U.S. 238 (1969) and Maxwell v. Bishop,

398 U.S. 262 (1970), but membership changes on the Court resulted in decisions on

other grounds.

the first which injured but did not kill the condemned man did not

violate the proscription. 47

Divestiture of the citizenship of a natural born citizen was held

in Trop v. Dulles, 48 again by a divided Court, to be constitutionally

forbidden as a penalty more cruel and ‘‘more primitive than torture,’’ inasmuch as it entailed statelessness or ‘‘the total destruction of the individual’s status in organized society.’’ ‘‘The question

is whether [a] penalty subjects the individual to a fate forbidden

by the principle of civilized treatment guaranteed by the Eighth

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

basic prohibition against inhuman treatment,’’ and the Amendment

was intended to preserve the ‘‘basic concept . . . [of] the dignity of

man’’ by assuring that the power to impose punishment is ‘‘exercised within the limits of civilized standards.’’ 49

Capital Punishment.—In Trop, 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. 50 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 one with another.

A series of cases testing the means by which the death penalty

was imposed 51 culminated in what appeared to be a decisive rejec-
AMENDMENT 8—PUNISHMENT FOR CRIME 1475

52 402 U.S. 183 (1971). McGautha was decided in the same opinion with

Crampton v. Ohio. McGautha raised the question whether provision for imposition

of the death penalty without legislative guidance to the sentencing authority in the

form of standards violated the due process clause; Crampton raised the question

whether due process was violated when both the issue of guilt or innocence and the

issue of whether to impose the death penalty were determined in a unitary proceeding. Justice Harlan for the Court held that standards were not required because,

ultimately, it was impossible to define with any degree of specificity which defendant should live and which die; while bifurcated proceedings might be desirable, they

were not required by due process. 53 408 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. 54 Id. at 257 (Justice Brennan). 55 Id. at 314 (Justice Marshall). 56 Id. at 240 (Justice Douglas). 57 Id. at 306 (Justice Stewart). 58 Id. 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.

tion of the attack in McGautha v. California. 52 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 53 that the death penalty, at least

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

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

majority each approached the matter from a different angle in a

separate concurring opinion. Two Justices concluded that the death

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

capital punishment ‘‘does not comport with human dignity’’ 54 or because it is ‘‘morally unacceptable’’ and ‘‘excessive.’’ 55 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. 56 Two Justices concluded

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

was applied in an arbitrary, ‘‘wanton,’’ and ‘‘freakish’’ manner 57

and so infrequently that it served no justifying end. 58

Inasmuch as only two of the Furman Justices thought the

death penalty to be invalid in all circumstances, those who wished

to reinstate the penalty concentrated upon drafting statutes that

would correct the faults identified in the other three majority opin-
1476 AMENDMENT 8—PUNISHMENT FOR CRIME

59 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). 60 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’’). 61On crimes not involving the taking of life or the actual commission of the killing by a defendant, see Coker v. Georgia, 433 U.S. 584 (1977) (rape); Enmund v.

Florida, 458 U.S. 782 (1982) (felony murder committed by confederate). Those cases

in which a large threat, though uneventuated, to the lives of many may have been

present, as in airplane hijackings, may constitute an exception to the Court’s narrowing of the crimes for which capital punishment may be imposed. The federal hijacking law, 49 U.S.C. § 1472, imposes death only when death occurs during commission of the hijacking. But the treason statute does not require a death to occur

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

U.S.C. § 2381. 62 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). 63 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).

ions. 59 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. 60 Instead, while the Court

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

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

by the state’s taking of human life, 61 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 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. 62 Divisions among the Justices, however,

made it difficult to ascertain the form which permissible statutory

schemes may take. 63
AMENDMENT 8—PUNISHMENT FOR CRIME 1477

64Thus, Justice Douglas thought the penalty had been applied discriminatorily,

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

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

313.65The 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).

Inasmuch as the three Justices in the majority in Furman who

did not altogether reject the death penalty thought the problems

with the system revolved about discriminatory and arbitrary imposition, 64 legislatures turned to enactment of statutes that purported to do away with these difficulties by, on the one hand, providing for automatic imposition of the death penalty upon conviction for certain forms of murder, or, more commonly, providing

specified aggravating and mitigating factors that the sentencing

authority should consider in imposing sentence, and establishing

special procedures to follow in capital cases. In five cases in 1976,

the Court rejected automatic sentencing but approved other statutes specifying factors for jury consideration. 65

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

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

the position that reenactment of capital punishment statutes by 35

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

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

the death penalty does not comport with the basic concept of

human dignity at the core of the Eighth Amendment. Courts are

not free to substitute their own judgments for the people and their

elected representatives. A death penalty statute, just as all other

statutes, comes before the courts bearing a presumption of validity

which can only be overcome 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,
1478 AMENDMENT 8—PUNISHMENT FOR CRIME

66Gregg 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, supra, at 227, 231. 67Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428

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

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

death penalty. 428 U.S. at 305, 306, 336. 68 Here adopted is the constitutional analysis of the Stewart plurality of three.

‘‘[T]he holding of the Court may be viewed as the position taken by those Members

who concurred in the judgments on the narrowest grounds,’’ Gregg v. Georgia, 428

U.S. 153, 169 n.15 (1976), a comment directed to the Furman opinions but equally

applicable to these cases and to Lockett. See Marks v. United States, 430 U.S. 188,

192–94 (1977). 69The Stewart plurality noted its belief that jury sentencing in capital cases

performs an important societal function in maintaining a link between contemporary community values and the penal system, but agreed that sentencing may

constitutionally be vested in the trial judge. Gregg v. Georgia, 428 U.S. 153, 190

(1976). A definitive ruling came in Spaziano v. Florida, 468 U.S. 447 (1984), upholding a provision under which the judge can override a jury’s advisory life imprisonment sentence and impose the death sentence. ‘‘[T]he purpose of the death penalty

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

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

the judgments of the state legislatures are that it does, and those

judgments are entitled to deference. Therefore, the infliction of

death as a punishment for murder is not without justification and

is not unconstitutionally severe. Neither is the punishment of

death disproportionate to the crime being punished, murder. 66

Second, a different majority, however, concluded that statutes

mandating the imposition of death for crimes classified as first-degree murder violate the Eighth Amendment. In order to make its

determination, the plurality looked to history and traditional

usage, to legislative enactment, and to jury determinations. Because death is a unique punishment, the sentencing process must

provide an opportunity for individual consideration of the character

and record of each convicted defendant and his crime along with

mitigating and aggravating circumstances. 67

Third, while the imposition of death is constitutional per se,

the procedure by which sentence is passed must be so structured

as to reduce arbitrariness and capriciousness as much as possible. 68 What emerged from the prevailing plurality opinion in

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

or judge, 69 be given standards to govern its exercise of discretion

and be given the opportunity to evaluate both the circumstances of
AMENDMENT 8—PUNISHMENT FOR CRIME 1479

70Gregg 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, supra, at 195

n.47, and Lockett v. Ohio, 438 U.S. 586, 598–99 (1978). In assessing the character

and record of the defendant, the jury may be required to make a judgment about

the possibility of future dangerousness of the defendant, from psychiatric and other

evidence. Jurek v. Texas, 428 U.S. 262, 275–76 (1976). Moreover, testimony of psychiatrists need not be based on examination of the defendant; general responses to

hypothetical questions may also be admitted. Barefoot v. Estelle, 463 U.S. 880

(1983). But cf. Estelle v. Smith, 451 U.S. 454 (1981) (holding self-incrimination and

counsel clauses applicable to psychiatric examination, at least when doctor testifies

about his conclusions with respect to future dangerousness). 71Gregg 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). 72Gregg 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). 73Pulley v. Harris, 465 U.S. 37 (1984). 74 Id. at 50.

the offense and the character and propensities of the accused; 70 (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, will be presented; 71 (3) that

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

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

comparison with the penalties imposed in similar cases. 72 The

Court later ruled, however, that proportionality review is not constitutionally required. 73 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.’’ 74

Most states responded to the requirement that the sentencing

authority be given standards narrowing discretion to impose the

death penalty by enacting statutes spelling out ‘‘aggravating’’ circumstances at least one of which must be found to be present before the death penalty may be imposed. The standards must be rel-
1480 AMENDMENT 8—PUNISHMENT FOR CRIME

75Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion). 76Maynard v. Cartwright, 486 U.S. 356 (1988). 77Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis v. Jeffers, 497 U.S. 764

(1990). See also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (upholding full statutory

circumstance of ‘‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim’’); Proffitt

v. Florida, 428 U.S. 242, 255 (1976) (upholding ‘‘especially heinous, atrocious or

cruel’’ aggravating circumstance as interpreted to include only ‘‘the conscienceless

or pitiless crime which is unnecessarily torturous to the victim’’); Sochor v. Florida,

112 S. Ct. 2114 (1992) (impermissible vagueness of ‘‘heinousness’’ factor cured by

narrowing interpretation including strangulation of a conscious victim). 78 Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different

defendant than the first Roberts v. Louisiana case, supra n.67). 79Sumner v. Shuman, 483 U.S. 66 (1987). 80 Baldwin v. Alabama, 472 U.S. 372 (1985) (mandatory jury death sentence

saved by requirement that trial judge independently weigh aggravating and mitigating factors and determine sentence). 81 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 also Schad v. Arizona, 501

U.S. 624 (1991) (first-degree murder defendant, who received instruction on lesser

atively precise and instructive in providing guidance that minimizes 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 is imposed from other cases in which it

is not. 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.’’ 75 Similarly, an ‘‘especially heinous, atrocious or cruel’’ aggravating circumstance was held to be unconstitutionally vague. 76 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. 77

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, 78 and for prison inmates convicted of murder

while serving a life sentence without possibility of parole. 79 On the

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

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

return a death ‘‘sentence’’ upon convicting for specified crimes. 80

Flaws related to those attributed to mandatory sentencing statutes

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

jury the option of convicting on a lesser included offense, when that

would be justified by the evidence. 81 Because the jury had to
AMENDMENT 8—PUNISHMENT FOR CRIME 1481

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.

82 Also impermissible as distorting a jury’s role are prosecutor’s comments or

jury instructions that mislead a jury as to its primary responsibility for deciding

whether to impose the death penalty. Compare Caldwell v. Mississippi, 472 U.S. 320

(1985) (jury’s responsibility is undermined by court-sanctioned remarks by prosecutor that jury’s decision is not final, but is subject to appellate review) with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not undermined by instruction

that governor has power to reduce sentence of life imprisonment without parole).

See also Lowenfield v. Phelps, 484 U.S. 231 (1988) (poll of jury and supplemental

jury instruction on obligation to consult and attempt to reach a verdict was not unduly coercive on death sentence issue, even though consequence of failing to reach

a verdict was automatic imposition of life sentence without parole).

83Gregg v. Georgia, 428 U.S. 153, 197–98 (1976) (plurality).

84 438 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.

85 438 U.S. at 604 (plurality).

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. 82

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.’’ 83 Discretion was channeled and

rationalized. But in Lockett v. Ohio, 84 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.’’ 85 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
1482 AMENDMENT 8—PUNISHMENT FOR CRIME

86Woodson 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). 87 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. 88 Justice White, dissenting in Lockett from the Court’s holding on consideration

of mitigating factors, wrote that he ‘‘greatly fear[ed] that the effect of the Court’s

decision today will be to compel constitutionally a restoration of the state of affairs

at the time Furman was decided, where the death penalty is imposed so erratically

and the threat of execution is so attenuated for even the most atrocious murders

that ‘its imposition would then be the pointless and needless extinction of life with

only marginal contributions to any discernible social or public purposes.’’’ 438 U.S.

at 623. More recently, Justice Scalia voiced similar misgivings. ‘‘Shortly after introducing our doctrine requiring constraints on the sentencer’s discretion to ‘impose’

the death penalty, the Court began developing a doctrine forbidding constraints on

the sentencer’s discretion to ‘decline to impose’ it. This second doctrine—

counterdoctrine would be a better word—has completely exploded whatever coherence the notion of ‘guided discretion’ once had. . . . In short, the practice which in

Furman had been described as the discretion to sentence to death and pronounced

constitutionally prohibited, was in Woodson and Lockett renamed the discretion not

to sentence to death and pronounced constitutionally required.’’ Walton v. Arizona,

497 U.S. 639, 661–62 (1990) (concurring in the judgment). For a critique of these

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

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

(1991). 89 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)). 90 Eddings v. Oklahoma, 455 U.S. 104, 110–11 (1982).

of the character and record of each convicted defendant.’’ 86 Lockett

and Woodson have since been endorsed by a Court majority. 87

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. 88

The Court has explained this apparent contradiction as constituting recognition ‘‘that ‘individual culpability is not always

measured by the category of crime committed,’ ’’ 89 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.’’ 90 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,
AMENDMENT 8—PUNISHMENT FOR CRIME 1483

91Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing function may be

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

circumstance justifying capital punishment duplicates an element of the offense of

first-degree murder does not render the procedure invalid. Lowenfield v. Phelps, 484

U.S. 231 (1988). 92 Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)). 93Zant v. Stephens, 462 U.S. 862, 879 (1983). 94See, e.g., Hitchcock v. Dugger, 481 U.S. 393 (1987) (instruction limiting jury

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

Penry v. Lynaugh, 492 U.S. 302 (1989) (jury must be permitted to give effect to defendant’s evidence of mental retardation and abused background); Skipper v. South

Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant’s good conduct in jail

denied defendant his Lockett right to introduce all mitigating evidence). But cf.

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

revealed by jail behavior may be limited to context of assessment of future dangerousness). 95 ‘‘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).

statutory aggravating circumstances ‘‘play a constitutionally necessary function at the stage of legislative definition [by]

circumscrib[ing] the class of persons eligible for the death penalty,’’ 91 while consideration of all mitigating evidence requires

focus on ‘‘‘the character and record of the individual offender and

the circumstances of the particular offense’’’ consistent with ‘‘‘the

fundamental respect for humanity underlying the Eighth Amendment.’ ’’ 92 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.’’ 93

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. States may also cure

some constitutional errors on appeal through operation of ‘‘harmless error’’ rules and reweighing of evidence by the appellate court.

Also, the Court has constrained the use of federal habeas corpus

to review state court judgments. As a result of these trends, the

Court recognizes a significant degree of state autonomy in capital

sentencing in spite of its rulings on substantive Eighth Amendment

law.

While holding fast to the Lockett requirement that sentencers

be allowed to consider all mitigating evidence, 94 the Court has

upheld state statutes that control the relative weight that the

sentencer may accord to aggravating and mitigating evidence. 95
1484 AMENDMENT 8—PUNISHMENT FOR CRIME

96 Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990). 97 Id. 98 Boyde v. California, 494 U.S. 370 (1990). 99 California v. Brown, 479 U.S. 538, 543 (1987). 100Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S.

433 (1990). 101Zant v. Stephens, 462 U.S. 862 (1983). 102 Barclay v. Florida, 463 U.S. 954 (1983). 103 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,

112 S. Ct. 2114, 2123 (1992) (quoting Chapman v. California, 386 U.S. 18, 24

(1967)).

‘‘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. 96 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, 97 or if the jury finds that aggravating circumstances

outweigh mitigating circumstances. 98 And a court may instruct

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

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

since in essence the instruction merely cautions the jury not to

base its decision ‘‘on factors not presented at the trial.’’ 99 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. 100

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, 101 or on a trial judge’s

consideration of improper aggravating circumstances. 102 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. 103 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 evi-
AMENDMENT 8—PUNISHMENT FOR CRIME 1485

104 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). 105 Johnson v. Mississippi, 486 U.S. 578 (1988). 106 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. 107Payne 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. 108 Id. at 827. Overruling of Booth may have been unnecessary in Payne, inasmuch as the principal ‘‘victim impact’’ evidence introduced involved trauma to a surviving victim of attempted murder who had been stabbed at the same time his

mother and sister had been murdered and who had apparently witnessed those

murders; this evidence could have qualified as ‘‘admissible because . . . relate[d] directly to the circumstances of the crime.’’ Booth, 482 U.S. at 507 n.10. Gathers was

directly at issue in Payne because of the prosecutor’s references to effects on family

members not present at the crime.

dence. 104 By contrast, where there is a possibility that the jury’s

reliance on a ‘‘totally irrelevant’’ factor (defendant had served time

pursuant to an invalid conviction subsequently vacated) may have

been decisive in balancing aggravating and mitigating factors, a

death sentence may not stand in spite of the presence of other aggravating factors. 105

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.’’ 106 New 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. 107 ‘‘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.’’ 108 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 rel-
1486 AMENDMENT 8—PUNISHMENT FOR CRIME

109 Id. at 822 (citation omitted). 110 492 U.S. 302 (1989). 111 489 U.S. 288 (1989). The ‘‘new rule’’ limitation was suggested in a plurality

opinion in Teague. A Court majority in Penry and later cases has adopted it. 112 489 U.S. at 313. The second exception was at issue in Sawyer v. Smith, 497

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

Mississippi rule that the Eighth Amendment is violated by prosecutorial

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

aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the

bedrock procedural elements’ essential to the fairness of a proceeding.’’ Id. at 242. 113Penry, 492 U.S. at 314. Put another way, it is not enough that a decision

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

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

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

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

McKellar, 494 U.S. 407, 415 (1990). 114See, 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

evant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering ‘a glimpse of the life’ which a defendant ‘chose to extinguish,’

or demonstrating the loss to the victim’s family and to society

which have resulted from the defendant’s homicide.’’ 109

The Court’s rulings limiting federal habeas corpus review of

state convictions may be expected to reduce significantly the

amount of federal court litigation over state imposition of capital

punishment. The Court held in Penry v. Lynaugh 110 that its

Teague v. Lane 111 rule of nonretroactivity applies to capital sentencing challenges. Under Teague, ‘‘new rules’’ of constitutional interpretation announced after a defendant’s conviction has become

final will not be applied in habeas cases unless one of two exceptions applies. The exceptions will rarely apply. One exception is for

decisions placing certain conduct or defendants beyond the reach of

the criminal law, and the other is for decisions recognizing a fundamental procedural right ‘‘without which the likelihood of an accurate conviction is seriously diminished.’’ 112 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. 113 While in Penry itself the Court

determined that the requested rule (requiring an instruction that

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

was dictated by Eddings and Lockett, in subsequent habeas capital

sentencing cases the Court has found substantive review barred by

the ‘‘new rule’’ limitation. 114 A second restriction on federal habeas
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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, 112 S. Ct. 1130 (1992) (neither Maynard v. Cartwright,

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

a ‘‘new rule’’). 115Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). 116Lewis 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. 117Sawyer v. Whitley, 112 S. Ct. 2514 (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. 118Murray v. Giarratano, 492 U.S. 1 (1989) (‘‘unit attorneys’’ assigned to prisons

were available for some advice prior to filing a claim). 119 433 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.

review also has ramifications for capital sentencing review. Claims

that state convictions are unsupported by the evidence are weighed

by a ‘‘rational factfinder’’ inquiry: ‘‘viewing the evidence in the light

most favorable to the prosecution, [could] any rational trier of fact

have found the essential elements of the crime beyond a reasonable

doubt.’’ 115 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. 116 A third 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. 117

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. 118

In Coker v. Georgia, 119 the Court held that the state may not

impose a death sentence upon a rapist who does not take a human
1488 AMENDMENT 8—PUNISHMENT FOR CRIME

120 Although the Court stated the issue in the context of the rape of an adult

woman, id. at 592, the opinion at no point sought to distinguish between adults and

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

disproportionate for the rape of an adult woman, but that some rapes might be so

brutal or heinous as to justify it. Id. at 601. 121 Id. at 592. 122 Id. 123 Id. at 598. 124 458 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).

life. 120 The Court announced that the standard under the Eighth

Amendment was that punishments are barred when they are ‘‘excessive’’ in relation to the crime committed. A ‘‘punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing

more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the

crime.’’ 121 In order that judgment not be or appear to be the subjective conclusion of individual Justices, attention must be given to

objective factors, predominantly ‘‘to the public attitudes concerning

a particular sentence—history and precedent, legislative attitudes,

and the response of juries reflected in their sentencing decisions.

. . .’’ 122 While the Court thought that the death penalty for rape

passed the first test, it felt it failed the second. Georgia was the

sole State providing for death for the rape of an adult woman, and

juries in at least nine out of ten cases refused to impose death for

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

the public.’’ 123

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

Florida 124 that death is an unconstitutional penalty for felony

murder if the defendant did not himself kill, or attempt to take life,

or intend that anyone be killed. While a few more States imposed

capital punishment in felony murder cases than had imposed it for

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

the evidence of jury decisions and other indicia of a modern consensus similarly opposed the death penalty in such circumstances.

Moreover, the Court determined that death was a disproportionate

sentence for one who neither took life nor intended to do so. Because the death penalty is a likely deterrent only when murder is

the result of premeditation and deliberation, and because the jus-
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125 Justice O’Connor thought the evidence of contemporary standards did not

support a finding that capital punishment was not appropriate in felony murder situations. Id. 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. 126 481 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. 127 Cabana v. Bullock, 474 U.S. 376 (1986). Moreover, an appellate court’s finding of culpability is entitled to a presumption of correctness in federal habeas review, a habeas petitioner bearing a ‘‘heavy burden of overcoming the presumption.’’

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

does not invariably require comparative proportionality review by a state appellate

court). 128Turner v. Murray, 476 U.S. 28, 36–37 (1986). 129 481 U.S. 279 (1987). The decision was 5–4. Justice Powell’s opinion of the

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

Scalia. Justices Brennan, Blackmun, Stevens, and Marshall dissented. 130 481 U.S. at 308.

tification 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. 125 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.’’ 126 A few years earlier, Enmund had also been weakened by the Court’s holding that the factual finding of requisite intent to kill need not be made by the guilt/innocence factfinder,

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

court. 127

A measure of protection against jury bias was added 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.’’ 128 A year

later, however, the Court ruled in McCleskey v. Kemp 129 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.’’ 130 Just

as important to the outcome, however, was the Court’s application

of the two overarching principles of prior capital punishment cases:
1490 AMENDMENT 8—PUNISHMENT FOR CRIME

131 Id. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens). 132 Id. 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 p. 1857, infra. 133 477 U.S. 399 (1986). 134There was an opinion of the Court only on the first issue, that the Eighth

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

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

opinion would have held the prohibition applicable only for ‘‘those who are unaware

of the punishment they are about to suffer and why they are to suffer it.’’ Id. at

422.135There 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 standthat a state’s system must narrow a sentencer’s discretion to impose the death penalty (e.g., by carefully defining ‘‘aggravating’’ circumstances), but must not constrain a sentencer’s discretion to consider mitigating factors relating to the character of the defendant.

While the dissenters saw the need to narrow discretion in order to

reduce the chance that racial discrimination underlies jury decisions to impose the death penalty, 131 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. 132

The Court has recently grappled with several cases involving

application of the death penalty to persons of diminished capacity.

The first such case involved a defendant whose competency at the

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

Court held in Ford v. Wainwright 133 that the Eighth Amendment

prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of executiontime sanity must be determined in a proceeding satisfying the minimum requirements of due process. 134 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 continues to be so viewed today. And, while no states purport to permit the execution of the insane, a number, including Florida, leave

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

held, fell short of due process because the decision was vested in

the governor, and because the defendant was given no opportunity

to be heard, the governor’s decision being based on reports of three

state-appointed psychiatrists. 135
AMENDMENT 8—PUNISHMENT FOR CRIME 1491

ards than those demanded in any other aspect of a capital proceeding.’’ 477 U.S.

at 411–12. Concurring Justice Powell thought that due process might be met by a

proceeding ‘‘far less formal than a trial,’’ that the state ‘‘should provide an impartial

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

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

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

board, sets forth the Court’s holding. 136Penry v. Lynaugh, 492 U.S. 302, 335 (1989). 137 Id. at 328. 138Thompson v. Oklahoma, 487 U.S. 815 (1988). 139The plurality opinion by Justice Stevens was joined by Justices Brennan,

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

separate opinion; and Justice Scalia, joined by Chief Justice Rehnquist and by Justice White, dissented. Justice Kennedy did not participate.

By contrast the Court in 1989 found ‘‘insufficient evidence of

a national consensus against executing mentally retarded people.’’

While the Court conceded that ‘‘it may indeed be ‘cruel and unusual’ punishment to execute persons who are profoundly or severely retarded and wholly lacking the capacity to appreciate the

wrongfulness of their actions,’’ retarded persons who have been

found competent to stand trial, and who have failed to establish an

insanity defense, fall into a different category. Consequently, the

Court was unwilling to conclude that execution of a mentally retarded person is ‘‘categorically prohibited by the Eighth Amendment.’’ 136 What is required in this as in other contexts, however,

is individualized consideration of culpability: a retarded defendant

must be offered the benefit of an instruction that the jury may consider and give mitigating effect to evidence of retardation or abused

background. 137

There is also no categorical prohibition on execution of juveniles. A closely divided Court has invalidated one statutory scheme

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

capital punishment for crimes committed by 16 and 17 year olds.

Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate

provision allowed juveniles to be treated as adults for some purposes. 138 While four Justices favored a flat ruling that execution

of anyone younger than 16 at the time of his offense is barred by

the Eighth Amendment, concurring Justice O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from

the special care and deliberation that must attend decisions to impose the death penalty. 139 The following year Justice O’Connor

again provided the decisive vote when the Court in Stanford v.
1492 AMENDMENT 8—PUNISHMENT FOR CRIME

140 492 U.S. 361 (1989). The bulk of Justice Scalia’s opinion, representing the

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

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

joined by Justices Marshall, Blackmun, and Stevens, dissented. 141The case of Wilkins v. Missouri was decided along with Stanford. 142 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-oldoffenders). 143 ‘‘A revised national consensus so broad, so clear and so enduring as to justify

a permanent prohibition upon all units of democratic government must appear in

the operative acts (laws and the application of laws) that the people have approved.’’

492 U.S. at 377. 144 Id. at 394–96. 145 Id. at 382.

Kentucky 140 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 141 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. 142

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

state legislatures and Congress have done in setting an age limit

for application of capital punishment. 143 The Stanford dissenters

would broaden this inquiry with 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. 144 Justice O’Connor, while recognizing the Court’s

‘‘constitutional obligation to conduct proportionality analysis,’’ does

not believe that such analysis can resolve the underlying issue of

the constitutionally required minimum age. 145

While the Court continues to tinker with the law of capital

punishment, it has taken a number of steps in the 1980s and early

1990s to attempt to reduce the many 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, and premised on a
AMENDMENT 8—PUNISHMENT FOR CRIME 1493

146See, 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.’’ 147See, 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, 112 S. Ct. 1652 (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). 148 144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135–

36 (1903). 149 217 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.

‘‘death is different’’ rationale, 146 gave way to increasing impatience

with the delays made possible through procedural protections, especially those associated with federal habeas corpus review. 147

Having consistently held that capital punishment is not inherently

unconstitutional, the Court seems bent on clarifying and even

streamlining constitutionally required procedures so that those

states that choose to impose capital punishment may do so without

inordinate delays. Changed membership on the Court is having its

effect; gone from the Court are Justices Brennan and Marshall,

whose belief that all capital punishment constitutes cruel and unusual punishment meant two automatic votes against any challenged death sentence. Strong differences remain over such issues

as the appropriate framework for consideration of aggravating and

mitigating circumstances and the appropriate scope of federal review, but as of 1992 a Court majority seems committed to reducing

obstacles created by federal review of death sentences pursuant to

state laws that have been upheld as constitutional.

Proportionality.—Justice Field in O’Neil v. Vermont 148 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, 149 this view was adopted by the Court in striking down

a sentence in the Philippine Islands of 15 years incarceration at

hard labor with chains on the ankles, loss of all civil rights, and

perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for

other offenses and concluded: ‘‘This contrast shows more than dif-
1494 AMENDMENT 8—PUNISHMENT FOR CRIME

150 Id. at 381. 151Proportionality in the context of capital punishment is considered supra,

pp. 1478–79.

152 370 U.S. 660 (1962). 153 A different approach to essentially the same problem was Thompson v. Louisville, 362 U.S. 199 (1960), in which a conviction for loitering and disorderly conduct was set aside as being supported by ‘‘no evidence whatever’’ that defendant had

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

defendant was ‘‘wandering or strolling around’’ in violation of vagrancy law). 154Fully applied, the principle would raise to constitutional status the concept

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

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

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

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

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

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

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

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

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

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

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

of our criminal justice system in any substantial way.’’ 155 392 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

ferent 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.’’ 150 Punishments as well as fines, therefore, can be condemned as excessive. 151

In Robinson v. California 152 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 which—however it is acquired—physiologically compels the victim to continue using drugs. The case

could stand for the principle, therefore, that one may not be punished for a status in the absence of some act, 153 or it could stand

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

someone for conduct he is unable to control, a holding of far-reaching importance. 154 In Powell v. Texas, 155 a majority of the Justices
AMENDMENT 8—PUNISHMENT FOR CRIME 1495

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,

567.156 445 U.S. 263 (1980). The opinion, by Justice Rehnquist, was concurred in by

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

Justices Powell, Brennan, Marshall, and Stevens. Id. at 285. 157 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.

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

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

Amendment or the due process clauses will govern the requirement

of the recognition of capacity defenses to criminal charges, or

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

The Court has gone back and forth in its acceptance of proportionality analysis in noncapital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle, 156 upholding a

mandatory life sentence under a recidivist statute following a third

felony conviction, even though the defendant’s three nonviolent

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

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

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

the Court than were the brutal prison conditions and the

postrelease denial of significant rights imposed under the peculiar

Philippine penal code. Thus, in order to avoid improper judicial interference into 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 of legislative grace. 157

The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a

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

money, being so subjective, was a legislative task. In any event, the

State could focus on recidivism, not the specific acts. Second, the

comparison of punishment imposed for the same offenses in other

jurisdictions was found unhelpful, differences and similarities being
1496 AMENDMENT 8—PUNISHMENT FOR CRIME

158 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. 159 463 U.S. 277 (1983). The case, as Rummel, was decided by 5–4 vote, with

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

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

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

Court in Helm, and Chief Justice Burger wrote the dissent. 160 463 U.S. at 284, 288. 161The 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. 162 Id. at 297. 163 Id. at 303. 164 Id. at 292. 165For a suggestion that Eighth Amendment proportionality analysis may limit

the severity of punishment possible for prohibited private and consensual homomore 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. 158

Rummel was distinguished in Solem v. Helm, 159 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.’’ 160 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a

small amount of money. 161 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed

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

Rummel.’’ 162 Rummel, the Court pointed out, had been eligible for

parole after 12 years’ imprisonment, while Helm had only the possibility of executive clemency, characterized by the Court as ‘‘nothing more than a hope for ‘an ad hoc exercise of clemency.’ ’’ 163 In

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

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

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

imposed for commission of the same crime in other jurisdictions.’’ 164 Measured by these criteria Helm’s sentence was cruel

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

without possibility for parole was the harshest penalty possible in

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

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

mandated. 165
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sexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478

U.S. 186, 197 (1986). 166 501 U.S. 957 (1991). 167 ‘‘Severe, mandatory penalties may be cruel, but they are not unusual in the

constitutional sense.’’ Id. 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. 168 Because of the ‘‘serious nature’’ of the crime, the 3-Justice plurality asserted

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

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

same crime in other jurisdictions. Id. 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. 169 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437

U.S. 678, 685 (1978)).

The Court remained closely divided in holding in Harmelin v.

Michigan 166 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. 167

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. 168

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.’’ 169 ‘‘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
1498 AMENDMENT 8—PUNISHMENT FOR CRIME

170 452 U.S. at 347. 171 E.g., Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate medical neglect of a

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

1968) (beating prisoner with leather strap violates Amendment). 172 E.g., Hutto v. Finney, 437 U.S. 678 (1978). 173Wilson v. Seiter, 501 U.S. 294 (1991). 174 Id. at 303. 175Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment). 176 Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992) (beating of a shackled prisoner resulted in bruises, swelling, loosened teeth, and a cracked dental plate). 177 309 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). 178 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). Congress encouraged the bringing of much

litigation by enacting the Civil Rights of Institutionalized Persons Act, Pub. L. No.

96–247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq.

pay for their offenses against society.’’ 170 These general principles

apply both to the treatment of individuals 171 and to the creation

or maintenance of prison conditions that are inhumane to inmates

generally. 172 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. 173 In the context of general prison conditions, this culpable state of mind is ‘‘deliberate indifference’’; 174 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. 175 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. 176

Beginning with Holt v. Sarver, 177 federal courts found prisons

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

prison conditions and ameliorating prison life were imposed in

more than two dozen States. 178 But while the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the

federal courts to proceed with deference to the decisions of state
AMENDMENT 8—PUNISHMENT FOR CRIME 1499

179 Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337

(1981).

180See, 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.

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

Suffolk County Jail, 112 S. Ct. 748 (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).

182 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.

legislatures and prison administrators. 179 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. 180 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.’’ 181

Limitation of the Clause to Criminal Punishments.—The

Eighth Amendment deals only with criminal punishment, and has

no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the

cruel and unusual punishments clause ‘‘circumscribes the criminal

process in three ways: First, it limits the kinds of punishment that

can be imposed on those convicted of crimes; second, it proscribes

punishment grossly disproportionate to the severity of the crime;

and third, it imposes substantive limits on what can be made

criminal and punished as such.’’ 182 These limitations, the Court

thought, should not be extended outside the criminal process.