Is the death penalty consistent with the Eighth Amendment's prohibition against theimposition of cruel and unusual punishments? The Supreme Court considered various applicationsof the death penalty in the 1930s, 40s and 50s. (1) In each case, it upheld the state's action without addressing thebroader issue of the constitutionality of the death penalty. In a 5-4 decision in 1972, Furman v. Georgia , (2) the Supreme Court invalidated federal and state capital punishmentlaws which permitted wide discretion in the application of the death penalty. With one Justicecharacterizing the death penalty laws as "capricious," (3) the majority ruled that they constituted cruel and unusualpunishment in violation of the Eighth Amendment and the due process guarantees of the FourteenthAmendment based upon the inherent arbitrariness of their application particularly in the case ofracial minorities and the poor. (4) The hundreds of inmates on death row who had been sentenced to die between 1967 and1972 had their death sentences commuted as a result of Furman , (5) but those numbers began tochange again as states enacted revised legislation tailored to satisfy the Supreme Court's objectionsto arbitrary and capricious decisions which permitted the application of the death sentence. On July2, 1976, the Supreme Court reviewed the post- Furman capital punishment statutes of five states (6) in a series of five cases. Therevised laws were of two major types: The first type provided for guided discretion which wasupheld by the Supreme Court in three cases. (7) The second type consisted of those statutes which provided for amandatory death sentence for specific crimes, and allowed no judicial or jury discretion beyond thedetermination of guilt. These statutes were held to be unconstitutional. (8) In sum, what may be gleanedfrom these five cases suggest that while the sentencing authority may possess some discretion, itcannot be the unbridled discretion which was found impermissible in Furman . The discretion mustbe limited and directed in order to minimize the potential for arbitrary and capricious actions. Capital punishment may only be imposed under procedures that provide sentencers withthose aggravating factors which will support imposition of the penalty and that require sentencersto take into account any evidence offered in mitigation for the defendant. Aggravating factors, established either as elements of the capital offense or as statutoryfactors to be found by the sentencing judge or jury, must be sufficiently clear and restricting. According to the Supreme Court's decision in Zant v. Stephens , "To avoid capricious and arbitrarydecisions, states that use aggravating circumstances to impose the death penalty. . . must reasonablyjustify the imposition of a more severe sentence for the defendant compared to others found guiltyof murder." (9) The aggravating factors may not be so vague as to invite a return to the arbitrary inflictionof the penalty that the Court saw in Furman . In Maynard v. Carwright , (10) the Court made clear thatnot every murder could fall under the "specially heinous, atrocious or cruel" aggravatingcircumstance and that the state must construe such an aggravating circumstance so that there wouldbe some principled way to distinguish the few cases in which the aggravating circumstance appliesfrom the many cases in which it does not. The test for whether a particular aggravating factor passesconstitutional muster is whether "the statutory language is itself too vague to provide any guidanceto the sentencer. If so [the question becomes] whether the . . . courts have further defined the vagueterms. . . [so as] to provide some guidance to the sentencer." (11) In Lockett v. Ohio , (12) the Supreme Court required many states to revise their deathpenalty statutes by ruling that the sentencing authority in capital cases must consider every possiblemitigating factor to the crime rather than limiting the mitigating factors that could be considered toa specific list. (13) In Smith v. Texas , (14) theCourt recently confirmed the principle when it overturned Smith's death sentence based uponprevious Court precedents requiring judges to include in their jury instructions that proper andmeaningful consideration be given to all mitigating evidence. Smith argued that jurors weren'tallowed to consider evidence including that he was 19 at the time of the robbery during which themurder occurred, that he had a troubled home life, and that he had a low IQ and learning disability;the Texas court erroneously rejected the claim, saying that it wasn't relevant because there was nolink between murder and his diminished capacity. In 1982, the Supreme Court was asked to decide whether the execution of a juvenile offenderwas permissible under the Constitution. Eddings v. Oklahoma (15) was the first case the Courtagreed to hear based on the age of the offender who was 16 at the time he murdered a police officer. Without deciding on the constitutionality of the juvenile death penalty, the Court vacated thejuvenile's death sentence on the basis that the trial had failed to consider additional mitigatingcircumstances. (16) However, the case was significant because the Court decided that the chronological age of a minoris a relevant mitigating factor that must be considered at sentencing. (17) Writing for the majority, Justice Powell stated: "... youth is more than a chronological fact. It is atime and condition of life when a person may be most susceptible to influence and to psychologicaldamage. Our history is replete with laws and judicial recognition that minors, especially in theirearlier years, generally are less mature and responsible than adults." (18) In 1988, the Supreme Court did consider this particular issue in Thompson v.Oklahoma . (19) In a 5-3 decision, the Court vacated the death sentence of the defendant who at age 15participated in the brutal murder of his former brother-in-law. Four justices agreed that theexecution of a 15-year-old would be cruel and unusual punishment per se (in, or byitself). (20) Applying the test of Eighth Amendment analysis, Justices Stevens, Brennan, Marshall, andBlackmun were of the opinion that the execution would constitute cruel and unusualpunishment because it was "inconsistent with our respect for the dignity of men" and it failedto contribute to the two principal social purposes of the death penalty: retribution anddeterrence. (21) Justice O'Connor concurred, but noted that Oklahoma's death penalty statute set no minimumage at which the death penalty could be imposed. (22) Sentencing a 15-year-old under the Oklahoma statute wasinconsistent with the standard for special care and deliberation required in death penaltycases. (23) In 1989, in Stanford v. Kentucky (24) and Wilkins v. Missouri (25) the SupremeCourt held in a 5-4 decision that the Eighth Amendment does not prohibit the death penalty forcrimes committed at age 16 (Wilkins) or 17 (Stanford). While the Thompson plurality usedthe three-part analysis to determine if sentencing a juvenile to death constituted cruel andunusual punishment, the Stanford plurality did not. The Thompson v. Oklahoma's standardEighth Amendment analysis consisted of an evaluation of: (a) evolving standards of decency;(b) the behavior of juries and legislators to determine what is abhorrent to the conscience ofthe community; and (c) because of the juvenile's reduced culpability, the punishment isdisproportionate to the severity of the crime and the application of the death penalty to thisclass of offenders does not measurably contribute to the purposes underlying the penalty. The Stanford plurality decision rejected the third element of the three part analysis, to wit, that thepunishment is disproportionate to the severity of the crime and makes no measurablecontribution to its deterrence. (26) In Stanford v. Kentucky, the Supreme Court considered the evolving standards ofdecency in society as reflected in historical, judicial, and legislative precedents; currentlegislation; juries' and prosecutors' views; and public, and professional opinions. (27) However, the Courtbased its determination of evolving standards of decency on legislative authorization of capitalpunishment for an individual who murders at 16 or 17 years of age and it does not, said theCourt, offend the Eighth Amendment's prohibition against cruel and unusualpunishment. (28) The Court referred to contemporary standards of decency in this country and concluded thatthe Eighth and Fourteenth Amendments did not proscribe the execution of a juvenile over 15but under 18. (29) The Court noted that those states that permitted the death penalty for 16 and 17-year-oldoffenders indicate that there was no national consensus which was "sufficient to label aparticular punishment cruel and unusual." (30) A plurality of the Court rejected the suggestion that it (theCourt) should bring its own judgment to bear on the desirability of permitting the deathpenalty for juveniles. (31) The Court also found that public opinion polls andprofessional associations were "uncertain foundations" on which to base constitutionallaw. (32) The dissenting judges argued that the record of state and federal legislation protectingjuveniles because of their inherent immaturity was not relevant in formulating a nationalconsensus. (33) In 1997, Christopher Simmons was tried, convicted, and sentenced to death for firstdegree murder for a crime that he committed at age 17. He appealed to the Missouri SupremeCourt, which affirmed the conviction and the sentence. (34) On his initialappeal, Simmons could not argue that his youth prohibited his execution because the U.S.Supreme Court held in 1989 in Stanford v. Kentucky that there was no national consensusagainst the execution of young adults who were 16 or 17-years-of-age at the time of theircrimes and, as a result, executing juveniles was not considered "cruel and unusual"punishment under the Eighth Amendment. (35) Hence, the Missouri Supreme Court affirmed the CircuitCourt of Jefferson County Missouri on the death sentence.