The Eighth Amendment of the Constitution forbids cruel and unusual punishment, but this does not categorically prohibit the death penalty. The federal government still can impose capital punishment, and some states have kept these laws despite a growing trend toward abolition at the state level. The Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment ban on cruel and unusual punishment and applies it to the states. When reviewing an Eighth Amendment challenge, a court must decide whether a punishment is cruel or unusual according to evolving standards of decency in the community. They must consider objective factors that may show changes in social norms.
During the 1970s, the death penalty was abolished and then reinstated. First, the Supreme Court determined in Furman v. Georgia that existing sentencing procedures in capital cases violated the Eighth Amendment because evidence showed that the death penalty was applied in discriminatory ways. Defendants from minority populations or impoverished backgrounds were disproportionately likely to receive capital punishment. Just a few years later, though, the Court reversed course in Gregg v. Georgia. It determined that the revised sentencing procedures in capital cases did not violate the Eighth Amendment, since they addressed the issue of discrimination. The Court also noted that the death penalty does not inherently violate the Constitution. It emphasized the role of capital punishment in deterring crime and providing retribution.
Constitutionality of Execution MethodsStates have substantial discretion in determining methods of execution. A method must not cause unnecessary suffering, but this restriction has been narrowly interpreted. For example, hanging and electrocution have not been invalidated on Eighth Amendment grounds. The primary execution method in the US, lethal injection, has been upheld by the Supreme Court on multiple occasions. The Court has reasoned that it is not "objectively intolerable."
Proportionality Under the Eighth Amendment
The Eighth Amendment requires that a punishment must be proportionate to the crime for which it is imposed. According to the Supreme Court, this involves three factors:
In a case involving child rape, the Court ruled that capital punishment must not be imposed as long as the victim survives. It reviewed state sentencing rules for child rape cases and determined that only six states allowed the death penalty for this crime. This was sufficiently rare to find that it violated the Eighth Amendment and should not be imposed at all. In 2008, the Court indicated that the death penalty for crimes against individuals should be limited to homicide cases.
Individualized Sentencing Procedures
Before a court can sentence a defendant to death, it must apply an individualized sentencing process. Any death penalty decision by a jury must be based on the specific facts of the case and the defendant. However, the death penalty does not violate the Eighth Amendment when the jury decides that aggravating and mitigating factors carry equal weight.
Sometimes an appellate court reviews the aggravating factors that resulted in a death sentence. If it throws out one or more of these factors, the underlying death sentence generally will be invalidated on constitutional grounds. The death sentence may remain in effect, though, if another aggravating factor properly found by the jury involves the same circumstances as the factor that was thrown out.
Categorical Death Penalty ExclusionsThe Eighth Amendment prohibits imposing the death penalty on the following types of defendants:
Last reviewed June 2024
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