Eighth Amendment:

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

The Court first addressed the Eighth Amendment implications of the death penalty in 1879 in Wilkerson v. Utah.1 Wilkerson had been convicted and sentenced to death by firing squad under Utah territorial law. Reluctant “to define with exactness” the range of punishments the Amendment might prescribe, the Court concluded that execution by shooting was not among them because of the regularity of execution by shooting under military law.2 A decade later in In re Kimmler,3 the Court found no constitutional obstacle to execution under a statute that called for electrocution as a more humane method of carrying out the death penalty. Finally, while the 1910 case of Weems v. United States was not a death penalty case,4 it was significant to the Supreme Court’s capital punishment jurisprudence because the Court in Weems first discerned the evolutionary and proportionality features of the Cruel and Unusual Punishments Clause that the Court would apply in later capital punishment cases.

In its 1958 decision Trop v. Dulles, the majority refused to consider “the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.” 5 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. A series of cases testing how the death penalty was imposed6 culminated in the Court holding in its 1971 McGautha v. California decision that the death sentence practices than in use were constitutional.7 The Court stated: “The procedures which petitioners challenge are those by which most capital trials in this country are conducted and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair.” 8

The Court added another major guideline in 2002, holding that the Sixth Amendment right to trial by jury comprehends the right to have a jury make factual determinations on which a sentencing increase is based.9 This means that capital sentencing schemes are unconstitutional if judges are allowed to make factual findings as to the existence of aggravating circumstances that are prerequisites for imposing a death sentence.

Footnotes

1

99 U.S. 130 (1879).

2

Id. at 134-35.

3

136 U.S. 436 (1890). See also Calton v. Utah, 130 U.S. 83 (1889) (reversing conviction when jury had not been told it could recommend hard labor for life instead of the death penalty).

4

Weems, 217 U.S. 349 (1910), overturned a sentence of imprisonment in irons at hard labor for 12 years following conviction for the offense of falsifying public records.

5

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

6

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 imposition of death “on a convicted rapist who has neither nor endangered human life,” and presented a line of argument questioning the general validity of the death penalty under the Eighth Amendment. The Court addressed exclusion of death-scrupled jurors in Witherspoon v. Illinois, 391 U.S. 510 (1968) and subsequent cases explicating it as discussed under the Sixth Amendment, . See also Andres v. United States, 333 U.S.740 (1948).

7

402 U.S. 183 (1971). McGautha was decided in the same opinion with Crampton v. Ohio. McGautha raised the question of whether providing for imposing the death penalty absent 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 in the opinion for the Court held that the standards were not required because, ultimately, it was impossible to define with any degree of specificity which defendant should live and which die; although bifurcated proceedings might be desirable, they were not required by due process. Id.

8

Id. at 221.

9

Ring v. Arizona, 536 U.S. 584 (2002). See also Hurst v. Florida, 577 U.S. 92, 94 (2016).