Eighth Amendment:

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

In Furman v. Georgia, the Supreme Court found the death penalty to be invalid, however only two of the Justices in Furman thought the death penalty to be invalid in all circumstances.1 Consequently, states that wished to reinstate the penalty concentrated upon drafting statutes that would correct the faults identified by the Justices in the other three majority opinions. Following Furman, thirty-five states enacted death penalty statutes,2 which, in turn, led to renewed litigation over the death penalty. In these cases, the Court’s jurisprudence appeared to indicate that, as a general matter, only criminal acts that result in the deliberate taking of human life or concern a reckless indifference to the taking of human life in the case of a felony murder may be punished by the death penalty.3

Post-Furman, the Court identified several procedures to use to ensure application of the death penalty is constitutional. The Court determined that the death penalty for intentional 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 crime are; and that standards and procedures should be established to remove or mitigate the arbitrariness in applying the death penalty that the Justices had criticized in Furman.4 Divisions among the Justices, however, made it difficult to ascertain what statutory schemes would be permissible.5

Because three of the Justices in the Furman majority thought problems with the death penalty arose from it being applied in a discriminatory or arbitrary manner,6 state legislatures enacted statutes to correct this problem. One approach was to impose the death penalty automatically upon conviction for certain forms of murder. More commonly, states established special procedures for capital cases, and specified aggravating and mitigating factors that the sentencing authority must consider in imposing a capital sentence. In five cases in 1976, the Court rejected automatic sentencing, but approved other statutes specifying factors for jury consideration.7

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment.8 Although there were differences of degree among the seven Justices in the majority on this point, they all seemed to concur that reenactment of capital punishment statutes by thirty-five states precluded the Court from concluding that the death penalty was no longer acceptable to a majority of Americans.9 Rather, the Court concluded, a large portion of American society continued to regard the death penalty as an appropriate and necessary criminal sanction. The Court stated: “Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” 10 The Court also found that it could not rule that the death penalty to be inconsistent with the basic concept of human dignity at the core of the Eighth Amendment. In Gregg v. Georgia, the Court noted that courts are not free to substitute their own judgments for the people and their elected representatives, stating:

The Court also recognized that a death penalty statute, like all other statutes, bears a presumption of validity that can be overcome only upon a strong showing by those who attack its constitutionality.12 Because the state legislatures have judged the death penalty to serve the permissible functions of retribution and deterrence, the Court reasoned, those judgments are entitled to deference.13 Therefore, inflicting death as a punishment for murder is not without justification and is not unconstitutionally severe. Nor is death a disproportionate punishment to the crime of murder.14

Second, however, a different majority concluded that statutes mandating imposition of death for crimes classified as first-degree murder violate the Eighth Amendment. A review of history, traditional usage, legislative enactments, and jury determinations led the plurality to conclude that mandatory death sentences had been rejected by contemporary standards. Moreover, mandatory sentencing precludes an individualized “consideration of the character and record of the . . . offender and the circumstances of the particular offense” that “the fundamental respect for humanity underlying the Eighth Amendment” requires in capital cases.15

A third principle established by the 1976 cases was that the procedure by which a death sentence is imposed must be structured to reduce arbitrariness and capriciousness as much as possible.16 What emerged from the prevailing plurality opinions in these cases are (1) that the sentencing authority, jury or judge,17 have standards to govern imposing the death penalty and be given the opportunity to evaluate the circumstances of the offense and the character and propensities of the accused;18 (2) that, to prevent jury prejudice on the issue of guilt, there be a separate proceeding after conviction at which evidence relevant to the sentence, mitigating and aggravating, be presented;19 (3) that special forms of appellate review be provided not only for the conviction but also for the sentence, in order to ascertain that the sentence was fairly imposed in light of the individual case’s facts and the penalties imposed in similar cases.20 The Court later ruled, however, that proportionality review is not constitutionally required.21 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.” 22

Footnotes

1

Furman v. Georgia, 408 U.S. 238 is a per curiam opinion in support of which Justices Douglas, Brennan, Stewart, White and Marshall wrote separate opinions. Chief Justice Burger and Justices Blackmun, Powell and Rehnquist filed separate dissenting opinions. Justices Brennan and Marshall believed capital punishment constituted cruel and unusual punishment in violation of the Eighth Amendment and Fourteenth Amendments. Id. at 305, 370. The three other concurring Justices considered the capital punishment statutes at issue constitutionally defective in their operation.

2

Gregg v. Georgia, 428 U.S. 153, 179-180 (1976)

3

On crimes not involving the taking of life or the actual commission of the killing by a defendant, see Coker v. Georgia, 433 U.S. 584 (1977 (rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of an eight-year-old child); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder where defendant aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place). Compare Enmund with Tison v. Arizona, 481 U.S. 137 (1987) (death sentence upheld where defendants did not kill but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial).

Those cases in which a large threat to the lives of many may have been present, as in airplane hijackings, may constitute an exception to the Court’s narrowing of the crimes for which capital punishment may be imposed. The federal hijacking statute, 49 U.S. §46502, imposes the death penalty only when a death occurs during commission of the hijacking. By contrast, the treason statute, 18 U.S.C. §2381, permits the death penalty in the absence of a death, and represents a situation in which great and fatal danger might be present. But the treason statute also constitutes a crime against the state, which may be significant. In Kennedy v. Louisiana, 554 U.S. 407, 437 (2008) in overturning a death sentence imposed for the rape of a child, the Court wrote, “Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.”

4

See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Justices Brennan and Marshall adhered to the view that the death penalty is per se unconstitutional. E.g., Coker. 433 US. at 600; Lockett v. Ohio, 438 U.S. 586, 619 (1978); Enmund, 400 U.S. at 801.

5

A comprehensive evaluation of the multiple approaches followed in Furman-era cases may be found in Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978)

6

Thus, Justice Douglas thought the penalty had been applied discriminatorily. Furman, 428 .S. 238. Justice Stewart thought it “wantonly” and “freakishly” imposed, id. at 310, and Justice White thought it had been applied so infrequently and undistinguishably that it served no justifying end. Id. at 313.

7

The principal opinion was in Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a statute providing for a bifurcated proceeding separating 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 (196) (a statute generally similar to Georgia’s, with the exception that the trial judge, rather than the jury, was directed to weigh statutory aggravating factors against statutory mitigating factors), and Jurek v. Texas, 428 U.S. 262 (1976) (a statute construed as narrowing the death-eligible class of cases, and lumping mitigating factors into consideration of 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 the death penalty for first-degree murder).

8

See, e.g., Gregg v. Georgia, 428 U.S. 153, 169 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) ( “We now hold that the punishment of death does not invariably violate the Constitution.” ).

9

Id. at 179-180 ( “The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person.” ).

10

Id. at 184.

11

Id. at 186-187.

12

Id. at 153 ( “Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. An a heavy burden rests on those who would attack the judgment of the representatives of the people.”

13

Id. at 186-187.

14

Gregg, 428 U.S. at 168-87 (Justices Stewart, Powell, and Stevens); Roberts, 428 U.S. at 350-56 (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). The views summarized in the text are those of in the Stewart opinion in Gregg. Justice White’s opinion basically agrees with this Stewart’s 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 in Gregg, reiterating their Furman views. Gregg, 428 U.S. at 227, 231.

15

Woodson, 428 U.S. 280; Roberts, 428 U.S. 325. Justice Stewart, with Justices Powell and Stevens announced the judgment of the Court in which Justices Brennan and Marshall concurred on the basis of their views on the death penalty. Id. at 305, 306, 336.

16

Justice Stewart explained the plurality holding thus: “[T]he holding of the Court may be viewed as the position taken by those three Members [of the Court] who concurred in the judgment on the narrowest grounds.” Gregg, 428 U.S. at 169 n. 15 (1976). While this comment was directed at the Furman opinions, it was equally applicable to Gregg and its four companion cases and to Lockett. See Marks v. United States, 430 U.S. 188, 193-94 (1977) (making the same point with respect to Furman and quoting the Stewart footnote).

17

The Stewart plurality noted its belief that jury sentencing in capital cases performs an important social function in maintaining the link between contemporary community values and the criminal justice system, but agreed that sentencing may constitutionally be vested in the trial judge. Gregg, 428 U.S. at 190. Subsequently, however, the Court issued several opinions holding that the Sixth Amendment right to a jury trial is violated if a judge makes factual findings (e.g., as to the existence of aggravating circumstances) upon which a death sentence is based. Hurst v. Florida, 577 U.S. 92, 94 (2016); Ring v. Arizona, 536 U.S. 584 (2002). Notably, one Justice in both Hurst and Ring would have found that the Eighth Amendment—not the Sixth Amendment—requires that “a jury, not a judge, make the decision to sentence a defendant to death.” Ring, 536 U.S. at 614 (Breyer, J. concurring in the judgment). See also Hurst, 57 U.S. at 103 (Breyer, J. concurring in the judgment).

18

Gregg, 428 U.S. at 188-95. Justice White seemed close to the plurality on the question of standards, id. at 20 (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, 319-321 (1976) (dissenting). In McGautha v. California, 402 U.S. 183, 207-8 (1971), the Court had rejected the argument that the absence of standards violated the Due Process Clause. On the continued vitality of McGautha, see Gregg, 428 U.S. at 195 n.47, and Lockett, 438 U.S. at 598-99. 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, 428 U.S. at 275-76. 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 the Self-Incrimination and Counsel Clauses apply to psychiatric examinations, at least when a doctor testifies about his conclusions with respect to future dangerousness).

19

Gregg, 428 U.S. at 163, 190-92, 195 (plurality opinion). McGautha, 402 U.S. 183, 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, 428 U.S. at 358, rejected bifurcation and viewed the plurality as requiring it. All of the states with post-Furman capital sentencing statutes took the clue by adoping 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).

20

Gregg, 428 U.S.at 195, 198 (plurality); Proffitt v. Florida, 428 U.S.2421, 250-51, 253 (1976) (plurality); Jurek, 428 U.S. at 276 (plurality).

21

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

22

Id. at 50.