Capital Punishment

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


The Court’s 1972 decision in Furman v. Georgia,57 finding constitutional deficiencies in the manner in which the death penalty was arrived at but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run the ruling may have had only minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in extensive review of capital sentences.58 Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 follow-up cases that reviewed state laws revised in light of Furman reaffirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review. Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

While the Court continues to tinker with application of these principles, it also has taken steps 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 that were premised on a “death is different” rationale.59 Later, the Court grew increasingly impatient with the delays that were made possible through procedural protections, especially those associated with federal habeas corpus review.60 Having consistently held that capital punishment is not inherently unconstitutional, the Court seemed 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. In the habeas context, the interest in finality at first trumped a death-is-different approach.61 Then, in In re Troy Anthony Davis,62 the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, “refuse[d] to endorse” Justice Scalia’s reasoning (in a dissent joined by Justice Thomas) that would read the Constitution to permit the execution of a convict “who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.”

The writ has also been restricted statutorily.63

Changed membership on the Court has had an effect. Gone from the Court are several Justices who believed that all capital punishment constitutes cruel and unusual punishment, often resulting in consistent votes to issue stays against any challenged death sentence.64 While two current members of the Court have recently concluded that the “death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment,’”65 a majority of the Court has held that it is “settled that capital punishment is constitutional,” resulting in most challenges focusing on how the death penalty is applied, such as the consideration of aggravating and mitigating circumstances and the appropriate scope of federal review.66

57 408 U.S. 238 (1972).

58 See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355 (1995).

59 See, 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.”

60 See, 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, 503 U.S. 653 (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).

61 In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position that “the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus,” and also declared that, because of “the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. at 417. In a subsequent part of the opinion, however, the Court assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing. 506 U.S. at 417–419.

62 557 U.S. ___, No. 08–1443 (2009).

63 See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, 110 Stat. 1214.

64 For example, the position of Justices Brennan and Marshall that the “death penalty is unconstitutional in all circumstances” resulted in two automatic votes against any challenged death sentence during their time on the Court. See, e.g., Lenhard v. Wolff, 444 U.S. 807, 808 (1979) (Brennan & Marshall, JJ., dissenting). Justice Blackmun, who retired in 1994, concluded late in his career that the Court’s effort to reconcile the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed and that the death penalty, “as currently administered, is unconstitutional.” See Callins v. Collins, 510 U.S. 1141, 1159 (1994) (Blackmun, J., dissenting). Justice Stevens, who retired from the Court in 2010, concluded in a 2008 case that the death penalty is “patently excessive and cruel and unusual punishment violative of the Eighth Amendment” because of what he perceived as its “negligible returns.” See Baze v. Rees, 553 U.S. 35, 86 (2008) (Stevens, J., concurring) (internal citations and quotations omitted). Nonetheless, because the “Court has held the death penalty constitutional” and out of “respect” for the Court’s precedents, Justice Stevens’ remaining years on the Court did not yield automatic votes against the death penalty akin to those of Justices Brennan, Marshall, and Blackmun.

65 See Glossip v. Gross, 576 U.S. ___, No. 14–7955, slip op. at 2 (2015) (Breyer & Ginsburg, JJ., dissenting).

66 See id. at 4 (Alito, J., joined by Roberts, C.J., and Scalia, Kennedy, and Thomas, JJ.).

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