The Proportionality Doctrine

The Eighth Amendment prohibition against cruel and unusual punishments clearly was not intended by the Framers to proscribe the death penalty. But as early as 1910 the Court recognized that the meaning of the Eighth Amendment is not frozen in time. Punishments must be proportional to the crime, and a society’s conception of proportionality may change over time. In 1958, the Court held that the Eighth Amendment draws its meaning “from the evolving standards of decency that mark the progress of a maturing society,” setting the stage for review of capital punishment as a permissible penalty for particular crimes and offenders.

Litigating the Death Penalty

Early challenges to capital punishment did not question the constitutionality of the death penalty itself, but rather the circumstances under which it is imposed. In Witherspoon v. Illinois (1968) the Court overturned a state statute that automatically excluded opponents of the death penalty from juries in capital cases as a violation of the Sixth and Fourteenth Amendments. In McGautha v. California (1971) the Court upheld a state statute giving juries complete discretion over whether to impose the death penalty in capital cases. But in Furman v. Georgia (1975) the Court considered for the first time whether the death penalty violated the Eighth Amendment prohibition of cruel and unusual punishment. The Court held that while the death penalty itself was constitutional, it was administered capriciously in Georgia and therefore not constitutional there. The case led to a moratorium on executions in the United States pending the revision of state laws to give juries objective guidelines in imposing the death penalty. The Court upheld the revised statutes as constitutional, thus validating capital punishment as a permissible penalty. However, the Court would continue to narrow the circumstances under which it might be imposed.

Proportionality and the Death Penalty

The proportionality doctrine was used to limit the instances in which the death penalty could be imposed. The Court held that capital punishment was disproportional to the offense of rape in Coker v. Georgia (1977). It extended that ruling to cases involving the rape of children in Kennedy v. Louisiana (2008). In effect, the cases held that only the taking of life justifies the taking of life.

Juveniles and the Death Penalty

In Thompson v. Oklahoma (1988) the Court held the death penalty cruel and unusual when applied to a fifteen-year-old. But the penalty was upheld a year later with respect to sixteen- and seventeen-year-old defendants. The Court came to these disparate conclusions by looking to the practice of states for evidence of current standards of decency.

Capital Punishment and Race

Civil rights activists have long criticized the death penalty for its disproportionate impact on minorities. In McCleskey v. Kemp (1987), the Court rejected an equal protection challenge to the death penalty in Georgia, where blacks who killed whites were 4.3 times more likely to be sentenced to death than defendants who killed blacks. The Court held that absent a showing of actual racial bias in the petitioner’s case, such statistical evidence itself could not sustain an equal protection challenge. In 2009 North Carolina passed a law allowing the admission of statistical evidence of racial bias in challenges to a death sentence, but the law was repealed by the state legislature in 2013.

Habeas Corpus and the Death Penalty

Sequential habeas corpus appeals became an effective strategy for death row inmates to delay execution indefinitely. The Court put an end to the practice in McCleskey v. Zant (1991), ruling that when a capital conviction has been upheld by the highest state court, the prisoner has six months in which to file one habeas petition raising as many issues as the prisoner wants.

Death Sentences and the Sixth Amendment

In Ring v. Arizona (2002), the Court applied the rule of Apprendi v. New Jersey (2000) in holding that juries, not judges, must determine whether the aggravating circumstances necessary to support a death sentence have been met.

Narrowing the Death Penalty

In Atkins v. Virginia (2002), the Court overturned a 1989 ruling allowing the execution of mentally retarded offenders as a violation of the Punishments Clause of the Eighth Amendment. Times had changed, according to the majority, and with them society’s evolving standards of decency had changed. The execution of mentally retarded offenders was held to be no longer constitutionally permissible. The ruling was and remains highly controversial, and will be revisited by the Court in Hall v. Florida in 2014.

Execution of Juveniles Ends

In Roper v. Simmons, the Court ruled in a 5–4 decision that the death penalty is unconstitutional for offenders under the age of eighteen. The Court held that the prohibition of the juvenile death penalty by thirty states was sufficient evidence of a national consensus that the execution of minors was cruel and unusual. The majority also cited world opinion on the matter. As with Atkins, the decision was highly controversial, particularly the reference to foreign law in overturning domestic legislation. Critics also questioned the propriety of making the Supreme Court the moral voice of the nation.