Amdt8.3 Cruel and Unusual Punishments

Eighth Amendment:

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

During congressional consideration of the Cruel and Unusual Punishments Clause one Member objected to the import of [the words] being too indefinite and another Member said: No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.1 It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants, 2 but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments. 3 Though few in number, the decisions of the Supreme Court interpreting this guarantee have applied it in both senses.

Style of Interpretation

At first, the Court was inclined to an historical style of interpretation, determining whether a punishment was cruel and unusual by looking to see if it or a sufficiently similar variant had been considered cruel and unusual in 1789. 4 In Weems v. United States, 5 however, the Court concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of a coercive cruelty being exercised through other forms of punishment. The Amendment therefore was of an expansive and vital character6 and, in the words of a later Court, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.7 The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases. 8

Application and Scope

Well over a century ago, the Court began defining limits on the scope of criminal punishments allowed under the Eighth Amendment, noting that while [d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, it is safe to affirm that punishments of torture, such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are forbidden by . . . [the] Constitution.9 Nonetheless, in the context of capital punishment, the Court has upheld the use of a firing squad 10 and electrocution, 11 generally viewing the Eighth Amendment to prohibit punishments that involve the unnecessary and wanton infliction of pain.12 In three more cases, the Supreme Court held that the various lethal injection protocols withstood scrutiny under the Eighth Amendment, finding that none of the challenged protocols presented a substantial risk of serious harm or an objectively intolerable risk of harm.13

Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles. 14 The Court viewed divestiture as a penalty more cruel and more primitive than torture, because it entailed statelessness or the total destruction of the individual’s status in organized society. The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment. A punishment must be examined in light of the basic prohibition against inhuman treatment, and the Amendment was intended to preserve the basic concept . . . [of] the dignity of man by assuring that the power to impose punishment is exercised within the limits of civilized standards.15

Capital Punishment

The Court’s 1972 decision in Furman v. Georgia, 16 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. 17 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. 18 Later, the Court grew increasingly impatient with the delays that were made possible through procedural protections, especially those associated with federal habeas corpus review. 19 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. 20 Then, in In re Troy Anthony Davis, 21 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. 22

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. 23 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,'24 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. 25

General Validity and Guiding Principles

In 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.26 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. The answers were not, it is fair to say, consistent.

A series of cases testing the means by which the death penalty was imposed 27 culminated in what appeared to be a decisive rejection of the attack in McGautha v. California. 28 Nonetheless, the Court then agreed to hear a series of cases directly raising the question of the validity of capital punishment under the Cruel and Unusual Punishments Clause, and, to considerable surprise, the Court held in Furman v. Georgia29 that the death penalty, at least as administered, violated the Eighth Amendment. There was no unifying opinion of the Court in Furman; the five Justices in the majority each approached the matter from a different angle in a separate concurring opinion. Two Justices concluded that the death penalty was cruel and unusual per se because the imposition of capital punishment does not comport with human dignity30 or because it is morally unacceptable and excessive.31 One Justice concluded that because death is a penalty inflicted on the poor and hapless defendant but not the affluent and socially better defendant, it violates the implicit requirement of equality of treatment found within the Eighth Amendment. 32 Two Justices concluded that capital punishment was both cruel and unusual because it was applied in an arbitrary, wanton, and freakish manner 33 and so infrequently that it served no justifying end. 34

Because only two of the Justices in Furman thought the death penalty to be invalid in all circumstances, those who wished to reinstate the penalty concentrated upon drafting statutes that would correct the faults identified in the other three majority opinions. 35 Enactment of death penalty statutes by 35 states following Furman led to renewed litigation, but not to the elucidation one might expect from a series of opinions. 36 Instead, although the Court seemed firmly on the path to the conclusion that only criminal acts that result in the deliberate taking of human life may be punished by the state’s taking of human life, 37 it chose several different paths in attempting to delineate the acceptable procedural devices that must be instituted in order that death may be constitutionally pronounced and carried out. To summarize, the Court determined that the penalty of death for deliberate 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 his crime are cruel and unusual, and that standards and procedures may be established for the imposition of death that would remove or mitigate the arbitrariness and irrationality found so significant in Furman. 38 Divisions among the Justices, however, made it difficult to ascertain the form that permissible statutory schemes may take. 39

Because the three Justices in the majority in Furman who did not altogether reject the death penalty thought the problems with the system revolved about discriminatory and arbitrary imposition, 40 legislatures turned to enactment of statutes that purported to do away with these difficulties. One approach was to provide for automatic imposition of the death penalty upon conviction for certain forms of murder. More commonly, states established special procedures to follow in capital cases, and specified aggravating and mitigating factors that the sentencing authority must consider in imposing sentence. In five cases in 1976, the Court rejected automatic sentencing, but approved other statutes specifying factors for jury consideration. 41

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment. 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 35 states precluded the Court from concluding that this form of penalty was no longer acceptable to a majority of the American people. Rather, they concluded, a large proportion of American society continued to regard it as an appropriate and necessary criminal sanction. Neither is it possible, the Court continued, to rule that the death penalty does not comport with the basic concept of human dignity at the core of the Eighth Amendment. Courts are not free to substitute their own judgments for the people and their elected representatives. A death penalty statute, just as all other statutes, comes before the courts bearing a presumption of validity that can be overcome only upon a strong showing by those who attack its constitutionality. Whether in fact the death penalty validly serves the permissible functions of retribution and deterrence, the judgments of the state legislatures are that it does, and those judgments are entitled to deference. Therefore, the infliction of death as a punishment for murder is not without justification and is not unconstitutionally severe. Nor is the punishment of death disproportionate to the crime being punished, murder. 42

Second, however, a different majority concluded that statutes mandating the 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 the 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. 43

A third principle established by the 1976 cases was that the procedure by which a death sentence is imposed must be structured so as to reduce arbitrariness and capriciousness as much as possible. 44 What emerged from the prevailing plurality opinion in these cases are requirements (1) that the sentencing authority, jury or judge, 45 be given standards to govern its exercise of discretion and be given the opportunity to evaluate both the circumstances of the offense and the character and propensities of the accused; 46 (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; 47 (3) that special forms of appellate review be provided not only of the conviction but also of the sentence, to ascertain that the sentence was fairly imposed both in light of the facts of the individual case and by comparison with the penalties imposed in similar cases. 48 The Court later ruled, however, that proportionality review is not constitutionally required. 49 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.50

The Court added a fourth 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. 51 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 imposition of a death sentence.

Implementation of Procedural Requirements

Most states responded to the 1976 requirement that the sentencing authority’s discretion be narrowed by enacting statutes spelling out aggravating circumstances, and requiring that at least one such aggravating circumstance be found before the death penalty is imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer, the desired result being a principled way to distinguish cases in which the death penalty should be imposed from cases in which it should not be. Thus, the Court invalidated a capital sentence based upon a jury finding that the murder was outrageously or wantonly vile, horrible, and inhuman, reasoning that a person of ordinary sensibility could fairly [so] characterize almost every murder.52 Similarly, an especially heinous, atrocious, or cruel aggravating circumstance was held to be unconstitutionally vague. 53 The especially heinous, cruel, or depraved standard is cured, however, by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim’s death. 54

The proscription against a mandatory death penalty has also received elaboration. The Court invalidated statutes making death the mandatory sentence for persons convicted of first-degree murder of a police officer, 55 and for prison inmates convicted of murder while serving a life sentence without possibility of parole. 56 Flaws related to those attributed to mandatory sentencing statutes were found in a state’s structuring of its capital system to deny the jury the option of convicting on a lesser included offense, when doing so would be justified by the evidence. 57 Because the jury had to choose between conviction or acquittal, the statute created the risk that the jury would convict because it felt the defendant deserved to be punished or acquit because it believed death was too severe for the particular crime, when at that stage the jury should concentrate on determining whether the prosecution had proved defendant’s guilt beyond a reasonable doubt. 58

The overarching principle of Furman and of the Gregg series of cases was that the jury should not be without guidance or direction in deciding whether a convicted defendant should live or die. The jury’s attention was statutorily directed to the specific circumstances of the crime . . . and on the characteristics of the person who committed the crime.59 Discretion was channeled and rationalized. But, in Lockett v. Ohio, 60 a Court plurality determined that a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in the law. In other words, the jury’s discretion was curbed too much. [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.61 Similarly, the reason that a three-justice plurality viewed North Carolina’s mandatory death sentence for persons convicted of first degree murder as invalid was that it failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant.62 Lockett and Woodson have since been endorsed by a Court majority. 63 Thus, a great measure of discretion was again accorded the sentencing authority, be it judge or jury, subject only to the consideration that the legislature must prescribe aggravating factors. 64

The Court has explained this apparent contradiction as constituting recognition that individual culpability is not always measured by the category of crime committed,65 and as the product of an attempt to pursue the twin objectives of measured, consistent application of the death penalty and fairness to the accused.66 The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps consistency of application; absence of restriction on mitigating evidence helps promote fairness to the accused through an individualized consideration of his circumstances. In the Court’s words, statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition [by] circumscribing the class of persons eligible for the death penalty,67 while consideration of all mitigating evidence requires focus on the character and record of the individual offender and the circumstances of the particular offense consistent with the fundamental respect for humanity underlying the Eighth Amendment.68 As long as the defendant’s crime falls within the statutorily narrowed class, the jury may then conduct an individualized determination on the basis of the character of the individual and the circumstances of the crime.69

So far, the Justices who favor abandonment of the Lockett and Woodson approach have not prevailed. The Court has, however, given states greater leeway in fashioning procedural rules that have the effect of controlling how juries may use mitigating evidence that must be admitted and considered. 70 States may also cure some constitutional errors on appeal through operation of harmless error rules and reweighing of evidence by the appellate court. 71 Also, the Court has constrained the use of federal habeas corpus to review state court judgments. As a result of these trends, the Court recognizes a significant degree of state autonomy in capital sentencing in spite of its rulings on substantive Eighth Amendment law. 72

While holding fast to the Lockett requirement that sentencers be allowed to consider all mitigating evidence, 73 the Court has upheld state statutes that control the relative weight that the sentencer may accord to aggravating and mitigating evidence. 74 The requirement of individualized sentencing is satisfied by allowing the jury to consider all relevant mitigating evidence; there is no additional requirement that the jury be allowed to weigh the severity of an aggravating circumstance in the absence of any mitigating factor. 75 So, too, the legislature may specify the consequences of the jury’s finding an aggravating circumstance; it may mandate that a death sentence be imposed if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, 76 or if the jury finds that aggravating circumstances outweigh mitigating circumstances. 77 And a court may instruct that the jury must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling, because in essence the instruction merely cautions the jury not to base its decision on factors not presented at the trial.78 However, a jury instruction that can be interpreted as requiring jury unanimity on the existence of each mitigating factor before that factor may be weighed against aggravating factors is invalid as in effect allowing one juror to veto consideration of any and all mitigating factors. Instead, each juror must be allowed to give effect to what he or she believes to be established mitigating evidence. 79 Due process considerations can also come into play; if the state argues for the death penalty based on the defendant’s future dangerousness, due process requires that the jury be informed if the alternative to a death sentence is a life sentence without possibility of parole. 80

What is the effect on a death sentence if an eligibility factor (a factor making the defendant eligible for the death penalty) or an aggravating factor (a factor, to be weighed against mitigating factors, in determining whether a defendant who has been found eligible for the death penalty should receive it) is found invalid? In Brown v. Sanders, the Court announced the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.81

Appellate review under a harmless error standard can preserve a death sentence based in part on a jury’s consideration of an aggravating factor later found to be invalid, 82 or on a trial judge’s consideration of improper aggravating circumstances. 83 In each case the sentencing authority had found other aggravating circumstances justifying imposition of capital punishment, and in Zant evidence relating to the invalid factor was nonetheless admissible on another basis. 84 Even in states that require the jury to weigh statutory aggravating and mitigating circumstances (and even in the absence of written findings by the jury), the appellate court may preserve a death penalty through harmless error review or through a reweighing of the aggravating and mitigating evidence. 85 By contrast, where there is a possibility that the jury’s reliance on a totally irrelevant factor (defendant had served time pursuant to an invalid conviction subsequently vacated) may have been decisive in balancing aggravating and mitigating factors, a death sentence may not stand notwithstanding the presence of other aggravating factors. 86

In Oregon v. Guzek, the Court could find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce, at sentencing, new evidence, available to him at the time of trial, that shows he was not present at the scene of the crime.87 Although the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death, such evidence is a traditional concern of sentencing because it tends to show how, not whether, the defendant committed the crime. 88 Alibi evidence, by contrast, concerns whether the defendant committed the basic crime, and thereby attacks a previously determined matter in a proceeding [i.e., sentencing] at which, in principle, that matter is not at issue.89

Focus on the character and culpability of the defendant led the Court, initially, to hold that the Eighth Amendment “prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” 90 Four years later, the Court largely overruled 91 these decisions, however, holding that the Eighth Amendment does allow the jury to consider “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” 92 The Court reasoned that the admissibility of victim impact evidence was necessary to restore balance to capital sentencing. In the Court’s view, exclusion of such evidence “unfairly weighted the scales in a capital trial” because there are no corresponding limits on “relevant mitigating evidence a capital defendant may introduce concerning his own circumstances . . . .” 93

Limitations on Capital Punishment: Methods of Execution

Throughout the history of the United States, various methods of execution have been deployed by the states in carrying out the death penalty. In the early history of the nation, hanging was the nearly universal form of execution.94 In the late 19th century and continuing into the 20th century, the states began adopting electrocution as a substitute for hanging based on the well-grounded belief that electrocution is less painful and more humane than hanging.95 And by the late 1970s, following Gregg, states began adopting statutes allowing for execution by lethal injection, perceiving lethal injection to be a more humane alternative to electrocution or other popular pre-Gregg means of carrying out the death penalty, such as firing squads or gas chambers. 96Today the overwhelming majority of the states that allow for the death penalty use lethal injection as the exclusive or primary method of execution.97

Despite a national evolution over the past two hundred years with respect to the methods deployed in carrying out the death penalty, the choice to adopt arguably more humane means of capital punishment has not been the direct result of a decision from the Supreme Court. Citing public understandings from the time of the Framing, the Court has articulated some limits to the methods that can be employed in carrying out death sentences, such as those that superadd terror, pain, or disgrace to the penalty of death, 98 for example by torturing someone to death. 99 Nonetheless, the Supreme Court has never invalidated a State’s chosen procedure for carrying out the death penalty as a violation of the Eighth Amendment. 100 In 1878, the Court, relying on a long history of using firing squads in carrying out executions in military tribunals, held that the punishment of shooting as a mode of executing the death penalty did not constitute a cruel and unusual punishment. 101 Twelve years later, the Court upheld the use of the newly created electric chair, deferring to the judgment of the New York state legislature and finding that it was plainly right that electrocution was not inhuman and barbarous.102 Fifty-seven years later, a plurality of the Court concluded that it would not be cruel and unusual to execute a prisoner whose first execution failed due to a mechanical malfunction, as an unforeseeable accident did not amount to the wanton infliction of pain barred by the Eighth Amendment. 103

The declaration in Trop that the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society104 and the continued reliance on that declaration by a majority of the Court in several key Eighth Amendment cases 105 set the stage for potential method of execution challenges to the newest mode for the death penalty: lethal injection. Following several decisions clarifying the proper procedural mechanism to raise challenges to methods of execution, 106 the Court, in Baze v. Rees, rejected a method of execution challenge to Kentucky’s lethal injection protocol, a three-drug protocol consisting of (1) an anesthetic that would render a prisoner unconscious; (2) a muscle relaxant; and (3) an agent that would induce cardiac arrest. 107 A plurality opinion, written by Chief Justice Roberts and joined by Justices Kennedy and Alito, concluded that to constitute cruel and unusual punishment, a particular method for carrying out the death penalty must present a substantial or objectively intolerable risk of harm. 108 In so concluding, the plurality opinion rejected the view that a prisoner could succeed on an Eighth Amendment method of execution challenge by merely demonstrating that a marginally safer alternative existed, because such a standard would embroil the courts in ongoing scientific inquiries and force courts to second guess the informed choices of state legislatures respecting capital punishment. 109 As a result, the plurality reasoned that to address a substantial risk of serious harm effectively, the prisoner must propose an alternative method of execution that is feasible, can be readily implemented, and can significantly reduce a substantial risk of severe pain. 110 Given the heavy burden that the plurality placed on those pursuing an Eighth Amendment method of execution claim, the plurality upheld Kentucky’s protocol in light of (1) the consensus of state lethal injection procedures; (2) the safeguards Kentucky put in place to protect against any risks of harm; and (3) the lack of any feasible, safer alternative to the three-drug protocol. 111 Four other Justices, for varying reasons, concurred in the judgment of the Court. 112

Seven years later, in a seeming reprise of the Baze litigation, a majority of the Court in Glossip v. Gross formally adopted the Baze plurality’s reasoning with respect to Eighth Amendment claims involving methods of execution, resulting in the rejection of a challenge to Oklahoma’s three-drug lethal injection protocol. 113 Following Baze, anti-death penalty advocates successfully persuaded pharmaceutical companies to stop providing states with the anesthetic that constituted the first of the three drugs used in the protocol challenged in the 2008 case, resulting in several states, including Oklahoma, substituting a sedative called midazolam in the protocol. 114 In Glossip, the Court held that Oklahoma’s use of midazolam in its execution protocol did not violate the Eighth Amendment, because the challengers had failed to present a known and available alternative to midazolam and did not adequately demonstrate that the drug was ineffective in rendering a prisoner insensate to pain. 115

Four years after Glossip, the Court further clarified its method-of-execution jurisprudence in Bucklew v. Precythe. 116 In that case, a death row inmate challenged the State of Missouri’s use of the drug pentobarbital in executions because, regardless of its effect on other inmates, the drug would result in him experiencing “severe pain” due to his “unusual medical condition.” 117 The Court, in an opinion by Justice Gorsuch, began by framing the Baze-Glossip test as fundamentally asking whether a state’s chosen method of execution is one that “cruelly superadds pain to the death sentence” relative to an alternative method of execution. 118 With this framework in mind, the Court first rejected the petitioner’s argument that Baze and Glossip, which involved facial challenges, did not govern his as-applied challenge. 119 Justice Gorsuch reasoned that determining whether the state is cruelly “superadding” pain to a punishment necessarily requires comparing that method with a viable alternative, an inquiry that simply does not hinge on whether a death row inmate’s challenge rests on facts unique to his particular medical condition. 120 In so concluding, the Court clarified that an inmate seeking to identify an alternative method of execution is not limited to choosing a method that the state currently authorizes and can instead point, for example, to a well-established protocol in another state. 121 Applying the Baze-Glossip framework, the Court then rejected the petitioner’s proposed alternative of using the drug nitrogen hypoxia because (1) the proposal was insufficiently detailed to permit a finding that the state could carry out the execution easily and quickly; 122 (2) the proposed drug was an “untried and untested” method of execution; 123 and (3) the underlying record showed that any risks created by pentobarbital and mitigated by nitrogen hypoxia were speculative in nature. 124

As a result of Baze, Glossip, and Bucklew, it appears that only those modes of the death penalty that demonstrably result in substantial risks of harm for the prisoner relative to viable alternatives can be challenged as unconstitutional. 125 This standard appears to result in the political process (as opposed the judiciary) being the primary means of making wholesale changes to a particular method of execution. 126

Limitations on Capital Punishment: Proportionality

The Court has also considered whether, based on the nature of the underlying offense (or, as explored in the next topic, the capacity of the defendant), the imposition of capital punishment may be inappropriate in particular cases. [T]he Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic 'precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.' Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that 'currently prevail.' The Amendment 'draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.'127 However, the Court has . . . made it clear that '[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.'128

In Coker v. Georgia, 129 the Court held that the state may not impose a death sentence upon a rapist who did not take a human life. In Kennedy v. Louisiana, 130 the Court held that this was true even when the rape victim was a child. 131 In Coker the Court announced that the standard under the Eighth Amendment was that punishments are barred when they are 'excessive' in relation to the crime committed. Under Gregg, a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to the public attitudes concerning a particular sentence – history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted.132 Although the Court thought that the death penalty for rape passed the first test (it may measurably serve the legitimate ends of punishment), 133 it found that it failed the second test (proportionality). Georgia was the sole state providing for death for the rape of an adult woman, and juries in at least nine out of ten cases refused to impose death for rape. Aside from this view of public perception, the Court independently concluded that death is an excessive penalty for an offender who rapes but does not kill; rape cannot compare with murder in terms of moral depravity and of the injury to the person and to the public.134 In Kennedy v. Louisiana, the Court found that both evolving standards of decency and a national consensus preclude the death penalty for a person who rapes a child. 135

Applying the Coker analysis, the Court ruled in Enmund v. Florida136 that death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or intend that anyone be killed. Although a few more states imposed capital punishment in felony murder cases than had imposed it for rape, nonetheless the weight was heavily against the practice, and the evidence of jury decisions and other indicia of a modern consensus also opposed the death penalty in such circumstances. Moreover, the Court determined that death was a disproportionate sentence for one who neither took life nor intended to do so. Because the death penalty is likely to deter only when murder is the result of premeditation and deliberation, and because the justification of retribution depends upon the degree of the defendant’s culpability, the imposition of death upon one who participates in a crime in which a victim is murdered by one of his confederates and not as a result of his own intention serves neither of the purposes underlying the penalty. 137 In Tison v. Arizona, however, the Court eased the intent to kill requirement, holding that, in keeping with an apparent consensus among the states, major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.138

Limitations on Capital Punishment: Diminished Capacity

The Court has grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court held in Ford v. Wainwright139 that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who has a severe mental illness, and that properly raised issues of the individual's mental health at the time of execution must be determined in a proceeding satisfying the minimum requirements of due process. 140 The Court noted that execution of persons with severe mental illness had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed. And, although no states purported to permit the execution of persons with severe mental illness, Florida and some others left the determination to the governor. Florida’s procedures, the Court held, violated due process because the decision was vested in the governor without the defendant's having the opportunity to be heard, the governor’s decision being based on reports of three state-appointed psychiatrists. 141

The Court in Panetti v. Quarterman clarified when a prisoner’s current mental state can bar his execution under the rule of Ford. 142 Relying on the understanding that the execution of a prisoner who cannot comprehend the reasons for his punishment offends both moral values and serves “no retributive purpose,” the Court concluded that the operative test was whether a prisoner can “reach a rational understanding for the reason for his execution.” 143 Under Panetti, if a prisoner’s mental state is so distorted by mental illness that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment,” he cannot be executed. 144

Twelve years after Panetti, the Court further clarified two aspects of the Ford-Panetti inquiry in Madison v. Alabama. 145 First, on behalf of the Court, Justice Kagan concluded that a prisoner challenging his execution on the ground of a mental disorder cannot prevail “merely because he cannot remember committing his crime.” 146 Recognizing that a prisoner who can no longer remember a crime “may yet recognize the retributive message society intends to convey with a death sentence,” the Court declined to impose a categorical rule prohibiting the execution of such a prisoner. 147 Instead, Justice Kagan viewed a prisoner’s memory loss as a factor that a court may consider in determining whether he has a “rational understanding” of the reason for his execution. 148 Second, the Madison Court concluded that while Ford and Panetti pertained to prisoners suffering from psychotic delusions, the logic of those opinions extended to a prisoner who suffered from dementia. 149 For the Court, the Ford-Panetti inquiry is not so much concerned with the precise cause for whether a prisoner can rationally understand why the state is seeking an execution and is instead focused on whether the prisoner’s mental condition has the effect of preventing such an understanding. 150

In 1989, when first confronted with the issue of whether execution of the persons with intellectual disabilities is constitutional, the Court found insufficient evidence of a national consensus against executing such people. 151 In 2002, however, the Court determined in Atkins v. Virginia152 that much ha[d] changed since 1989, that the practice had become truly unusual, and that it was fair to say that a national consensus had developed against it. 153 In 1989, only two states and the Federal Government prohibited execution of persons with intellectual disabilities while allowing executions generally. By 2002, an additional 16 states had prohibited execution of persons with intellectual disabilities, and no states had reinstated the power. But the important element of consensus, the Court explained, was not so much the number of states that had acted, but instead the consistency of the direction of change.154 The Court’s own evaluation of the issue reinforced the consensus. Neither of the two generally recognized justifications for the death penalty—retribution and deterrence—applies with full force to mentally offenders with intellectual disabilities. Retribution necessarily depends on the culpability of the offender, yet intellectual disability reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet the same cognitive and behavioral impairments that make these defendants less morally culpable . . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information.155

In Atkins, the Court wrote, [W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.156 In Schriro v. Smith, the Court again quoted this language, determining that the Ninth Circuit exceeded its authority in holding that Arizona courts were required to conduct a jury trial to resolve a defendant's claim that he was ineligible for the death penalty because of intellectual disability. 157 States, the Court added, are entitled to adopt[ ] their own measures for adjudicating claims of intellectual disability though those measures might, in their application, be subject to constitutional challenge.158

In Hall v. Florida, 159 however, the Court limited the states' ability to define intellectual disability by invalidating Florida's bright line cutoff based on Intelligence Quotient (IQ) test scores. A Florida statute stated that anyone with an IQ above 70 was prohibited from offering additional evidence of mental disability and was thus subject to capital punishment. 160 The Court invalidated this rigid standard, observing that [i]ntellectual disability is a condition, not a number.161 The majority found that, although IQ scores are helpful in determining mental capabilities, they are imprecise in nature and may only be used as a factor of analysis in death penalty cases. 162 This reasoning was buttressed by a consensus of mental health professionals who concluded that an IQ test score should be read not as a single fixed number, but as a range. 163

Building on Hall, in Moore v. Texas the Supreme Court rejected the standards used by Texas state courts to evaluate whether a death row inmate was intellectually disabled, concluding that the standards created an “unacceptable risk that persons with intellectual disability will be executed.” 164 First, Justice Ginsburg, on behalf of the Court, held that a Texas court’s conclusion that a prisoner with an IQ score of 74 could be executed was “irreconcilable with Hall” because the state court had failed to consider standard errors that are inherent in assessing intellectual disability. 165 Second, the Moore Court determined that Texas deviated from prevailing clinical standards respecting the assessment of a death row inmate’s intellectual capabilities by (1) emphasizing the petitioner’s perceived adaptive strengths and his behavior in prison; 166 (2) dismissing several traumatic experiences from the petitioner’s past; 167 and (3) requiring the petitioner to show that his adaptive deficits were not due to a personality disorder or a mental health issue. 168 Third, the Court criticized the prevailing standard used in Texas courts for assessing intellectual disability in death penalty cases, which had favored the “‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty,’” with regard to those with “mild” intellectual disabilities in the state’s capital system, concluding that those with even “mild” levels of intellectual disability could not be executed under Atkins. 169 Finally, Moore rejected the Texas courts’ skepticism of professional standards for assessing intellectual disability, standards that the state courts had viewed as being “exceedingly subjective.” 170 The Supreme Court instead held that “lay stereotypes” (and not established professional standards) on an individual’s intellectual capabilities should “spark skepticism.” 171 As a result, following Hall and Moore, while the states retain “some flexibility” in enforcing Atkins, the medical community’s prevailing standards appear to “supply” a key constraint on the states in capital cases. 172

The Court's conclusion that execution of juveniles constitutes cruel and unusual punishment evolved in much the same manner. Initially, a closely divided Court invalidated one statutory scheme that permitted capital punishment to be imposed for crimes committed before age 16, but upheld other statutes authorizing capital punishment for crimes committed by 16- and 17-year-olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes. 173 Although four Justices favored a flat ruling that the Eighth Amendment barred the execution of anyone younger than 16 at the time of his offense, concurring Justice O’Connor found Oklahoma’s scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty. The following year Justice O’Connor again provided the decisive vote when the Court in Stanford v. Kentucky held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri 174 directly specified a minimum age for the death penalty. To Justice O’Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on 16- or 17-year-old murderers, whereas there was such a consensus against execution of 15-year-olds. 175

Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing persons with intellectual disabilities with what it saw as a lack of consensus regarding execution of juvenile offenders over age 15, 176 less than three years later the Court held that such a consensus had developed. The Court's decision in Roper v. Simmons177 drew parallels with Atkins. A consensus had developed, the Court held, against the execution of juveniles who were age 16 or 17 when they committed their crimes. Since Stanford, five states had eliminated authority for executing juveniles, and no states that formerly prohibited it had reinstated the authority. In all, 30 states prohibited execution of juveniles: 12 that prohibited the death penalty altogether, and 18 that excluded juveniles from its reach. This meant that 20 states did not prohibit execution of juveniles, but the Court noted that only five of these states had actually executed juveniles since Stanford, and only three had done so in the 10 years immediately preceding Roper. Although the pace of change was slower than had been the case with execution of persons with intellectual disabilities, the consistent direction of change toward abolition was deemed more important. 178

As in Atkins, the Court in Roper relied on its own independent judgment in addition to its finding of consensus among the states. 179 Three general differences between juveniles and adults make juveniles less morally culpable for their actions. Because juveniles lack maturity and have an underdeveloped sense of responsibility, they often engage in impetuous and ill-considered actions and decisions. Juveniles are also more susceptible than adults to negative influences and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits are more transitory, less fixed.180 For these reasons, irresponsible conduct by juveniles is not as morally reprehensible, they have a greater claim than adults to be forgiven, and a greater possibility exists that a minor’s character deficiencies will be reformed.181 Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that [t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.182

The Roper Court found confirmation for its holding in the overwhelming weight of international opinion against the juvenile death penalty.183 Although not controlling, the rejection of the juvenile death penalty by other nations and by international authorities was instructive, as it had been in earlier cases, for Eighth Amendment interpretation. 184

Limitations on Capital Punishment: Equality of Application

One of the principal objections to imposition of the death penalty, voiced by Justice Douglas in his concurring opinion in Furman, was that it was not being administered fairly – that the capital sentencing laws vesting practically untrammeled discretion in juries were being used as vehicles for racial discrimination, and that discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.185 This argument has not carried the day. Although the Court has acknowledged the possibility that the death penalty may be administered in a racially discriminatory manner, it has made proof of such discrimination quite difficult.

A measure of protection against jury bias was provided by the Court’s holding that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.186

Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp187 that a strong statistical showing of racial disparity in capital sentencing cases is insufficient to establish an Eighth Amendment violation. Statistics alone do not establish racial discrimination in any particular case, the Court concluded, but at most show only a likelihood that a particular factor entered into some decisions.188 Just as important to the outcome, however, was the Court’s application of the two overarching principles of prior capital punishment cases: that a state’s system must narrow a sentencer’s discretion to impose the death penalty (e.g., by carefully defining aggravating circumstances), but must not constrain a sentencer’s discretion to consider mitigating factors relating to the character of the defendant. Although the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty, 189 the majority emphasized the need to preserve jury discretion not to impose capital punishment. Reliance on statistics to establish a prima facie case of discrimination, the Court feared, could undermine the requirement that capital sentencing jurors focus their collective judgment on the unique characteristics of a particular criminal defendant – a focus that can result in final and unreviewable leniency. 190

Limitations on Habeas Corpus Review of Capital Sentences

The Court’s rulings limiting federal habeas corpus review of state convictions, reinforced by the Antiterrorism and Effective Death Penalty Act of 1996, 191 may be expected to reduce significantly the amount of federal court litigation over state imposition of capital punishment. In the habeas context, the Court rejected the death is different approach by applying to capital cases the same rules that limit federal petitions in non-capital cases. 192 Then, in In re Troy Anthony Davis, 193 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. 194

The Court held in Penry v. Lynaugh195 that its Teague v. Lane196 rule of nonretroactivity applies to capital sentencing challenges. Under Teague, new rules of constitutional interpretation announced after a defendant’s conviction has become final will not be applied in habeas cases unless one of two exceptions applies. 197 The two exceptions – the situations in which [a] new rule applies retroactively in a collateral proceeding – are when (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding.198 The first exception has also been stated to be that a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'199 The second exception has also been stated to be that a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty,' and without which the likelihood of an accurate conviction is seriously diminished.200 Further restricting the availability of federal habeas review is the Court’s definition of new rule. Interpretations that are a logical outgrowth or application of an earlier rule are nonetheless new rules unless the result was dictated by that precedent. 201 Although in Penry itself the Court determined that the requested rule (requiring an instruction that the jury consider mitigating evidence of the defendant’s intellectual disability and history of suffering childhood abuse) was not a new rule because it was dictated by Eddings and Lockett, in subsequent habeas capital sentencing cases the Court has found substantive review barred by the new rule limitation. 202

A second restriction on federal habeas review also has ramifications for capital sentencing review. Claims that state convictions are unsupported by the evidence are weighed by a rational factfinder inquiry: whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt.203 This same standard for reviewing alleged errors of state law, the Court determined, should be used by a federal habeas court to weigh a claim that a generally valid aggravating factor is unconstitutional as applied to the defendant. 204 In addition, the Court has held that, absent an independent constitutional violation, habeas corpus relief for prisoners who assert innocence based on newly discovered evidence should generally be denied. 205 In In re Troy Anthony Davis, 206 however, 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. 207

Third, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v. California208 rule applicable on direct appeal, requiring the state to prove beyond a reasonable doubt that a constitutional error is harmless, is inappropriate for habeas review, the Court concluded, given the secondary and limited role of federal habeas proceedings. 209 The appropriate test is that previously used only for non-constitutional errors: whether the error has substantial and injurious effect or influence in determining the jury’s verdict.210 Further, the substantial and injurious effect standard is to be applied in federal habeas proceedings even when the state appellate court failed to recognize the error and did not review it for harmlessness under the 'harmless beyond a reasonable doubt' standard set forth in Chapman v. California . . . .211

A fourth rule was devised to prevent successive abusive or defaulted habeas petitions. Federal courts are barred from hearing such claims unless the defendant can show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law. 212

The Antiterrorism and Effective Death Penalty Act of 1996 prohibits federal habeas relief based on claims that were adjudicated on the merits in state court unless the state decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.213 The Court’s decision in Bell v. Cone, 214 rejecting a claim that an attorney’s failure to present mitigating evidence during the capital sentencing phase of a trial and his waiver of a closing argument at sentencing should entitle a condemned prisoner to relief, illustrates how these restrictions can operate to defeat challenges to state-imposed death sentences. 215

In Carey v. Musladin, 216 the Court noted that it had previously held that the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes,217 but that it had never ruled on the effect on a defendant's fair trial rights of spectator conduct. In Carey, the spectator conduct that allegedly affected the defendant's right to a fair trial consisted of members of the victim's family wearing buttons with the victim's photograph. Given the lack of holdings from the Court on the question of spectator conduct, the Court in Carey found that it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law in denying the defendant relief. 218 Consequently, the Antiterrorism and Effective Death Penalty Act of 1996 precluded habeas relief. Similarly, because the Supreme Court has never ruled on whether, during a plea hearing at which the defendant pleads guilty, defense counsel's being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in such poor performance that the Cronic standard for ineffective assistance of counsel should apply, the Court again could not say that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'219

The Court has also ruled that a death row inmate has no constitutional right to an attorney to help prepare a petition for state collateral review. 220


In O’Neil v. Vermont, 221 Justice Field argued in dissent that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged. In Weems v. United States, 222 the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.223 Punishments as well as fines, therefore, can be condemned as excessive. 224

In Robinson v. California225 the Court carried the principle to new heights, setting aside a conviction under a law making it a crime to be addicted to the use of narcotics. The statute was unconstitutional because it punished the mere status of being an addict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the state or had committed any act at all within the state’s power to proscribe, and because addiction is an illness that – however it is acquired – physiologically compels the victim to continue using drugs. The case could stand for the principle, therefore, that one may not be punished for a status in the absence of some act, 226 or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct that he is unable to control, which would make it a holding of far-reaching importance. 227 In Powell v. Texas, 228 a majority of the Justices took the latter view of Robinson, but the result, because of one Justice's view of the facts, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether either the Eighth Amendment or the Due Process Clauses will govern the requirement of the recognition of capacity defenses to criminal charges remains to be decided.

The Court has gone back and forth in its acceptance of proportionality analysis in non-capital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle, 229 upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant’s three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value, and distinguished Weems on the ground that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that states may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative grace. 230 The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a small amount of money, being so subjective, was a legislative task. In any event, the state could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same state ignored the recidivism aspect. 231

Rummel was distinguished in Solem v. Helm, 232 the Court stating unequivocally that the Cruel and Unusual Punishments Clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed, and that [t]here is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences.233 Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money. 234 The difference was that Helm’s sentence of life imprisonment without possibility of parole was viewed as far more severe than the life sentence we considered in Rummel v. Estelle.235 Rummel, the Court pointed out, was likely to have been eligible for parole within 12 years of his initial confinement, whereas Helm had only the possibility of executive clemency, characterized by the Court as nothing more than a hope for ‘an ad hoc exercise of clemency.’236 The Solem Court also spelled out the objective criteria by which proportionality issues should be judged: (I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.237 Measured by these criteria, Helm’s sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnaping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated. 238

The Court remained closely divided in holding in Harmelin v. Michigan239 that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence. 240 As to the length of sentence, three majority Justices – Kennedy, O’Connor, and Souter – would recognize a narrow proportionality principle, but considered Harmelin’s crime severe and by no means grossly disproportionate to the penalty imposed. 241

Twelve years after Harmelin the Court still could not reach a consensus on rationale for rejecting a proportionality challenge to California’s three-strikes law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing three golf clubs valued at $399 apiece. 242 A plurality of three Justices (O’Connor, Kennedy, and Chief Justice Rehnquist) determined that the sentence was justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record, and hence was not the rare case of gross disproportional[ity].243 The other two Justices voting in the majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution, 244 and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause contains no proportionality principle.245 Not surprisingly, the Court also rejected a habeas corpus challenge to California’s three-strikes law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, clearly established federal law.246 Justice O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area have not been a model of clarity . . . that have established a clear or consistent path for courts to follow.247

Declaring that [t]he concept of proportionality is central to the Eighth Amendment, Justice Kennedy, writing for a five-Justice majority in Graham v. Florida, 248 held that [t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.249 Justice Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper. 250 In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization — thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders — to actual imposition, which was rare outside Florida. Justice Kennedy also found support in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.251 After finding that a consensus had developed against the sentencing practice at issue, Justice Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately. 252 Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation. 253

The concept of proportionality also drove Justice Kagan's analysis in Miller v. Alabama, a case questioning the imposition of mandatory life imprisonment without parole on juveniles convicted of homicide. 254 Her analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform. 255 Nevertheless, these factors, even when coupled with the severity of a life without parole sentence, did not lead Justice Kagan to bar life without parole for juveniles in homicide cases categorically. 256 Her more immediate concern was that the mandatory life sentences in Miller left no room for a sentencer to consider a juvenile offender's special immaturity, vulnerability, suggestibility, and the like. 257 In Justice Kagan's view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark distinctions of youth in meting out society's severest penalties. 258

Prisons and Punishment

It is unquestioned that ‘[c]onfinement in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards.'259 Conditions [in prison] must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. . . . Conditions . . . , alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. . . . But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.260 These general principles apply both to the treatment of individuals 261 and to the creation or maintenance of prison conditions that are inhumane to inmates generally. 262 Ordinarily there is both a subjective and an objective inquiry. Before conditions of confinement not formally meted out as punishment by the statute or sentencing judge can qualify as punishment, there must be a culpable, wanton state of mind on the part of prison officials. 263 In the context of general prison conditions, this culpable state of mind is deliberate indifference; 264 in the context of emergency actions, e.g., actions required to suppress a disturbance by inmates, only a malicious and sadistic state of mind is culpable. 265 When excessive force is alleged, the objective standard varies depending upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and sadistically to cause harm. In the good-faith context, there must be proof of significant injury. When, however, prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated, and there is no need to prove that significant injury resulted. 266

Beginning with Holt v. Sarver, 267 federal courts found prisons or entire prison systems to violate the Cruel and Unusual Punishments Clause, and broad remedial orders directed to improving prison conditions and ameliorating prison life were imposed in more than two dozen states. 268 But, although the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the federal courts to proceed with deference to the decisions of state legislatures and prison administrators. 269 In both cases, the prisons involved were of fairly recent vintage and the conditions, while harsh, did not approach the conditions described in many of the lower court decisions that had been left undisturbed. 270 Thus, concerns of federalism and of judicial restraint apparently actuated the Court to begin to curb the lower federal courts from ordering remedial action for systems in which the prevailing circumstances, given the resources states choose to devote to them, cannot be said to be cruel and unusual under contemporary standards.271

Congress initially encouraged litigation over prison conditions by enactment in 1980 of the Civil Rights of Institutionalized Persons Act, 272 but then in 1996 added restrictions through enactment of the Prison Litigation Reform Act. 273 The Court upheld the latter law’s provision for an automatic stay of prospective relief upon the filing of a motion to modify or terminate that relief, ruling that separation of powers principles were not violated. 274

Limitation of the Clause to Criminal Punishments

The Eighth Amendment deals only with criminal punishment, and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such.275 These limitations, the Court thought, should not be extended outside the criminal process.


  1.  1 Annals of Congress 754 (1789).
  2.  E.g., 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Constitution 111 (2d ed. 1836); 3 id. at 447-52.
  3.  See Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 Calif. L. Rev. 839 (1969). Disproportionality, in any event, was used by the Court in Weems v. United States, 217 U.S. 349 (1910). It is not clear what, if anything, the word unusual adds to the concept of cruelty (but see Furman v. Georgia, 408 U.S. 238, 276 n.20 (1972) (Justice Brennan concurring)), although it may have figured in Weems, 217 U.S. at 377, and in Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958) (plurality opinion), and it did figure in Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history).
  4.  Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368-72 (1910). Chief Justice Rehnquist subscribed to this view (See, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966-90 (1991) (Justice Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Justice Thomas dissenting) (objecting to Court’s extension of the Amendment beyond all bounds of history and precedent in holding that significant injury need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment).
  5.  217 U.S. 349 (1910).
  6.  217 U.S. at 376-77.
  7.  Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion). This oft-quoted passage was later repeated, with the Court adding that cruel and unusual punishment is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted, but rather by those that currently prevail. Atkins v. Virginia, 536 U.S. 304, 311-12 (2002).
  8.  See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).
  9.  See Wilkerson v. Utah, 99 U.S. 130, 135-36 (1879).
  10.  Id. at 137–38.
  11.  See In re Kemmler, 136 U.S. 436, 447 (1890) (Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.); see also Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).
  12.  See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (declaring that “the Eighth Amendment was understood to forbid . . . forms of punishment that intensified the sentence of death” by superadding “terror, pain, or disgrace”) (internal citations and quotations omitted).
  13.  See Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (upholding Kentucky’s use of a three-drug cocktail consisting of an anesthetic (sodium thiopental), a muscle relaxant, and an agent that induced cardiac arrest); see also Bucklew, 139 S. Ct. at 1130-31 (in an as-applied challenged, concluding that the petitioner’s claims that the State of Missouri’s execution protocol would result in severe pain rested on “speculation unsupported, if not affirmatively contradicted, by the evidence” before the lower court); Glossip v. Gross, 135 S. Ct 2726, 2746 (2015) (upholding Oklahoma’s use of a three-drug cocktail that utilized a sedative called midazolam in lieu of sodium thiopental).
  14.  356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124-27.
  15.  356 U.S. at 99-100. The action of prison guards in handcuffing a prisoner to a hitching post for long periods of time violated basic human dignity and constituted gratuitous infliction of ‘wanton and unnecessary pain’ prohibited by the clause. Hope v. Pelzer, 536 U.S. 730, 738 (2002).
  16.  408 U.S. 238 (1972).
  17.  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).
  18.  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.
  19.  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).
  20.  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.
  21.  557 U.S. ___, No. 08-1443 (2009).
  22.  See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
  23.  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.
  24.  See Glossip v. Gross, 135 S. Ct. 2726, 2756 (2015) (Breyer & Ginsburg, JJ., dissenting).
  25.  See id. at 4 (Alito, J., joined by Roberts, C.J., and Scalia, Kennedy, and Thomas, JJ.); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1121-23 (2019) (“The Constitution allows capital punishment. . . . While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are ‘cruel and unusual.’”).
  26.  356 U.S. 86, 99 (1958).
  27.  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 the imposition of death on a convicted rapist who has neither taken 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). Witherspoon and subsequent cases explicating it are discussed under Sixth Amendment – Impartial Jury.
  28.  402 U.S. 183 (1971). McGautha was decided in the same opinion with Crampton v. Ohio. McGautha raised the question whether provision for imposition of the death penalty without 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 for the Court held that 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.
  29.  408 U.S. 238 (1972). The change in the Court’s approach was occasioned by the shift of Justices Stewart and White, who had voted with the majority in McGautha.
  30.  408 U.S. at 257 (Justice Brennan).
  31.  408 U.S. at 314 (Justice Marshall).
  32.  408 U.S. at 240 (Justice Douglas).
  33.  408 U.S. at 306 (Justice Stewart).
  34.  408 U.S. at 310 (Justice White). The four dissenters, in four separate opinions, argued with different emphases that the Constitution itself recognized capital punishment in the Fifth and Fourteenth Amendments, that the death penalty was not cruel and unusual when the Eighth and Fourteenth Amendments were proposed and ratified, that the Court was engaging in a legislative act to strike it down now, and that even under modern standards it could not be considered cruel and unusual. Id. at 375 (Chief Justice Burger), 405 (Justice Blackmun), 414 (Justice Powell), 465 (Justice Rehnquist). Each of the dissenters joined each of the opinions of the others.
  35.  Collectors of judicial put downs of colleagues should note Justice Rehnquist’s characterization of the many expressions of faults in the system and their correction as glossolalial. Woodson v. North Carolina, 428 U.S. 280, 317 (1976) (dissenting).
  36.  Justice Frankfurter once wrote of the development of the law through the process of litigating elucidation. International Ass’n of Machinists v. Gonzales, 356 U.S. 617, 619 (1958). The Justices are firm in declaring that the series of death penalty cases failed to conform to this concept. See, e.g., Chief Justice Burger, Lockett v. Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) (The signals from this Court have not . . . always been easy to decipher); Justice White, id. at 622 (The Court has now completed its about-face since Furman) (concurring in result); and Justice Rehnquist, id. at 629 (dissenting) (the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed), and id. at 632 (I am frank to say that I am uncertain whether today’s opinion represents the seminal case in the exposition by this Court of the Eighth and Fourteenth Amendments as they apply to capital punishment, or whether instead it represents the third false start in this direction within the past six years).
  37.  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, 128 S. Ct. 2461 (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, though uneventuated, 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.C. § 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, 128 S. Ct. 2641, 2659 (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.
  38.  Justices Brennan and Marshall adhered to the view that the death penalty is per se unconstitutional. E.g., Coker v. Georgia, 433 U.S. 584, 600 (1977); Lockett v. Ohio, 438 U.S. 586, 619 (1978); Enmund v. Florida, 458 U.S. 782, 801 (1982).
  39.  A comprehensive evaluation of the multiple approaches followed in Furman-era cases may be found in Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978).
  40.  Thus, Justice Douglas thought the penalty had been applied discriminatorily, Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart thought it wantonly and . . . freakishly imposed, id. at 310, and Justice White thought it had been applied so infrequently that it served no justifying end. Id. at 313.
  41.  The principal opinion was in Gregg v. Georgia, 428 U.S. 153 (1976) (upholding statute providing for a bifurcated proceeding separating the 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 (1976) (statute generally similar to Georgia’s, with the exception that the trial judge, rather than jury, was directed to weigh statutory aggravating factors against statutory mitigating factors), and Jurek v. Texas, 428 U.S. 262 (1976) (statute construed as narrowing death-eligible class, and lumping mitigating factors into consideration of future 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 death penalty for first-degree murder).
  42.  Gregg v. Georgia, 428 U.S. 153, 168-87 (1976) (Justices Stewart, Powell, and Stevens); Roberts v. Louisiana, 428 U.S. 325, 350-56 (1976) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). The views summarized in the text are those in the Stewart opinion in Gregg. Justice White’s opinion basically agrees with this 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, reiterating their Furman views. Gregg, 428 U.S. at 227, 231.
  43.  Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Justices Stewart, Powell, and Stevens composed the plurality, and Justices Brennan and Marshall concurred on the basis of their own views of the death penalty. Id. at 305, 306, 336.
  44.  Here adopted is the constitutional analysis of the Stewart plurality of three. [T]he holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds, Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976), a comment directed to the Furman opinions but equally applicable to these cases and to Lockett. See Marks v. United States, 430 U.S. 188, 192-94 (1977).
  45.  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 penal system, but agreed that sentencing may constitutionally be vested in the trial judge. Gregg v. Georgia, 428 U.S. 153, 190 (1976). 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, 136 S. Ct. 616, 619-20 (2016); Ring v. Arizona, 536 U.S. 584 (2002). Notably, one Justice in both cases 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, 136 S. Ct. at 619 (Breyer, J., concurring in the judgment).
  46.  Gregg v. Georgia, 428 U.S. 153, 188-95 (1976). Justice White seemed close to the plurality on the question of standards, id. at 207 (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, 319-21 (1976) (dissenting). In McGautha v. California, 402 U.S. 183, 207-08 (1971), the Court had rejected the argument that the absence of standards violated the Due Process Clause. On the vitiation of McGautha, see Gregg, 428 U.S. at 195 n.47, and Lockett v. Ohio, 438 U.S. 586, 598-99 (1978). 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 v. Texas, 428 U.S. 262, 275-76 (1976). 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 Self-incrimination and Counsel Clauses applicable to psychiatric examination, at least when a doctor testifies about his conclusions with respect to future dangerousness).
  47.  Gregg v. Georgia, 428 U.S. 153, 163, 190-92, 195 (1976) (plurality opinion). McGautha v. California, 402 U.S. 183 (1971), 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 v. Louisiana, 428 U.S. 325, 358 (1976), rejected bifurcation and viewed the plurality as requiring it. All states with post-Furman capital sentencing statutes took the cue by adopting 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).
  48.  Gregg v. Georgia, 428 U.S. 153, 195, 198 (1976) (plurality); Proffitt v. Florida, 428 U.S. 242, 250-51, 253 (1976) (plurality); Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality).
  49.  Pulley v. Harris, 465 U.S. 37 (1984).
  50.  465 U.S. at 50.
  51.  Ring v. Arizona, 536 U.S. 584 (2002). See also Hurst v. Florida, 136 S. Ct. 616, 619-20 (2016).
  52.  Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (plurality opinion).
  53.  Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988). But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the circumstances of the crime, the defendant’s prior criminal activity, and the age of the defendant, without further guidance, is not unconstitutionally vague).
  54.  Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis v. Jeffers, 497 U.S. 764 (1990). See also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (upholding full statutory circumstance of outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim); Proffitt v. Florida, 428 U.S. 242, 255 (1976) (upholding especially heinous, atrocious or cruel aggravating circumstance as interpreted to include only the conscienceless or pitiless crime which is unnecessarily torturous to the victim); Sochor v. Florida, 504 U.S. 527 (1992) (impermissible vagueness of heinousness factor cured by narrowing interpretation including strangulation of a conscious victim); Arave v. Creech, 507 U.S. 463 (1993) (consistent application of narrowing construction of phrase exhibited utter disregard for human life to require that the defendant be a cold-blooded, pitiless slayer cures vagueness); Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a narrowing construction because it had done so numerous times).
  55.  Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different defendant from the first Roberts v. Louisiana case, 428 U.S. 325 (1976).
  56.  Sumner v. Shuman, 483 U.S. 66 (1987).
  57.  Beck v. Alabama, 447 U.S. 625 (1980). The statute made the guilt determination depend . . . on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue. Id. at 640. Cf. Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity is present, however, if failure to instruct on lesser included offenses is due to the defendant’s refusal to waive the statute of limitations for those lesser offenses. Spaziano v. Florida, 468 U.S. 447 (1984). See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant charged with felony murder did not have right to instruction as to second degree murder or manslaughter, where Nebraska traditionally did not consider these lesser included offenses). See also Schad v. Arizona, 501 U.S. 624 (1991) (first-degree murder defendant, who received instruction on lesser included offense of second-degree murder, was not entitled to a jury instruction on the lesser included offense of robbery). In Schad the Court also upheld Arizona’s characterization of first degree murder as a single crime encompassing two alternatives, premeditated murder and felony-murder, and not requiring jury agreement on which alternative had occurred.
  58.  Also impermissible as distorting a jury’s role are prosecutor’s comments or jury instructions that mislead a jury as to its primary responsibility for deciding whether to impose the death penalty. Compare Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury’s responsibility is undermined by court-sanctioned remarks by prosecutor that jury’s decision is not final, but is subject to appellate review) with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not undermined by instruction that governor has power to reduce sentence of life imprisonment without parole). See also Lowenfield v. Phelps, 484 U.S. 231 (1988) (poll of jury and supplemental jury instruction on obligation to consult and attempt to reach a verdict was not unduly coercive on death sentence issue, even though consequence of failing to reach a verdict was automatic imposition of life sentence without parole); Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of death penalty after introduction of evidence that defendant had been sentenced to death previously did not diminish the jury’s sense of responsibility so as to violate the Eighth Amendment); Jones v. United States, 527 U.S. 373 (1999) (court’s refusal to instruct the jury on the consequences of deadlock did not violate Eighth Amendment, even though court’s actual instruction was misleading as to range of possible sentences).
  59.  Gregg v. Georgia, 428 U.S. 153, 197-98 (1976) (plurality).
  60.  438 U.S. 586 (1978). The plurality opinion by Chief Justice Burger was joined by Justices Stewart, Powell, and Stevens. Justices Blackmun, Marshall, and White concurred in the result on separate and conflicting grounds. Id. at 613, 619, 621. Justice Rehnquist dissented. Id. at 628.
  61.  438 U.S. at 604 (emphasis in original). Although, under the Eighth and Fourteenth Amendments, the state must bear the burden to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency. Walton v. Arizona, 497 U.S. 639, 650 (1990) (plurality). A fortiori, a statute may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise. Kansas v. Marsh, 548 U.S. 163, 173 (2006).
  62.  Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion of Justice Stewart, joined by Justices Powell and Stevens). Accord, Roberts v. Louisiana, 428 U.S. 325 (1976) (statute mandating death penalty for five categories of homicide constituting first-degree murder).
  63.  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (adopting Lockett); Sumner v. Shuman, 483 U.S. 66 (1987) (adopting Woodson). The majority in Eddings was composed of Justices Powell, Brennan, Marshall, Stevens, and O’Connor; Chief Justice Burger and Justices White, Blackmun, and Rehnquist dissented. The Shuman majority was composed of Justices Blackmun, Brennan, Marshall, Powell, Stevens, and O’Connor; dissenting were Justices White and Scalia and Chief Justice Rehnquist. Woodson and the first Roberts v. Louisiana had earlier been followed in the second Roberts v. Louisiana, 431 U.S. 633 (1977), a per curiam opinion from which Chief Justice Burger, and Justices Blackmun, White, and Rehnquist dissented.
  64.  Justice White, dissenting in Lockett from the Court’s holding on consideration of mitigating factors, wrote that he greatly fear[ed] that the effect of the Court’s decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that ‘its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.’ 438 U.S. at 623. More recently, Justice Scalia voiced similar misgivings. Shortly after introducing our doctrine requiring constraints on the sentencer’s discretion to ‘impose’ the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer’s discretion to ‘decline to impose’ it. This second doctrine – counterdoctrine would be a better word – has completely exploded whatever coherence the notion of ‘guided discretion’ once had. . . . In short, the practice which in Furman had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required. Walton v. Arizona, 497 U.S. 639, 661, 662 (1990) (concurring in the judgment). For a critique of these criticisms of Lockett, see Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147 (1991).
  65.  Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality opinion of Justices Stewart, Powell, and Stevens) (quoting Furman v. Georgia, 408 U.S. 238, 402 (1972) (Chief Justice Burger dissenting)).
  66.  Eddings v. Oklahoma, 455 U.S. 104, 110-11 (1982).
  67.  Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing function may be served at the sentencing phase or at the guilt phase; the fact that an aggravating circumstance justifying capital punishment duplicates an element of the offense of first-degree murder does not render the procedure invalid. Lowenfield v. Phelps, 484 U.S. 231 (1988).
  68.  Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)).
  69.  Zant v. Stephens, 462 U.S. 862, 879 (1983).
  70.  See, e.g., Johnson v. Texas, 509 U.S. 350 (1993) (consideration of youth as a mitigating factor may be limited to jury estimation of probability that defendant would commit future acts of violence).
  71.  Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial court’s use of invalid aggravating factor where appellate court fails to reweigh mitigating and aggravating factors).
  72.  As such, the Court has opined that it is not the role of the Eighth Amendment to establish a special federal code of evidence governing the admissibility of evidence at capital sentencing proceedings. See Romano v. Oklahoma, 512 U.S. 1, 11-12 (1994). Instead, the test for a constitutional violation attributable to evidence improperly admitted at a capital sentencing proceeding is whether the evidence so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process. Id. at 12. As a consequence, the Court found nothing constitutionally impermissible with a state having joint sentencing proceedings for two defendants whose underlying conviction arose from the same single chain of events. See Kansas v. Carr, 136 S. Ct. 633, 644-45 (2016) (rejecting the argument that joinder of two defendants was fundamentally unfair because evidence that one defendant unduly influenced another defendant’s conduct may have infected the jury’s decision making). Indeed, the Court approvingly noted that joint proceedings before a single jury for defendants that commit the same crimes are not only permissible but are often preferable in order to avoid the wanto[n] and freakis[h] imposition of the death sentence. See id. at 646 (citing Gregg v. Georgia, 428 U.S. 153, 206–07 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.)).
  73.  See, e.g., Hitchcock v. Dugger, 481 U.S. 393 (1987) (instruction limiting jury to consideration of mitigating factors specifically enumerated in statute is invalid); Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that a sentencing jury must be permitted to consider the defendant's mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant's personal culpability, future dangerousness, and the reasonableness of the defendant's response to a victim's provocation.); Skipper v. South Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant’s good conduct in jail denied defendant his Lockett right to introduce all mitigating evidence); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (holding that a sentencing jury must be permitted to consider the defendant's mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant's personal culpability, future dangerousness, and the reasonableness of the defendant's response to a victim's provocation); Brewer v. Quarterman, 550 U.S. 286 (2007) (same). But cf. Franklin v. Lynaugh, 487 U.S. 164 (1988) (consideration of defendant’s character as revealed by jail behavior may be limited to context of assessment of future dangerousness).
  74.  Neither [Lockett nor Eddings] establishes the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all. Barclay v. Florida, 463 U.S. 939, 961 n.2 (1983) (Justice Stevens concurring in judgment).
  75.  Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990).
  76.  494 U.S. at 307.
  77.  Boyde v. California, 494 U.S. 370 (1990). A court is not required give a jury instruction expressly directing the jury to consider mitigating circumstance, as long as the instruction actually given affords the jury the discretion to take such evidence into consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). In this vein, the Court has held that capital sentencing courts are not obliged to inform the jury affirmatively that mitigating circumstances lack the need for proof beyond a reasonable doubt. See Kansas v. Carr, 136 S. Ct. 633, 642-43 (2016) (noting that ambiguity in capital sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence). By the same token, a court did not offend the Constitution by directing the jury’s attention to a specific paragraph of a constitutionally sufficient instruction in response to the jury’s question about proper construction of mitigating circumstances. Weeks v. Angelone, 528 U.S. 225 (2000). Nor did a court offend the Constitution by instructing the jury to consider [a]ny other circumstance which extenuates the gravity of the crime, without specifying that such circumstance need not be a circumstance of the crime, but could include some likelihood of future good conduct. This was because the jurors had heard extensive forward-looking evidence, and it was improbable that they would believe themselves barred from considering it. Ayers v. Belmontes, 549 U.S. 7, 10, 15, 16 (2006).
  78.  California v. Brown, 479 U.S. 538, 543 (1987).
  79.  Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990). Compare Smith v. Spisak, 558 U.S. 139, 143-49 (2010) (distinguishing jury instructions in Mills from instructions directing each juror to independently assess any mitigating factors before jury as a whole balanced the weight of mitigating evidence against each aggravating factor, with unanimity required before balance in favor of an aggravating factor may be found).
  80.  Simmons v. South Carolina, 512 U.S. 154 (1994). See also Lynch v. Arizona, 136 S. Ct. 1818, 1820 (2016) (holding that the possibility of clemency and the potential for future legislative reform does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express an intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36, 40 (2001) (holding that an amended South Carolina law still runs afoul of Simmons).
  81.  546 U.S. 212, 220 (2006). In some states, the only aggravating factors permitted to be considered by the sentencer [are] the specified eligibility factors. Id. at 217. These are known as weighing states; non-weighing states, by contrast, are those that permit the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors. Id. Prior to Brown v. Sanders, in weighing states, the Court deemed the sentencer's consideration of an invalid eligibility factor to require reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors). Id.
  82.  Zant v. Stephens, 462 U.S. 862 (1983).
  83.  Barclay v. Florida, 463 U.S. 954 (1983).
  84.  In Eighth Amendment cases as in other contexts involving harmless constitutional error, the court must find that error was ‘harmless beyond a reasonable doubt in that it did not contribute to the [sentence] obtained.’ Sochor v. Florida, 504 U.S. 527, 540 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Thus, where psychiatric testimony was introduced regarding an invalid statutory aggravating circumstance, and where the defendant was not provided the assistance of an independent psychiatrist in order to develop rebuttal testimony, the lack of rebuttal testimony might have affected how the jury evaluated another aggravating factor. Consequently, the reviewing court erred in reinstating a death sentence based on this other valid aggravating factor. Tuggle v. Netherland, 516 U.S. 10 (1995).
  85.  Clemons v. Mississippi, 494 U.S. 738 (1990). Cf. Parker v. Dugger, 498 U.S. 308 (1991) (affirmance of death sentence invalid because appellate court did not reweigh non-statutory mitigating evidence).
  86.  Johnson v. Mississippi, 486 U.S. 578 (1988).
  87.  546 U.S. 517, 523 (2006).
  88.  546 U.S. at 524, 526 (Court's emphasis deleted in part).
  89.  546 U.S. at 526.
  90.  See Booth v. Maryland, 482 U.S. 496, 501-02 (1987); see also South Carolina v. Gathers, 490 U.S. 805, 811 (1989) (concluding that Booth extended to a prosecutor’s statements about a victim’s personal qualities).
  91.  The Court has refrained from overturning Booth’s holding that the admission of a victim’s family members’ characterizations and opinions about the “underlying crime, the defendant, and the appropriate sentence” violate the Eighth Amendment. See Bosse v. Oklahoma, 137 S. Ct. at 1 (2016). Instead, the Court has overruled Booth’s central holding that “evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing.” See Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).
  92.  See Payne, 501 U.S. at 817.
  93.  Id. at 822.
  94.  See State v. Frampton, 627 P. 2d 922, 934 (Wash. 1981).
  95.  See Malloy v. South Carolina, 237 U.S. 180, 185 (1915).
  96.  See Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion).
  97.  Id.
  98.  See Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019) (citing 4 W. Blackstone, Commentaries on the Laws of England 370 (1769)).
  99.  See Wilkerson v. Utah, 99 U.S. 130, 135-36 (1879) (noting in dicta that certain forms of torture, such as drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are forbidden by . . . [the] Constitution); see also Bucklew, 139 S. Ct. at 1123 (similar).
  100.  See Baze, 553 U.S. at 48 (plurality opinion).
  101.  See Wilkerson, 99 U.S. at 134-35.
  102.  See In re Kemmler, 136 U.S. 436, 447 (1890).
  103.  See Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion). Justice Frankfurter concurred in judgment, providing the fifth vote for the Court’s judgment. Id. at 466 (Frankfurter, J., concurring). He grounded his decision on whether the Eighth Amendment had been incorporated against the states through the Fourteenth Amendment, ultimately concluding that Louisiana’s choice of execution cannot be said to be repugnant to the conscience of mankind. Id. at 471.
  104.  See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
  105.  See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 419 (2008); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).
  106.  See, e.g., Hill v. McDonough, 547 U.S. 573 (2006) (ruling that a challenge to the constitutionality of an execution method could be brought as a civil rights claim under 28 U.S.C. § 1983); Nelson v. Campbell, 541 U.S. 637 (2004) (same).
  107.  553 U.S. 35, 44 (2008).
  108.  Id. at 50.
  109.  Id. at 51.
  110.  Id. at 52.
  111.  Id. at 53-61.
  112.  Justice Stevens, while announcing his skepticism regarding the constitutionality of the death penalty as a whole, concluded that, based on existing precedent, the petitioners’ evidence failed to prove a violation of the Eighth Amendment. Id. at 71-87 (Stevens, J., concurring). Justice Thomas, on behalf of himself and Justice Scalia, rejected the idea that the Court had the capacity to adjudicate claims involving methods of execution properly and instead argued that an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain. Id. at 94-107 (Thomas, J., concurring). Justice Breyer concluded that insufficient evidence in either the record or in available medical literature demonstrated that Kentucky’s lethal injection method created significant risk of unnecessary suffering. Id. at 107-13 (Breyer, J., concurring).
  113.  See 135 S. Ct. 2726 (2015).
  114.  Id. at 2733-34.
  115.  Id. at 2739-46.
  116.  Bucklew v. Precythe, 139 S. Ct. at 1116, 1121(2019).
  117.  Id. at 1116, 1120-21. Specifically, the petitioner argued that the state’s protocol would cause him severe pain because he suffered from a disease that causes vascular tumors, which could rupture upon being injected with the drug that Missouri used in its death penalty protocol. Id. at 1121
  118.  Id. at 1125 (observing that Baze and Glossip “teach[]” that a prisoner must show a “feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.”).
  119.  Id. at 1126.
  120.  Id. at 1126-27 (concluding that the argument that the Constitution categorically forbids some particular methods of execution was foreclosed by Baze and Glossip, as well as the “original and historical understanding” of the Eighth Amendment, which rejected ancient and barbaric methods of execution only because, in comparison to alternatives available at the Founding, they went far beyond what was necessary to carry out a death sentence). In so concluding, the Court rejected the argument that the comparator in an as-applied challenge should be a typical execution. Id. at 1127. For the Court, this argument rested on the assumption that executions must be carried out painlessly, a standard the Court “has rejected time and time again.” Id. Instead, to determine whether the state is cruelly “superadding” pain, Bucklew concluded that a death row inmate must show that the state had some other “feasible and readily available method” to carry out the execution that would have “significantly reduced a substantial risk of pain.”Id. Justice Gorsuch also saw other problems with the petitioner’s distinction between an as-applied challenge and a facial challenge. Viewing this distinction as simply a question of the breadth of the remedy afforded the plaintiff, the Court concluded that the meaning of the Constitution should not hinge on the particular remedy being sought. Id. at 1127-28. Moreover, the Court raised the concern that creating a distinction based on the nature of the plaintiff’s preferred remedy would result in “pleading games” over the labels a plaintiff assigned to his complaint. Id. at 1128.
  121.  Id. at 1128.
  122.  Id. at 21.
  123.  Id. at 22.
  124.  Id. at 23–28 (noting (1) evidence in the record that the state was making accommodations to further reduce any risks to the petitioner and (2) insufficient evidence indicating that pentobarbital would create risks of severe pain and that nitrogen hypoxia would not carry the same risks).
  125.  Id. at 13.
  126.  Id. at 29–30 (“Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously.”); see also id. at 12 (observing that historically the political process has been the means to reduce the risk of pain being imposed in an execution).
  127.  Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (citations omitted).
  128.  128 S. Ct. at 2675 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501 U.S. 957, 990 (1991)).
  129.  433 U.S. 584 (1977). Justice White’s opinion was joined only by Justices Stewart, Blackmun, and Stevens. Justices Brennan and Marshall concurred on their view that the death penalty is per se invalid, id. at 600, and Justice Powell concurred on a more limited basis than Justice White’s opinion. Id. at 601. Chief Justice Burger and Justice Rehnquist dissented. Id. at 604.
  130.  128 S. Ct. 2641 (2008). Justice Kennedy's opinion was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Scalia and Thomas joined.
  131.  The Court noted, however, that [o]ur concern here is limited to crimes against individual persons [where a victim's life is not taken]. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. 128 S. Ct. at 2659.
  132.  433 U.S. at 592.
  133.  433 U.S. at 593 n.4.
  134.  433 U.S. at 598.
  135.  128 S. Ct. 2641, 2649, 2653 (2008). The Court noted that, since Gregg, it had spent more than 32 years articulating limiting factors that channel the jury's discretion to avoid the death penalty's arbitrary imposition in the case of capital murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure. Id. at 2661.
  136.  458 U.S. 782 (1982). Justice White wrote the opinion of the Court and was joined by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, with Justices Powell and Rehnquist and Chief Justice Burger, dissented. Id. at 801. Accord, Cabana v. Bullock, 474 U.S. 376 (1986) (also holding that the proper remedy in a habeas case is to remand for state court determination as to whether Enmund findings have been made).
  137.  Justice O’Connor thought the evidence of contemporary standards did not support a finding that capital punishment was not appropriate in felony murder situations. 458 U.S. at 816-23. She also objected to finding the penalty disproportionate, first because of the degree of participation of the defendant in the underlying crime, id. at 823-26, but also because the Court appeared to be constitutionalizing a standard of intent required under state law.
  138.  481 U.S. 137, 158 (1987). The decision was 5-4. Justice O’Connor’s opinion for the Court viewed a narrow focus on intent to kill as a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers, id. at 157, and concluded that reckless disregard for human life may be held to be implicit in knowingly engaging in criminal activities known to carry a grave risk of death. Id.
  139.  477 U.S. 399 (1986).
  140.  There was an opinion of the Court only on the first issue: that the Eighth Amendment creates a right not to be executed while suffering severe mental illness. The Court’s opinion did not attempt to define the mental illnesses that make a person ineligible for the death penalty; Justice Powell’s concurring opinion would have held the prohibition applicable only for those who are unaware of the punishment they are about to suffer and why they are to suffer it. 477 U.S. at 422.
  141.  There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that the ascertainment of a prisoner’s sanity . . . calls for no less stringent standards than those demanded in any other aspect of a capital proceeding. 477 U.S. at 411-12. Concurring Justice Powell thought that due process might be met by a proceeding far less formal than a trial, that the state should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel. Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, set forth the Court’s holding.
  142.  551 U.S. 930 (2007).
  143.  Id. at 958.
  144.  Id. at 958–60. In a separate part of the opinion, the Court held that the Due Process Clause of the Fourteenth Amendment required the state to provide the petitioner with an “adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts” on the petitioner’s sanity. Id. at 951.
  145.  See 139 S. Ct. 718 (2019).
  146.  Id. at 726-27.
  147.  Id. at 727.
  148.  Id. In so holding, the Court noted that evidence that a prisoner has difficulty preserving any memories may contribute to a finding that the prisoner may not rationally understand the reasons for his death sentence. Id.
  149.  Id. at 728.
  150.  Id. at 728-29 (“[I]f and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another . . . is to blame.”).
  151.  Penry v. Lynaugh, 492 U.S. 302, 335 (1989). Although unwilling to conclude that execution of a person with an intellectual disability is categorically prohibited by the Eighth Amendment, id. at 335, the Court noted that, because of the requirement of individualized consideration of culpability, a defendant with such a disability is entitled to an instruction that the jury may consider and give mitigating effect to evidence of intellectual disability or a background of abuse. Id. at 328. See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should be admissible for mitigating purposes without being screened on basis of severity of disability).
  152.  536 U.S. 304 (2002). Atkins was 6-3 decision by Justice Stevens.
  153.  536 U.S. at 314, 316.
  154.  536 U.S. at 315.
  155.  536 U.S. at 320. The Court also noted that reduced capacity both increases the risk of false confessions and reduces a defendant’s ability to assist counsel in making a persuasive showing of mitigation.
  156.  536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986).
  157.  546 U.S. 6, 7 (2005) (per curiam).
  158.  546 U.S. at 7.
  159.   572 U.S. 701 (2014).
  160.  Fla. Stat. § 921.137.
  161.   Hall, 542 U.S. 701, 723 (2014)
  162.  Id. Of those states that allow for the death penalty, a number of them do not have strict cut-offs for IQ scores. See, e.g., Cal. Penal Code § 1376 (West 2016); La. Code Crim. Proc. Ann. art. 905.5.1 (2016); Nev. Rev. Stat. § 174.098.7; Utah Code Ann. § 77–15a–102 (Lexis-Nexis 2016). Similarly, the U.S. Code does not set a strict IQ cutoff. See 18 U.S.C. § 3596(c) (2012).
  163.  This range, referred to as a standard error or measurement or SEM, is used by many states in evaluating the existence of intellectual disability. Hall, 572 U.S. 701, 723 (2014)
  164.  See 137 S. Ct. 1039, 1044 (2017). [hereinafter Moore I].
  165.  Id. at 1049.
  166.  Id. at 1050 (“[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits.”) (emphasis in original); see also id. at 1050 (“Clinicians, however, caution against reliance on adaptive strengths developed in a controlled setting, as prison surely is.”) (internal citations and quotations omitted).
  167.  Id. at 1051 (“Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination.”).
  168.  Id. at 1051 (“The existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”) (internal citations and quotations omitted).
  169.  Id. at 1051. In so concluding, the Court noted that “[m]ild levels of intellectual disability . . . nevertheless remain intellectual disabilities,” and “States may not execute anyone in the entire category of intellectually disabled offenders.” Id. (emphasis in original) (internal citations and quotations omitted).
  170.  See Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
  171.  See Moore I, 137 S. Ct. at 1052.
  172.  Id. at 1052-53. Two years after Moore I, the case returned to the High Court, where, in a per curiam opinion, the Court again reversed the Court of Criminal Appeals of Texas. See Moore v. Texas, 139 S. Ct. 666, 667 (2019) (per curiam) [hereinafter Moore II]. That court had concluded that the prisoner did not have an intellectual disability and was, therefore, eligible for the death penalty. Id. Finding that the lower court’s opinion “repeat[ed] the analysis” the Supreme Court “previously found wanting” in its 2017 opinion, Moore II criticized the Texas court’s (1) reliance on the petitioner’s adaptive strengths in lieu of his adaptive deficits; (2) emphasis on the petitioner’s adaptive improvements made in prison; (3) tendency to consider the petitioner’s social behavior to be caused by “emotional problems,” instead of his general mental abilities; and (4) continued reliance on the Briseno case the Court had previously criticized in Moore I. Id. at 670-72. Ultimately, the Court concluded that the record from the trial court demonstrated that the petitioner was “a person with intellectual disability,” reversing the lower court’s judgment and remanding the case. Id. at 672.
  173.  Thompson v. Oklahoma, 487 U.S. 815 (1988).
  174.  Wilkins v. Missouri was decided along with Stanford.
  175.  Compare Thompson, 487 U.S. at 849 (O’Connor, J., concurring) (two-thirds of all state legislatures had concluded that no one should be executed for a crime committed at age 15, and no state had unequivocally endorsed a lower age limit) with Stanford, 492 U.S. at 370 (15 of 37 states permitting capital punishment decline to impose it on 16-year-old offenders; 12 decline to impose it on 17-year-old offenders).
  176.  536 U.S. at 314, n.18.
  177.  543 U.S. 551 (2005). The case was decided by 5-4 vote. Justice Kennedy wrote the Court's opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor, who had joined the Court's 6-3 majority in Atkins, wrote a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.
  178.  Dissenting in Roper, Justice O’Connor disputed the consistency of the trend, pointing out that since Stanford two states had passed laws reaffirming the permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.
  179.  543 U.S. at 564. The Stanford Court had been split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia's plurality would have focused almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment. 492 U.S. at 377 (A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.). The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant’s culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles. 492 U.S. at 394-96. The Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own evaluation into play along with their analysis of consensus on the issue of executing persons with intellectual disabilities.
  180.  543 U.S. at 569, 570.
  181.  543 U.S. at 570.
  182.  543 U.S. at 572-573. Strongly disagreeing, Justice O’Connor wrote that an especially depraved juvenile offender may . . . be just as culpable as many adult offenders considered bad enough to deserve the death penalty. . . . [E]specially for 17-year-olds . . . the relevant differences between 'adults' and 'juveniles' appear to be a matter of degree, rather than of kind. Id. at 600.
  183.  543 U.S. at 578 (noting the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty, id. at 575).
  184.  543 U.S. at 577, 578. Citing as precedent Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion); Atkins, 536 U.S. at 317 n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 (1982), Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).
  185.  408 U.S. at 248, 257.
  186.  Turner v. Murray, 476 U.S. 28, 36-37 (1986).
  187.  481 U.S. 279 (1987) (5-to-4 decision).
  188.  481 U.S. at 308.
  189.  481 U.S. at 339-40 (Brennan), 345 (Blackmun), 366 (Stevens).
  190.  481 U.S. at 311. Concern for protecting the fundamental role of discretion in our criminal justice system also underlay the Court’s rejection of an equal protection challenge in McCleskey. See discussion of Capital Punishment under the Fourteenth Amendment, infra. See also United States v. Bass, 536 U.S. 862 (2002) (per curiam), requiring a threshold evidentiary showing before a defendant claiming selective prosecution on the basis of race is entitled to a discovery order that the government provide information on its decisions to seek the death penalty.
  191.  Pub. L. No. 104-132, 110 Stat. 1214.
  192.  Herrera v. Collins, 506 U.S. 390, 405 (1993) (we have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus’) (quoting Murray v. Giarratano, 492 U.S. 1, 9 (1989)).
  193.  557 U.S. ___, No. 08-1443 (2009).
  194.  Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, noted that the fact that seven of the state's key witnesses had recanted their trial testimony, and that several people had implicated the state's principal witness as the shooter, made the case exceptional. Justices Scalia, joined by Justice Thomas, dissented.
  195.  492 U.S. 302 (1989).
  196.  489 U.S. 288 (1989).
  197.  The new rule limitation was suggested in a plurality opinion in Teague, and a Court majority in Penry and later cases adopted it. In Danforth v. Minnesota, 128 S. Ct. 1029, 1033 (2008), the Court held that Teague does not constrain[ ] the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion.
  198.  Whorton v. Bockting, 549 U.S. 406, 416 (2007). In Saffle v. Parks, 494 U.S. 484, 494, 495 (1990), the Court stated the two exceptions as follows: The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe . . . or addresses a 'substantive categorical guarante[e] accorded by the Constitution,' such as a rule 'prohibiting a certain category of punishment for a class of defendants because of their status or offense.' . . . The second exception is for 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding.
  199.  Teague v. Lane, 489 U.S. at 311, quoting Mackey v. United States, 401 U.S. 667, 692 (1971). Teague by its terms applies only to procedural rules. Bousley v. United States, 523 U.S. 614, 620 (1998). New substantive rules generally apply retroactively . . . because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose on him. Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004) (internal quotation marks omitted) (the holding of Ring v. Arizona, that a sentencing judge, sitting without a jury [may not] find an aggravating circumstance necessary for imposition of the death penalty, 542 U.S. at 353, quoting Ring, 536 U.S. at 609, was a procedural, not a substantive rule).
  200.  Teague v. Lane, 489 U.S. at 311, 313, quoting Mackey v. United States, 401 U.S. at 693. The second exception was at issue in Sawyer v. Smith, 497 U.S. 227 (1990), in which the Court held the exception inapplicable to the Caldwell v. Mississippi rule that the Eighth Amendment is violated by prosecutorial misstatements characterizing the jury’s role in capital sentencing as merely recommendatory. It is not enough, the Court in Sawyer explained, that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding. Id. at 242.
  201.  Penry, 492 U.S. at 314; accord, Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision. A decision announces a new rule if its result was susceptible to debate among reasonable minds or if it would not have been an illogical or even a grudging application of the prior decision to hold it inapplicable. Butler v. McKellar, 494 U.S. 407, 415 (1990).
  202.  See, e.g., Butler v. McKellar, 494 U.S. 407 (1990) (1988 ruling in Arizona v. Roberson, that the Fifth Amendment bars police-initiated interrogation following a suspect’s request for counsel in the context of a separate investigation, announced a new rule not dictated by the 1981 decision in Edwards v. Arizona that police must refrain from all further questioning of an in-custody accused who invokes his right to counsel); Saffle v. Parks, 494 U.S. 484 (1990) (habeas petitioner’s request that capital sentencing be reversed because of an instruction that the jury avoid any influence of sympathy is a request for a new rule not compel[led] by Eddings and Lockett, which governed what mitigating evidence a jury must be allowed to consider, not how it must consider that evidence); Sawyer v. Smith, 497 U.S. 227 (1990) (1985 ruling in Caldwell v. Mississippi, although a predictable development in Eighth Amendment law, established a new rule that false prosecutorial comment on jurors’ responsibility can violate the Eighth Amendment by creating an unreasonable risk of arbitrary imposition of the death penalty, since no case prior to Caldwell had invalidated a prosecutorial comment on Eighth Amendment grounds). But see Stringer v. Black, 503 U.S. 222 (1992) (neither Maynard v. Cartwright, 486 U.S. 356 (1988), nor Clemons v. Mississippi, 494 U.S. 738 (1990), announced a new rule).
  203.  Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
  204.  Lewis v. Jeffers, 497 U.S. 764, 780-84 (1990). The lower court erred, therefore, in conducting a comparative review to determine whether application in the defendant’s case was consistent with other applications.
  205.  Herrera v. Collins, 506 U.S. 390 (1993) (holding that a petitioner would have to meet an extraordinarily high threshold of proof of innocence to warrant federal habeas relief). Accord, House v. Bell, 547 U.S. 518, 554-55 (2006) (defendant failed to meet Herrera standard but nevertheless put forward enough evidence of innocence to meet the less onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which held that prisoners asserting innocence as a gateway to [habeas relief for claims forfeited under state law] must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' Id. at 2076-2077, quoting Schlup v. Delo, 513 U.S. at 327.) The Court here distinguished freestanding claims under Herrera from gateway claims under Schlup, the difference apparently being that success on a freestanding claim results in the overturning of a conviction, whereas success on a gateway claim results in a remand to the trial court to hear the claim. See also Article III, Habeas Corpus: Scope of the Writ.
  206.  557 U.S. ___, No. 08-1443 (2009).
  207.  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.
  208.  386 U.S. 18 (1967).
  209.  Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).
  210.  Brecht v. Abrahamson, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Brecht was a non-capital case, but the rule was subsequently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam). In Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), the Court held that a reviewing court should apply Brecht’s substantial and injurious effect standard where conviction was based on a general verdict after jury had been instructed on alternative theories of guilt and may have relied on an invalid one.
  211.  Fry v. Pliler, 551 U.S. 112, 114 (2007).
  212.  Sawyer v. Whitley, 505 U.S. 333 (1992). The focus on eligibility limits inquiry to elements of the crime and to aggravating factors, and thereby prevents presentation of mitigating evidence. Here the court was barred from considering an allegation of ineffective assistance of counsel for failure to introduce the defendant’s mental health records as a mitigating factor at sentencing.
  213.  28 U.S.C. § 2254(d)(1).
  214.  535 U.S. 685 (2002).
  215.  The state court’s decision, which applied the rule from Strickland v. Washington, 466 U.S. 668 (1984), rather than the rule from United States v. Cronic, 466 U.S. 648 (1984), to hold that the attorney’s performance was not constitutionally inadequate, was not contrary to clearly established law. Cronic had held that there are some situations, e.g., when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, so presumptively unfair as to obviate the need to show actual prejudice to the defendant’s case. See Effective Assistance of Counsel under Sixth Amendment. The Bell v. Cone Court emphasized the word entirely, noting that the petitioner challenged the defense attorney’s performance only at specific points in the process. Nor was the second statutory test met. Strickland, a highly deferential test asking whether an attorney’s performance fell below an objective standard of reasonableness, was not unreasonably applied. The attorney could reasonably have concluded that evidence presented during the guilt phase of the trial was still fresh to the jury, and that repetition through the presentation of mitigating evidence or through a closing statement was unnecessary to counter the state’s presentation of aggravating circumstances justifying a death sentence.
  216.  549 U.S. 70 (2006).
  217.  Estelle v. Williams, 425 U.S. 501, 512 (1976).
  218.  549 U.S. at 77 (quoting from 28 U.S.C. § 2254(d)(1)).
  219.  Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), quoting Carey v. Musladin, 549 U.S. 70, 77 (2006) (under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), defendant not entitled to habeas relief).
  220.  Murray v. Giarratano, 492 U.S. 1 (1989) (unit attorneys assigned to prisons were available for some advice prior to filing a claim).
  221.  144 U.S. 323, 339-40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135-36 (1903).
  222.  217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines, which it interpreted as having the same meaning. Id. at 367.
  223.  217 U.S. at 381.
  224.  The Eighth Amendment succinctly prohibits ‘excessive’ sanctions. Atkins v. Virginia, 536 U.S. 304, 311 (2002) (applying proportionality review to determine whether execution of persons with intellectual disabilities is cruel and unusual). Proportionality in the context of capital punishment is considered under Limitations on Capital Punishment: Proportionality, supra.
  225.  370 U.S. 660 (1962).
  226.  A different approach to essentially the same problem was taken in Thompson v. Louisville, 362 U.S. 199, 206 (1960), which set aside a conviction for loitering and disorderly conduct as being supported by no evidence whatever. Cf. Johnson v. Florida, 391 U.S. 596 (1968) (no evidence that the defendant was wandering or strolling around in violation of vagrancy law).
  227.  Fully applied, the principle would raise to constitutional status the concept of mens rea, and it would thereby constitutionalize some form of insanity defense as well as other capacity defenses. For a somewhat different approach, see Lambert v. California, 355 U.S. 225 (1957) (due process denial for city to apply felon registration requirement to someone present in city but lacking knowledge of requirement). More recently, this controversy has become a due process matter, with the holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the facts necessary to constitute the crime charged, Mullaney v. Wilbur, 421 U.S. 684 (1975), raising the issue of the insanity defense and other such questions. See Rivera v. Delaware, 429 U.S. 877 (1976); Patterson v. New York, 432 U.S. 197, 202-05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an Eighth Amendment proportionality case, the Court suggested in dictum that life imprisonment without possibility of parole of a recidivist who was an alcoholic, and all of whose crimes had been influenced by his alcohol use, was unlikely to advance the goals of our criminal justice system in any substantial way.
  228.  392 U.S. 514 (1968). The plurality opinion by Justice Marshall, joined by Justices Black and Harlan and Chief Justice Warren, interpreted Robinson as proscribing only punishment of status, and not punishment for acts, and expressed a fear that a contrary holding would impel the Court into constitutional definitions of such matters as actus reus, mens rea, insanity, mistake, justification, and duress. Id. at 532-37. Justice White concurred, but only because the record did not show that the defendant was unable to stay out of public; like the dissent, Justice White was willing to hold that if addiction as a status may not be punished neither can the yielding to the compulsion of that addiction, whether to narcotics or to alcohol. Id. at 548. Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to adopt a rule that [c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change. That is, one under an irresistible compulsion to drink or to take narcotics may not be punished for those acts. Id. at 554, 567.
  229.  445 U.S. 263 (1980).
  230.  In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of Rummel, the Court summarily reversed a decision holding disproportionate a prison term of 40 years and a fine of $20,000 for defendant’s possession and distribution of approximately nine ounces of marijuana said to have a street value of about $200.
  231.  Rummel, 445 U.S. at 275-82. The dissent deemed these three factors to be sufficiently objective to apply and thought they demonstrated the invalidity of the sentence imposed. Id. at 285, 295-303.
  232.  463 U.S. 277 (1983). The case, like Rummel, was decided by a 5-4 vote.
  233.  463 U.S. at 284, 288.
  234.  The final conviction was for uttering a no-account check in the amount of $100; previous felony convictions were also for nonviolent crimes described by the Court as relatively minor. 463 U.S. at 296-97.
  235.  463 U.S. at 297.
  236.  463 U.S. at 297, 303.
  237.  463 U.S. at 292.
  238.  For a suggestion that Eighth Amendment proportionality analysis may limit the severity of punishment possible for prohibited private and consensual homosexual conduct, see Justice Powell’s concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986).
  239.  501 U.S. 957 (1991).
  240.  Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense. 501 U.S. at 994. The Court’s opinion, written by Justice Scalia, then elaborated an understanding of unusual – set forth elsewhere in a part of his opinion subscribed to only by Chief Justice Rehnquist – that denies the possibility of proportionality review altogether. Mandatory penalties are not unusual in the constitutional sense because they have been employed in various form throughout our Nation’s history. This is an application of Justice Scalia’s belief that cruelty and unusualness are to be determined solely by reference to the punishment at issue, and without reference to the crime for which it is imposed. See id. at 975-78 (not opinion of Court – only Chief Justice Rehnquist joined this portion of the opinion). Because a majority of other Justices indicated in the same case that they do recognize at least a narrow proportionality principle (see id. at 996 (Justices Kennedy, O’Connor, and Souter concurring); id. at 1009 (Justices White, Blackmun, and Stevens dissenting); id. at 1027 (Justice Marshall dissenting)), the fact that three of those Justices (Kennedy, O’Connor, and Souter) joined Justice Scalia’s opinion on mandatory penalties should probably not be read as representing agreement with Justice Scalia’s general approach to proportionality.
  241.  Because of the serious nature of the crime, the three-Justice plurality asserted that there was no need to apply the other Solem factors comparing the sentence to sentences imposed for other crimes in Michigan, and to sentences imposed for the same crime in other jurisdictions. 501 U.S. at 1004. Dissenting Justice White, joined by Justices Blackmun and Stevens (Justice Marshall also expressed agreement on this and most other points, id. at 1027), asserted that Justice Kennedy’s approach would eviscerate Solem. Id. at 1018.
  242.  Ewing v. California, 538 U.S. 11 (2003).
  243.  538 U.S. at 29-30.
  244.  538 U.S. at 31.
  245.  538 U.S. at 32. The four dissenting Justices thought that the sentence was invalid under the Harmelin test used by the plurality, although they suggested that the Solem v. Helm test would have been more appropriate for a recidivism case. See 538 U.S. at 32, n.1 (opinion of Justice Stevens).
  246.  Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two petty thefts with a prior conviction.
  247.  538 U.S. at 72.
  248.  560 U.S. 48 (2010).
  249.  Id. at 82. The opinion distinguishes life without parole from a life sentence. An offender need not be guaranteed eventual release under the Graham holding, just a realistic opportunity for release based on conduct during confinement.
  250.  See 543 U.S. 551 (2005). Concurring in the judgement in Graham, Chief Justice Roberts resolved the case under a proportionality test, finding the majority's categorical restriction to be unwise and unnecessary in Graham's circumstances. 560 U.S. 48(Roberts, C.J., concurring).
  251.  560 U.S. 48, 80.
  252.  For a parallel discussion in Roper, see 543 U.S. 551, 568–75 (2005).
  253.  In dissent, Justice Thomas, joined by Justice Scalia and, in part, by Justice Alito, questioned both the basis and the reach of the majority opinion. In addition to strongly objecting to adopting any categorical rule in a nonhomicide context, Justice Thomas pointedly criticized the conclusion that the legislative and judicial records established a consensus against imposing life without parole on juvenile offenders in nonhomicide cases. He also disparaged the majority's independent judgment on the morality and justice of the sentence as wrongfully pre-empting the political process. 560 U.S. 48 (2010) (Thomas, J., dissenting).
  254.  567 U.S. 460 (2012).
  255.  Id. at 471.
  256.  Id. at 482-83.
  257.  Id. at 477-78.
  258.  Id. at 471. In Montgomery v. Louisiana, the Court cautioned, however, that Miller should not be read as merely imposing additional procedural hurdles before a juvenile offender could be sentenced to life without parole. See 136 S. Ct. 718, 733 (2016). Instead, according to the Montgomery Court, Miller barred a sentence of life without parole for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. Id. at 734.
  259.  Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto v. Finney, 437 U.S. 678, 685 (1978)).
  260.  452 U.S. at 347. See also Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (rejecting a challenge to a two-year withdrawal of visitation as punishment for prisoners who commit multiple substance abuse violations, characterizing the practice as not a dramatic departure from accepted standards for conditions of confinement, but indicating that a permanent ban would present different considerations).
  261.  E.g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather strap violates Eighth Amendment); Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate medical neglect of a prisoner violates Eighth Amendment); Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who alleged exposure to secondhand environmental tobacco smoke stated a cause of action under the Eighth Amendment). In Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), the Court overturned a lower court's dismissal, on procedural grounds, of a prisoner's claim of having been denied medical treatment, with life-threatening consequences. Justice Thomas, however, dissented on the ground that the Eighth Amendment's prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence. . . . But even applying the Court's flawed Eighth Amendment jurisprudence, I would draw the line at actual, serious injuries and reject the claim that exposure to the risk of injury can violate the Eighth Amendment. Id. at 95 (internal quotation marks omitted).
  262.  E.g., Hutto v. Finney, 437 U.S. 678 (1978).
  263.  Wilson v. Seiter, 501 U.S. 294 (1991).
  264.  501 U.S. at 303. Deliberate indifference in this context means something more than disregarding an unjustifiably high risk of harm that should have been known, as might apply in the civil context. Rather, it requires a finding that the responsible person acted in reckless disregard of a risk of which he or she was aware, as would generally be required for a criminal charge of recklessness. Farmer v. Brennan, 511 U.S. 825 (1994). In upholding capital punishment by a three-drug lethal injection protocol, despite the risk that the protocol will not be properly followed and consequently result in severe pain, a Court plurality found that, although subjecting individuals to a risk of future harm – not simply actually inflicting pain – can qualify as cruel and unusual punishment . . . , the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.' . . . [T]o prevail on such a claim there must be a 'substantial risk of serious harm,' an 'objectively intolerable risk of harm' that prevents prison officials from pleading that they were 'subjectively blameless for purposes of the Eighth Amendment.' Baze v. Rees, 128 S. Ct. 1520, 1530-31 (emphasis added by the Court). This case is also discussed, supra, under Eighth Amendment, Application and Scope.
  265.  Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive force in suppressing prison uprising did not constitute cruel and unusual punishment).
  266.  Hudson v. McMillian, 503 U.S. 1, 9 (1992) (beating of a shackled prisoner resulted in bruises, swelling, loosened teeth, and a cracked dental plate). Accord Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam).
  267.  309 F. Supp. 362 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971) (district court ordered to retain jurisdiction until unconstitutional conditions corrected, 505 F.2d 194 (8th Cir. 1974). The Supreme Court ultimately sustained the decisions of the lower courts in Hutto v. Finney, 437 U.S. 678 (1978)).
  268.  Rhodes v. Chapman, 452 U.S. 337, 353-54 n.1 (1981) (Justice Brennan concurring) (collecting cases). See Note, Complex Enforcement: Unconstitutional Prison Conditions, 94 Harv. L. Rev. 626 (1981).
  269.  Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman, 452 U.S. 337 (1981).
  270.  See, e.g., Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) (describing conditions of horrendous overcrowding, inadequate sanitation, infested food, and rampant violence); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1981) (describing conditions unfit for human habitation). The primary issue in both Wolfish and Chapman was that of double-celling, the confinement of two or more prisoners in a cell designed for one. In both cases, the Court found the record did not support orders ending the practice.
  271.  Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1991) (allowing modification, based on a significant change in law or facts, of a 1979 consent decree that had ordered construction of a new jail with single-occupancy cells; modification was to depend upon whether the upsurge in jail population was anticipated when the decree was entered, and whether the decree was premised on the mistaken belief that single-celling is constitutionally mandated).
  272.  Pub. L. No. 96-247, 94 Stat. 349, 42 U.S.C. §§ 1997 et seq.
  273.  Pub. L. No. 104-134, title VIII, 110 Stat. 1321-66–1321-77.
  274.  Miller v. French, 530 U.S. 327 (2000). See also Porter v. Nussle, 534 U.S. 516 (2002) (applying the Act’s requirement that prisoners exhaust administrative remedies).
  275.  Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations omitted). Constitutional restraint on school discipline, the Court ruled, is to be found in the Due Process Clause, if at all.