By Kemarah Thermidor '27
American culture has experienced significant changes in attitudes toward what is considered humane, as shown by the evolution of the application of the Eighth Amendment’s protection against cruel and unusual punishment in capital cases. (1) While first ratified in 1791, concise litigation and judicial review of the Eighth Amendment was not heavily enforced until much later. (2) This can be explained by the societal norms and cultural practices of the time; changes in the interpretation of the Eighth Amendment on the application of the death penalty underscore that what is considered “cruel and unusual punishment” is indicative of current social values.
Understanding the interplay between law and society in the case of social attitudes and legal resolutions on capital punishment begins with recognizing Britain’s 18th-century precedents. A known 222 set crimes could lead to one’s (some might say “cruel and unusual”) death. (3) These included “stealing grapes, killing chickens, and trading with Indians.” (4) It’s fair to say that, from initial consideration, the societal acceptance of what was considered crime enough to end a perpetrator’s life is very different today. Culture has shaped how capital punishment is regarded today, with only 27 out of 50 U.S. States with the death penalty. (5) The details of this relationship reveal judgments about majority opinion regarding what crimes are fit for capital punishment, who should receive the death penalty, and whether the death penalty should exist at all.
A heightened discussion of the logistics of capital punishment and its relation to the Eighth Amendment began in the early 1970s with Furman v. Georgia. The verdict of this case was straightforward, stating that the death penalty violated citizens’ protection from “cruel and unusual punishment” as written in the Eighth Amendment and “the privileges or immunities of citizens of the United States” promised by the Fourteenth Amendment. (6) The heart of this conclusion seemed to be based on the potential for the death penalty to be used in a discriminatory fashion, with Justice Stephen J. Field opining in 1892: “...there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns…carried out on the poor, the Negro, and the members of unpopular groups." (7) This conclusion mirrors the strides the Civil Rights Movement had made in the decade prior to Furman, including the Civil Rights Act of 1964 (which outlawed the discrimination of race, color, & sex in employment).
It is reasonable to assume the public’s cultural debate of human rights and equality resulted in a higher consideration of what “discriminatory patterns” a law enforced may detail. (8) Furman was overturned only 4 years later in Gregg v. Georgia, where the death penalty was not deemed unconstitutional, as long as it was enforced impartially. Further observance of the complex positions of the 5-4 majority justice opinion in Furman explains this swift change; a major cause of hesitancy to endorse capital punishment revolved around concerns that the death penalty might be administered discriminatorily. (9) Gregg v. Georgia elaborated on important elements missing from prior death penalty applications: specific standards and guidelines. This is addressed directly in the plurality opinion, where Justice Potter Stewart stated, “concerns expressed in Furman…can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.” (10) The 7-2 majority justice opinion in Gregg v. Georgia finalized the death penalty as constitutional, not violating the Eighth or Fourteenth Amendment, and could be executed per the severity of the crime, defendant’s “nature”, in precedents of previous cases. (11) While seemingly straightforward, future cases would raise questions considering the scope of these determinants.
Following 1976, a series of cases evaluating the constitutionality of applying the death penalty in certain circumstances ensued. Enmund v. Florida (1982) brought up the topic of intent, with a 5-4 majority justice opinion deciding that imposing the death penalty on an individual who was an aid to kill, but “but did not himself kill, attempt to kill, or intend to kill” is unconstitutional. (12) This clarification came after a robbery gone wrong, where Earl Enmund acted as a getaway driver, and claimed the death penalty was an excessive punishment for him because he was unaware a death would occur during the robbery. (13) After a jury sentenced Daryl Atkins to death for his convictions of abduction, armed robbery, and capital murder, a second sentencing concluded Atkins could not receive the death penalty due to his mental state; “Executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment.” (14)
This verdict held influence in other capital cases. Just three years later, applying the death sentence to juvenile offenders was ruled as “cruel and unusual” in Roper v. Simmons, the previous allowance in Stanford v. Kentucky was due to the idea that the “majority of Americans did not consider the execution of minors to be cruel and unusual.” (15) This leads to two reasonable assumptions: the more the eighth amendment is analyzed and applied to various capital cases, more restrictions are created in the allocation of death sentencing and the American public was being more considerate of what they considered “cruel and unusual.” A more recent development exemplifying this principle is the aftermath of Oklahoma’s use of lethal injection as a form of execution. After Clayton Lockett’s botched execution by lethal injection in 2014, Oklahoma courts paused all future executions to investigate the cause of the extended 40 minutes during which Lockett awoke when he was supposed to be unconscious prior to his passing. (16) After over 20 inmates lost a preliminary injunction where they argued against the use of midazolam (a sedative) in execution, Richard Glossip tried the argument once again. (17)
This back and forth between the incarcerated and the courts shifted the focus from whether the Constitution supported capital punishment to what a constitutional form of capital punishment looked like. The argument against midazolam as an initial drug in the lethal injection execution is “cruel and unusual,” because of its risk of pain. This argument was deemed as containing insufficient evidence, with a 5-4 majority justice opinion concluding a pain-free alternative form of execution was not provided and the sentiment that capital punishment does not have to be “pain-free” in order to be constitutional. (18) A consistent dissenting opinion seen in previous cases is the idea that capital punishment was no longer constitutional due to current “social and legal standards,” in this case, Justice Stephen G. Breyer. (19) This seeming minority opinion on the relevancy of the death penalty is one that has become more mainstream, especially as media platforms have allowed the spread of data, information, and opinion.
The Innocence Project is one of these more well-known efforts to minimize the use of the death penalty and spread stories of individuals who were convicted of crimes but are claiming innocence. A collection of their clients, including Ronald Jones and Earl Washington, had exonerations that had a significant influence on their states’ death penalty laws. (20) These efforts are made through refined scientific evidence and exposure to disproven identification methods, and they continue to advance through the Innocence Project’s efforts and donations. The values of The Innocence Project seem to align with modern opinion, as a 2023 poll reveals 50% of Americans believe capital punishment is used unfairly in the U.S., an increase of 10% from just a decade earlier. (21) This is especially insightful as public support for the death penalty in murder cases was 80% at its peak in 1994, prior to the Atkins v. Virginia case, and sat at 53% in 2023. (22) As these numbers continue to change, it begs the question of whether or not legal attitudes toward the death penalty will shift in such a way that capital punishment is re-evaluated as unconstitutional, or “cruel and unusual.”
All things considered, capital punishment’s timeline from extreme forms of execution (including hanging) in response to a host of offenses (many of which are no longer applicable), to now being implemented in the case of capital offenses to the decision of a jury is a notable change in legal resolutions. It’s fair to assume that the Eighth Amendment’s application will continue to transform the use of capital punishment as public opinion changes, and vice versa.
Endnotes
Legal Information Institute, Eighth Amendment, LII / Legal Information Institute (2017). https://www.law.cornell.edu/constitution/eighth_amendment.
Amdt8.2.1 Historical Background on Excessive Bail, CONSTITUTION ANNOTATED. https://constitution.congress.gov/browse/essay/amdt8-2-1/ALDE_00000960/.
History of the Death Penalty, Death Penalty Information Center (2024). https://deathpenaltyinfo.org/curriculum/high-school/about-the-death-penalty/history-of-the-death-penalty.
Ibid.
Death Penalty Information Center, State by State, Deathpenaltyinfo.org (2023), https://deathpenaltyinfo.org/states-landing.
Chris Skelton, Furman v. Georgia, 408 U.S. 238 (1972), Justia Law (2019), https://supreme.justia.com/cases/federal/us/408/238/.
Ibid.
History.com Editors, Civil Rights Movement Timeline, History.com (2017), https://www.history.com/topics/black-history/civil-rights-movement-timeline.
Furman v. Georgia, Oyez. https://www.oyez.org/cases/1971/69-5030.
Gregg v. Georgia, 428 U.S. 153 (1976), Justia Law (2019). https://supreme.justia.com/cases/federal/us/428/153/.
Gregg v. Georgia, Oyez. https://www.oyez.org/cases/1975/74-6257.
Enmund v. Florida, Oyez (2020). https://www.oyez.org/cases/1981/81-5321.
Ibid.
Atkins v. Virginia, 536 U.S. 304 (2002), Justia Law (2020). https://supreme.justia.com/cases/federal/us/536/304/.
Roper v. Simmons, Oyez. https://www.oyez.org/cases/2004/03-633.
Glossip v. Gross, Oyez (2020). https://www.oyez.org/cases/2014/14-7955.
Ibid.
Glossip v. Gross, 576 U.S. 863 (2015). Justia Law. https://supreme.justia.com/cases/federal/us/576/863/.
Ibid.
Innocence Project, Innocence Project - History of Impact, Innocence Project History (2023). https://history.innocenceproject.org/.
Megan Brenan, New 47% Low Say Death Penalty Is Fairly Applied in U.S., Gallup.com (2023). https://news.gallup.com/poll/513806/new-low-say-death-penalty-fairly-applied.aspx.
Ibid.
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