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.”67 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 imposed68 culminated in what appeared to be a decisive rejection of the attack in McGautha v. California.69 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. Georgia70 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 dignity”71 or because it is “morally unacceptable” and “excessive.”72 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.73 Two Justices concluded that capital punishment was both “cruel” and “unusual” because it was applied in an arbitrary, “wanton,” and “freakish” manner74 and so infrequently that it served no justifying end.75

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.76 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.77 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,78 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.79 Divisions among the Justices, however, made it difficult to ascertain the form that permissible statutory schemes may take.80

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,81 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.82

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.83

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.84

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.85 What emerged from the prevailing plurality opinion in these cases are requirements (1) that the sentencing authority, jury or judge,86 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;87 (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;88 (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.89 The Court later ruled, however, that proportionality review is not constitutionally required.90 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.”91

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.92 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.


356 U.S. 86, 99 (1958). back
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. back
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. back
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. back
408 U.S. at 257 (Justice Brennan). back
408 U.S. at 314 (Justice Marshall). back
408 U.S. at 240 (Justice Douglas). back
408 U.S. at 306 (Justice Stewart). back
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. back
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). back
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”). back
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.” back
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). back
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).
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. back
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). back
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. back
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. back
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). back
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, 577 U.S. ___ , No. 14–7505, slip op. at 1–2 (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, slip op. at 1 (Breyer, J., concurring in the judgment). back
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). back
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). back
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). back
Pulley v. Harris, 465 U.S. 37 (1984). back
465 U.S. at 50. back
Ring v. Arizona, 536 U.S. 584 (2002). See also Hurst v. Florida, 577 U.S. ___, No. 14–7505, slip op. at 1–2 (2016). back