the death penalty and the Eighth Amendment

Brumfield v. Cain & Glossip v. Gross

Another Constitutional concept often present in the Court’s criminal jurisprudence is the Constitutional prohibition against cruel and unusual punishment found in the Eighth Amendment, especially as it applies to the death penalty. In the 1976 case of Gregg v. Georgia, the Court held that the death penalty was not per se unconstitutional. Since then, it has revisited the issue several times to flesh out the details of when the application of that penalty fails to conform to Constitutional standards. This term was no exception. In Brumfield v. Cain, the Court ruled 5 – 4 that a death row inmate in Louisiana was entitled to a new hearing on his mental competence. [Read our Preview here.] The Court ruled that Louisiana had misapplied the test for determining whether or not Brumfield was entitled to a hearing, and that Brumfield’s lawyers had sufficiently demonstrated his mental disability to warrant the requested hearing.

In Glossip v. Gross, the Court rebuffed an attempt by death penalty opponents to, in effect, ban the use of a chemical called midazolam in carrying out death sentences. [Read our Preview here.] Writing for a majority comprised of the Chief Justice and Justices Kennedy, Scalia, and Thomas, Justice Alito held that the inmates failed to establish that any risk of unwarranted suffering during the process was substantial when compared to the other available alternatives. In a dissent that grabbed substantial media attention, Justice Breyer (joined by Justice Ginsburg) wrote that changes to American society over the past forty years must be accounted for: “for it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’”