death penalty

The death penalty is the state-sanctioned punishment of executing an individual for a specific crime. Congress, as well as any state legislature, may prescribe the death penalty, also known as capital punishment, for crimes considered capital offenses. The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies to the states, as well as the federal government.

Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts look for objective factors to show a change in community standards and make independent evaluations about whether the statute in question is reasonable.

History of the Death Penalty

Initial Ban 

In Furman v. Georgia, 408 U.S. 238 (1972), the Court invalidated existing death penalty laws because they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against impoverished and minority communities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society.


In Gregg v. Georgia, 428 U.S. 153 (1976), the Court refused to expand Furman. The Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence.  Specifically, the Court upheld Georgia‚Äôs new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes.

Proportionality Requirement

In Coker v. Georgia, 433 U.S. 584 (1977), the U.S. Supreme Court held that a penalty must be proportional to the crime; otherwise, the punishment violates the Eighth Amendment's prohibition against cruel and unusual punishment.

In performing its proportionality analysis, the Supreme Court looks to the following three factors:

  • A consideration of the offense's gravity and the stringency of the penalty;
  • A consideration of how the jurisdiction punishes its other criminals;
  • And a consideration of how other jurisdictions punish the same crime.

Twenty-one years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found that national consensus rendered the death penalty disproportionate in these cases.

Principle of Individualized Sentencing 

To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In Ring v. Arizona, 536 U.S. 584 (2002),  the Supreme Court held that it is unconstitutional for "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." 

The Supreme Court further refined the requirement of "a finding of aggravating factors" in Brown v. Sanders546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor to be invalid, the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.

The decision in Kansas v. Marsh, 548 U.S. 163 (2006) offered yet another clarification to the principle of individualized sentencing jurisprudence. Under Marsh, states may impose the death penalty when the jury finds any aggravating and mitigating factors to be equally weighted, without violating the principle of individualized sentencing.

Method of Execution

A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. 

State courts and lower federal courts have refused to strike down hanging and electrocution as impermissible methods of execution. In Baze v. Rees, 553. U.S 35 (2008), the Supreme Court held that the lethal injection does not constitute a cruel and unusual punishment. The Supreme Court in Baze also applied an "objectively intolerable" test to determine if the method of execution violates the Eighth Amendment's ban on cruel and unusual punishment. The legality of lethal injection was upheld in Glossip v. Gross, 576 U.S. (2015)

Classes of Persons Ineligible for the Death Penalty

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court decided that executing intellectually/developmentally disabled criminals violates the ban on "cruel and unusual punishment" because their cognitive disability lessens the severity of the crime, and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bies, 556 U.S. 825 (2009), the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled developmentally disabled before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate disability claims.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court banned the death penalty for all juvenile offenders. The majority opinion pointed to teenagers' lack of maturity and responsibility, greater vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimes.

In Hall v. Florida, 572 U.S. (2014), the Supreme Court held that a brightline IQ threshold may not decide whether someone is intellectually/developmentally disabled for the purpose of being eligible for the death penalty.  

For more on the death penalty, see this Florida State University Law Review article, and this Harvard Law Review article

Federal Material

U.S. Constitution and Federal Statutes
Federal Judicial Decisions

U.S. Supreme Court:

State Material

State Statutes
State Judicial Decisions

N.Y. Court of Appeals:

Key Internet Sources

See also: Criminal Procedure; Sentencing

[Last updated in September of 2022 by the Wex Definitions Team