The Eighth Amendment states that “excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishments inflicted,” ensuring that those who are convicted receive a reasonable punishment. It seems to be pretty straight forward – but of course, in law, there is always something to argue over. The Eighth Amendment has had some pretty significant lawsuits and cases before the Supreme Court, almost all of which include the death penalty.
First, the Supreme Court dealt with methods of how one could be executed, since execution and capital punishment was basically understood as a fact of life in the early years of America. For a time, then, the firing squad and electrocution were perfectly constitutional, as did re-execution after an initial failed attempt. However, in Powell v Alabama in the 1930’s, rights were expanded to indigent and illiterate defendants, who were to be ensured that, in cases facing capital punishment, they should have the right to counsel.
The eighth amendment came under severe scrutiny in the 1970s when the Supreme Court handled the Furman v. Georgia case. This case struck down all death penalty schemes currently in existence in the country. Before states could reinstate the death penalty, they had to remove any arbitrary or discriminatory effects to be considered constitutional under the Eighth Amendment. The plurality opinion held that the decisions of who was to face the death penalty appeared to be arbitrary, often disproportionately affecting black Americans. Only two justices in the plurality felt that the death penalty itself was cruel and unusual punishment. However, as seen currently, this interpretation has not been upheld, but rather only the interpretation wherein methods in which the defendants to die had been selected were considered arbitrary and capricious. The Furman decision was striking because it caused all death sentences pending to be reduced down to life in prison, and required state legislatures to rethink and redraft their capital punishment laws.
This all changed in another case out of Georgia, Gregg v Georgia, where the Supreme Court somewhat walked back its striking down of the death penalty. Essentially, as long as there was a jury which was selected in a way which would direct and limit the sentencing discretion, and their judgment was subjected to meaningful appellate review, then the death sentence might be considered constitutional under the Eighth Amendment. The death penalty can never be mandatory under a statute. Once this case came out, the death penalty and capital punishment has continued to be refined and whittled down in Supreme Court jurisprudence.
For example, in Ford v Wainwright, the Court held that it was unconstitutional for an insane person to be executed. Nearly 20 years later, the Court in Atkins v Virginia determined that the execution of mentally retarded offenders is also unconstitutional. Defense attorneys will often attempt to show that their client is incompetent (either insane or with diminished intelligence) to avoid the death penalty. The reality is, very often these offenders do have limited faculties, and have often been ignored by the state mental health services. In a case out of Texas, Panetti v. Quarterman, a death row inmate brought a suit against the Warden to avoid the death penalty. A diagnosed schizophrenic, he represented himself at trial and attempted to call Jesus Christ and John F. Kennedy as witnesses. The lawyer who was appointed to represent him called his behavior scary and bizarre, and it was clear that he was incompetent and the trial made a mockery of the justice system. Nevertheless, he was sentenced to death. At the Supreme Court, right before his execution was scheduled, the Supreme Court ruled that defendants could not be executed if they could not understand the reason for it. Once a state has set an execution date, then the condemned may litigate their competency to be executed in habeas corpus proceedings. It stands to reason then, that someone who was competent to stand trial, may very well have diminishing mental health while living on death row for decades, and may be declared unfit for execution.
Even in the last decade, the death penalty is brought before the Supreme Court almost every session. The type of drugs used, the types of crimes which carry the death penalty, and even how to determine intellectual disability have all come before the Court in recent years. Thirty-one states still have the death penalty, although several have a governor-imposed moratorium, and even more are considering doing away with the punishment. The federal government no longer has the death penalty for its convicts. The Eighth Amendment is designed to change with societal values – and capital punishment has been the most controversial and evolving sentence to challenge the Eighth Amendment.
