Eighth Amendment: Cruel and Unusual Punishment

Chapter 21

Eighth Amendment: Cruel and Unusual Punishment

The death penalty has been an extremely contentious issue in the United States for decades. The Supreme Court’s jurisprudence on the subject reflects this controversy. In a 1971 decision, McGautha v. California, 402 US 183 (1971), the Court ruled that the death penalty was constitutional. A year later, in Furman v. Georgia, 408 US 238 (1972), the Court, in a five to four decision, ruled that the state of Georgia’s death penalty statute was unconstitutional because it allowed the jury too much discretion, resulting in the penalty being applied in an inconsistent manner. The Furman case led to a de facto moratorium on capital punishment throughout the United States. However, states began passing new death penalty statutes in an effort to comply with Furman. In 1976, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court upheld Georgia’s new death penalty statute on the grounds that it: (1) sufficiently guided the jury’s discretion in a manner that avoided arbitrary and capricious applications of the death penalty, and (2) provided for an individualized determination of the sentence that took into consideration both the circumstances of the crime and the background and character of the accused.

The Supreme Court has scrutinized other aspects of the death penalty as well, primarily under the Eight Amendment’s Cruel and Unusual Punishment clause. Specifically, the Court has reviewed the death penalty’s applicability to minors and the mentally ill, as well as the widespread use of lethal injections. While earlier Supreme Court decisions had upheld the death penalty for minors, the Court reconsidered the issue in 2005. In Roper v. Simmons, 543 US 551 (2005), another five to four decision, the Court decided that the execution of those less than 18 years of age violated the Cruel and Unusual Punishment clause. Justice Anthony Kennedy wrote the opinion, arguing that, given the diminished culpability of minors, they are not among the “worst of the worst” offenders, and that neither the principle of deterrence nor retributive justice are appropriate justifications for applying the death penalty to minors. Concerning the mentally ill, the Court ruled in Ford v. Wainwright, 477 US 399 (1986), that executing insane or mentally incompetent people who are incapable of understanding the moral and legal implications of what they have done violated the Cruel and Unusual Punishment clause as well. With regard to lethal injections, the Court in Baze v. United States, 553 US 35 (2008), considered whether Kentucky’s use of lethal injections violated the Cruel and Unusual Punishment clause. The Court rejected the challenge, thereby upholding Kentucky’s method of lethal injection by a vote of seven to two.

Roper v. Simmons

Citation: 125 S.Ct. 1183.

Issue: Whether execution of individuals who were under 18 years of age at time of their capital crimes is prohibited by the Eighth and Fourteenth Amendments.

Year of Decision: 2005.

Outcome: Yes. Given the characteristics of minors, the cruel and unusual punishment clause prohibits giving them the death penalty.

Author of Opinion: Justice Kennedy.

Vote: 5-4.

When he was 17, Christopher Simmons killed a woman named Shirley Cook. Simmons had said he wanted to murder someone. Simmons discussed his plan with two friends, Charles Benjamin and John Tessmer. Simmons proposed to commit burglary and murder by breaking into a home, tying up a victim, and throwing the victim off a bridge. Simmons told his friends they could “get away with it” because they were minors. On the night of the murder, Simmons and Benjamin broke into the home of the victim, Shirley Crook. Simmons then entered Mrs. Crook’s bedroom, and used duct tape to cover her eyes and mouth and bind her hands. Simmons and Benjamin then put Mrs. Crook in her minivan and drove to a state park. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge. Shirley Cook drowned in the waters below.

In a 5-4 opinion authored by Justice Kennedy, the Court ruled that the evolving standards of decency that mark a maturing society have come to reveal that executing minors is “cruel and unusual punishment” prohibited by the Eighth Amendment. The majority maintained that a consensus against the juvenile death penalty had developed among state legislatures, as well as its own conclusion that the death penalty is a disproportionate punishment for minors. The majority opinion looked to studies purporting to show that minors lack the moral judgment needed to be accountable for their actions so far as the death penalty is concerned. In addition, the Court pointed to what it called “overwhelming” international opinion against the juvenile death penalty.

Chief Justice Rehnquist and Justices Scalia, O’Connor, and Thomas all dissented. In his dissent, Justice Scalia compared the majority’s “evolving standards of decency” claim to nothing more than the Justices’ own subjective opinions, and argued that the Court should not act as a super-legislature in these areas, but leave such decisions to the democratic process. Justice Scalia also pointed to studies demonstrating that some people who are younger than 18 are, in fact, responsible for their actions.


Justice KENNEDY delivered the opinion of the Court.

. . . The prohibition against “cruel and unusual punishments,” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. . . .

Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” This principle is implemented throughout the capital sentencing process. States must give narrow and precise definition to the aggravating factors that can result in a capital sentence. In any capital case a defendant has wide latitude to raise as a mitigating factor “any aspect of [his or her] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” There are a number of crimes that beyond question are severe in absolute terms, yet the death penalty may not be imposed for their commission. The death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime. These rules vindicate the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders.

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behavior.” In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.”. . .

Once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults. We have held there are two distinct social purposes served by the death penalty: “ ‘retribution and deterrence of capital crimes by prospective offenders.’ ” As for retribution, we remarked in Atkins that “[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” The same conclusions follow from the lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.

As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for petitioner acknowledged at oral argument. In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes. Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in Thompson, “[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.” To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.

In concluding that neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile offenders have committed. Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is the linchpin of one contention pressed by petitioner and his amici. They assert that even assuming the truth of the observations we have made about juveniles’ diminished culpability in general, jurors nonetheless should be allowed to consider mitigating arguments related to youth on a case-by-case basis, and in some cases to impose the death penalty if justified. A central feature of death penalty sentencing is a particular assessment of the circumstances of the crime and the characteristics of the offender. The system is designed to consider both aggravating and mitigating circumstances, including youth, in every case. Given this Court’s own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on any offender under 18 years of age.

We disagree. The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant’s youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons’ youth was aggravating rather than mitigating. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. . . .

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting.

. . . In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78. But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” The Court thus proclaims itself sole arbiter of our Nation’s moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. . . .

Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand—”[i]n chilling, callous terms,” as the Court puts it, —the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17–year–olds, one 16–year–old, and one 19–year–old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. . . .


Birckhead, Tamar R. “The Age of the Child: Interrogating Juveniles after Roper v. Simmons.” Washington & Lee Law Review 65 (2008): 385.

Massey, Hillary J. “Disposing of Children: The Eighth Amendment and Juvenile Life without Parole after Roper.” Boston College Law Review 47 (2006): 1083.

Kennedy v. Louisiana

Citation: 128 S.Ct. 2641.

Issue: Whether states violate the Eight Amendment’s ban on cruel and unusual punishment by imposing the death sentence for the crime of child rape.

Year of Decision: 2008.

Outcome: Yes. Applying the death penalty for the rape of a child when there was no intent to kill the child violates the Eighth Amendment’s ban on cruel and unusual punishments.

Author of Opinion: Justice Kennedy.

Vote: 5-4.

A Louisiana court found Patrick Kennedy guilty of raping his eight-year-old step-daughter. Louisiana law allows the death penalty for defendants under certain circumstances, including raping children under the age of twelve. Kennedy was convicted by a jury and sentenced to death.

In a 5-4 decision the Court found that the Eighth Amendment’s prohibition against “cruel and unusual punishment” bars states from imposing the death penalty for the rape of a child where the defendant did not intend to kill the child, and the child did not die. Enforcing the death penalty in such a case would constitute “cruel and unusual punishment.” Justice Kennedy delivered the opinion of the Court.

Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented. In Justice Alito’s view, no national consensus existed prohibiting the death penalty in this case. Moreover, Justice Alito strongly opposed the majority’s application of a “blanket rule” barring the death penalty in child rape cases regardless of the facts of the case, such as the age of the child or the sadistic nature of the crime.


Justice KENNEDY delivered the opinion of the Court.

. . . The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” The Court explained in Atkins, and Roper, that the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” This is because “[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.”

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. It is the last of these, retribution, that most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Though the death penalty is not invariably unconstitutional, the Court insists upon confining the instances in which the punishment can be imposed.

Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime. The Court further has held that the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. . . . On the other hand, the Court [has] allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their involvement in the events leading up to the murders was active, recklessly indifferent, and substantial. . . .

Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.

These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. . . .

Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Because neither of these justifications is sound, I respectfully dissent.


Barkow, Rachel E. “The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity.” Michigan Law Review 107 (2009): 1145.

Flickinger, Benjamin J. “Kennedy v. Louisiana: The United States Supreme Court Erroneously Finds a National Consensus against the Use of the Death Penalty for the Crime of Child Rape.” Creighton Law Review 42 (2009): 655.

Graham v. Florida

Citation: 130 S.Ct. 2011.

Issue: Whether the Eighth Amendment prohibits imposition of life without parole sentence on juvenile offenders who did not commit homicide.

Year of Decision: 2010.

Outcome: Yes. Imposing a life without parole sentence on juvenile offenders who did not commit homicide constitutes cruel and unusual punishment.

Author of Opinion: Justice Kennedy.

Vote: 6-3.

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