Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
At the time that it establishes the American colonies, Britain imposes the death penalty for more than 200 crimes. This practice is “imported” to the colonies, where it becomes a lasting part of society in the New World. The first recorded execution in the colonies takes place in 1608 in the settlement of Jamestown, Va., where Capt. George Kendall is shot for being a Spanish spy.
Beginning in this period and lasting into the early 1800s, most states begin limiting the number of crimes that are punishable by death (known as “capital” crimes). In 1794, Pennsylvania repeals the death penalty for all crimes except first-degree murder and, in 1834, becomes the first state to hold executions inside prisons rather than in public. Soon after, Tennessee becomes the first state to switch to a policy of “discretionary sentencing,” meaning that the death penalty is not mandatory even if a defendant is convicted of a capital crime. A number of states begin following Tennessee’s lead, passing laws against mandatory death penalty sentences for certain crimes.
The Eighth Amendment is ratified as part of the Bill of Rights. The amendment protects citizens from cruel and unusual punishment.
By Dec. 15, three-fourths of the states ratify the Bill of Rights, the first 10 amendments to the Constitution. The amendments are meant to secure individual liberties and to maintain the balance of power between the federal government and the states. The 10th Amendment states that powers not delegated to the federal government belong to the states. Although not specified in the 10th Amendment, the U.S. Supreme Court rules in years to come that laws affecting family relations, commerce within a state’s borders, and local law enforcement fall within state authority.
In Wilkerson v. Utah, the U.S. Supreme Court rules that it is not “cruel and unusual” punishment to execute a prisoner (convicted of first-degree murder) by public shooting. The court notes that such punishment is imposed by the military when soldiers are found guilty of certain offenses, and if it is allowed in the military, then it is not “cruel and unusual.”
New York is the first state to build an electric chair. Two years later, William Kemmler will become the first person to be executed by this method.
In In re Kemmler, the U.S. Supreme Court rules that New York’s law allowing execution by the newly invented electric chair is constitutional. The Court refuses to find the death penalty is itself “cruel and unusual”; rather, only if the chosen method of execution involves “torture or a lingering death” will it violate the Eighth Amendment. The Court says the electric chair is intended to execute prisoners more humanely than other methods (such as hanging).
After the ruling, William Kemmler becomes the first person in the United States to be executed in the electric chair.
After a brief surge of support for the death penalty during the Civil War (as fear of slave uprisings increased), opposition to capital punishment rises again in the early 20th century. Between 1907 and 1917, six states abolish the death penalty and three states limit its use to a few crimes, such as treason or killing a police officer.
In Weems v. United States, the U.S. Supreme Court finds unconstitutional the sentence of an officer in the government of the Philippines (at that time a U.S. territory), who had been found guilty of falsifying an official document, because it amounts to “cruel and unusual” punishment. The Court rules that although “cruel and unusual” historically has referred to punishment that is “unhuman and barbarous,” such as “torture and the like,” it also can refer to punishment that by its length and harshness is out of proportion to the underlying crime.
The Court concludes that the punishment – 15 years in prison, hard labor, lifetime surveillance, and loss of other civil rights such as the right to vote, parental rights and the right to own property – is so out of proportion with the crime as to be “cruel and unusual.”
Nevada introduces cyanide gas, believed to be a more humane way to execute prisoners. Gee Jon is the first person to be executed using this method.
In Louisiana ex rel. Francis v. Resweber, the U.S. Supreme Court refuses to find it “cruel and unusual” punishment to electrocute a condemned prisoner a second time, after a first attempt failed (due to a malfunction of the electric chair). The Court concludes that the suffering due to a mechanical error is not enough to make that method of execution “cruel and unusual.” The Court finds that there was no intention to increase the prisoner’s suffering beyond whatever suffering naturally occurs during electrocution.
In two cases, the U.S. Supreme Court again tackles the question of when a sentence is so “disproportionate to the crime” as to be “cruel and unusual” punishment. In both cases, the Court makes clear that the meaning of what is “cruel and unusual” will change over time, depending on society’s own attitudes about crime and punishment.
In the 1958 case, Trop v. Dulles, the Court notes that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." The justices conclude that it is unconstitutionally “cruel and unusual” to punish a soldier’s desertion with revoking his citizenship.
Four years later, in Robinson v. California, the Court strikes a California law that makes it illegal to be addicted to drugs. The Court rules that, given that it is now known drug addiction is an illness, it is overly harsh to imprison an individual solely on the basis of addiction. The Court rules the law violates the Eighth Amendment.
The U.S. Supreme Court decides three cases known as a group as Furman v. Georgia. A majority of the Court finds that Georgia’s death penalty statute, which gives the jury complete discretion in sentencing, imposes “cruel and unusual” punishment, violating the Eighth Amendment.
There is not a majority opinion on exactly why the statute is “cruel and unusual,” although three justices say the death penalty is too arbitrary (with poor and minority defendants tending to get death sentences more than rich, white defendants). Two other justices say that death is always a cruel and unusual punishment. The Furman opinion strikes Georgia’s death penalty and those like it in 40 other states, affecting 600 death-row inmates.
Death penalty advocates work to rewrite state laws to address concerns about the arbitrary use of the death penalty. Some states create sentencing guidelines for judges and juries; others require the death penalty when a defendant is convicted of certain crimes. In all, 35 states revise their laws.
In the combined cases of Crampton v. Ohio and McGautha v. California, the U.S. Supreme Court examines the role of jurors in death penalty trials. In Crampton, the Court finds that it is constitutional for a single jury to decide whether a defendant is guilty, and if so, to then decide whether to impose the death penalty. In McGautha, the Court rules that it is constitutional for a jury to decide whether to impose the death penalty, rather than requiring jurors to decide based on rules set by the legislature. Concluding that it is impossible to set absolute standards about which defendants should live and which ones should die, the Court finds that the question should be decided case by case by the jury.
In Estelle v. Gamble, the U.S. Supreme Court rules that prison officials’ “willful indifference” (knowledge about a problem and failure to take action) to the serious medical needs of a prisoner is “cruel and unusual” punishment in violation of the Eighth Amendment. The Court again says that the Eighth Amendment protects against more than just “physically barbarous punishments” such as torture. Its protections also include civilized standards, humanity, and decency.
In a trio of cases known together as Gregg v. Georgia, the U.S. Supreme Court rules that the death penalty is constitutional when there are sentencing guidelines; when decisions of guilt or innocence are made separately from sentencing; and there are immediate appeals of convictions and sentences for capital defendants. The ruling permits executions to resume.
In Woodson v. North Carolina, the U.S. Supreme Court finds unconstitutional a North Carolina law making the death penalty mandatory whenever a defendant is convicted of first-degree murder. The Court rules that in light of the shaky public support for the death penalty, and the absolute nature of the punishment, “fundamental respect for humanity” demands that juries have discretion to consider all “aggravating” and “mitigating” factors, and to impose a different penalty if they find it appropriate.
In Ingraham v. Wright, the U.S. Supreme Court refuses to find that the Eighth Amendment bars punishment of schoolchildren by “paddling.” Based on the amendment’s history and its language – i.e., addressing “bail” and “fines,” as well as “punishment” more generally – the Court concludes that the amendment applies only to punishment of criminal offenses, not civil offenses such as breaking school rules.
Oklahoma becomes the first state to add lethal injection to its list of execution methods. Others follow suit, and five years later, in Texas, Charles Brooks will become the first person to be put to death by lethal injection.
In Coker v. Georgia, the U.S. Supreme Court rules that it is unconstitutional to impose the death penalty in cases of rape, where the victim is an adult and is not killed. As a result, 20 inmates around the country are taken off death row.
In Hutto v. Finney, the U.S. Supreme Court rules that Arkansas’ practice of placing prisoners in isolation cells for 30-day periods as punishment for breaking prison rules is “cruel and unusual” punishment. The Court bases its ruling not on the length of time that prisoners are isolated, but on the overall conditions in the prisons. In other words, Hutto does not create an absolute prohibition on 30-day isolation periods, but instead, makes it necessary to examine all circumstances in deciding whether a certain prison condition is “cruel and unusual.”
In Rummel v. Estelle, the U.S. Supreme Court upholds a Texas statute imposing a mandatory life sentence for any person convicted of three felonies within a 15-year period. Even though the offender in Rummel was only convicted of stealing $250, the Court says it is a state’s right to impose harsher sentences on repeat offenders. The Court also notes that the severity of the life sentence is lessened by Texas’ practice of granting “good time” credits that allow prisoners who maintain clean records to win early release.
In the case Eddings v. Oklahoma, the U.S. Supreme Court finds that an offender’s youth is a “mitigating” factor that a jury may take into account when deciding whether to impose the death penalty, but it is not an absolute bar to a death sentence.
In Enmund v. Florida, the U.S. Supreme Court finds it to be “cruel and unusual punishment” to execute a defendant who drove the getaway car after a robbery resulting in a homicide (but who did not kill, or attempt to kill, anyone). The Court rules that the death penalty is too harsh a penalty to impose on such a minor participant in a felony murder (i.e., a murder that occurs in the course of another felony, such as robbery).
In Rhodes v. North Carolina, the U.S. Supreme Court rejects an inmate’s Eighth Amendment challenge to a prison’s practice of placing two inmates in a cell, or “double celling.” Noting that the Constitution “does not mandate comfortable prisons” and that it only protects against being denied “the minimal civilized measure of life’s necessities,” the court says double celling does not … rise to the level of “unnecessary and wanton infliction of pain” that the Eighth Amendment prohibits.
In Ford v. Wainwright, the U.S. Supreme Court rules that it is “cruel and unusual” punishment to execute an insane offender. The Court also demands that a sentencing court follow specific procedures for deciding whether an offender is mentally competent to be sentenced to death.
In Thompson v. Oklahoma, the U.S. Supreme Court concludes that, according to society’s “evolving standards of decency,” it is “cruel and unusual” punishment, in violation of the Eighth Amendment, to execute offenders who commit their crimes when under the age of 16. A year later, however, in Stanford v. Kentucky, the court approves executions for defendants who were 16 or 17 when they committed their crimes.
In Penry v. Lynaugh, the U.S. Supreme Court rules that an offender’s intellectual disability is not an absolute bar to being sentenced to death, but instead should be considered by the jury as a “mitigating factor” in deciding whether to impose the death penalty.
In Herrera v. Collins, the U.S. Supreme Court rules that even though a death row inmate may be able to present new evidence tending to show his innocence, that is insufficient reason to overturn a death sentence, if the trial was otherwise fair and met all constitutional requirements.
During the execution of Pedro Medina in an electric chair, flames and smoke erupt from the mask covering Medina’s head during the two minutes that the 2,000-volt electric shock is administered. This malfunction, coupled with a similar malfunction during the execution of Jesse Trafero in 1990, leads to a challenge to use of the electric chair as “cruel and unusual” punishment, in violation of the Eighth Amendment. In October 1997, the Florida Supreme Court will uphold the use of the electric chair.
During the electric chair execution of Allen Davis, blood flows from his nose, prompting the next inmate scheduled to die, Thomas Provenzano, to again challenge the electric chair as “cruel and unusual” punishment. In September 1999, the Florida Supreme Court again rejects the challenge, although it does rule that the electric chair should not remain the sole method of execution in the state, and that the choice of lethal injection should be offered to inmates. In 2000 the Florida legislature will pass a law that allows condemned prisoners to choose.
Gov. George Ryan of Illinois, a supporter of the death penalty, declares a moratorium on executions in the state. Citing the fact that more Illinois death row inmates have been released than put to death since the state resumed executions in the late 1970s, Ryan announces that he is creating a panel to study the capital punishment system and to investigate what went wrong in the cases where defendants were wrongly convicted. Two years later, the panel – made up of supporters and opponents of capital punishment – issues a 200-page report recommending 85 changes to the state’s death penalty system.
The U.S. Justice Department releases a 12-year study of the federal death penalty. The study finds that since 1995, 80 percent of the cases in which federal prosecutors called for the death penalty involved defendants who were racial minorities (more than half of them African American).
Additionally, the study shows that federal prosecutors are nearly twice as likely to seek the death penalty when a minority defendant is charged with killing a white person than when a nonwhite person was killed; but when a white defendant is charged with killing a nonwhite person, federal prosecutors are less likely to seek the death penalty than when the victim is white.
In Florida, 14-year-old Lionel Tate is tried as an adult, convicted of first-degree murder and sentenced to life in prison without parole for killing a 6-year-old playmate when Lionel was 12. Lionel insists that the killing was accidental, occurring when he playfully imitated professional wrestling maneuvers. Several months later, Nathaniel Brazill, also 14, is convicted of second-degree murder after being tried as an adult in Florida for shooting his teacher. Nathaniel is sentenced to 28 years in prison without possibility of parole.
In Atkins v. Virginia, the U.S. Supreme Court reverses its 1989 Penry decision and finds that the execution of people who are mentally retarded is “cruel and unusual” punishment, in violation of the Eighth Amendment. The Court cites “evolving standards of decency” as a key basis of its opinion, noting that just two states banned the execution of mentally retarded offenders at the time that Perry was decided, but now, 20 states – and the federal government – ban them.
In Roper v. Simmons, the U.S. Supreme Court rules that execution of juveniles violates the Eighth Amendment. Writing the majority opinion, Justice Anthony M. Kennedy finds that juveniles demonstrate a “lack of maturity and an underdeveloped sense of responsibility,” are susceptible to peer pressure, and have an immature personality. Therefore, they “cannot with reliability be classified among the worst offenders,” he writes.
In California v. Cunningham, the U.S. Supreme Court strikes down California’s sentencing law because it gives judges too much power to increase sentences based on facts not found beyond a reasonable doubt by the jury. The defendant had been convicted in 2003 of sexually abusing his son. Under the California guidelines, the judge could pick between sentences of six, 12 or 16 years, but was obligated to pick the middle term unless he could find aggravating circumstances to justify the higher sentence. The Court rules that these factual findings must be left to a jury, but leaves it to the California Legislature to rewrite the law to meet constitutional standards.
In two decisions, Gall v. United States and Kimbrough v. United States, the U.S. Supreme Court holds that federal district judges can deviate from federal sentencing guidelines to impose what they think are reasonable sentences. They may not impose sentences above the range written into law, but they can impose sentences higher or lower than the federal guidelines, which are issued by the United States Sentencing Commission. The guidelines are only “a starting point” in determining a sentence, the Court says.
In Baze v. Rees, the U.S. Supreme Court finds Kentucky’s method of execution – lethal injection – constitutional. Two death-row inmates had challenged the procedure, saying that it posed unnecessary risks that an inmate would suffer severe, undetectable pain in light of possible alternatives. The challenge focused on the details of the injection: chemicals used, personnel’s training, adequacy of medical supervision, and the consequences and risk of error. The Court says the risks are not so substantial as to violate the Eighth Amendment.
In Kennedy v. Louisiana, the U.S. Supreme Court holds, 5-4, that imposing the death penalty for the rape of a child constitutes cruel and unusual punishment in violation of the Eighth Amendment. The ruling overturns death penalty laws in six states. The justices extend their decision to rule out the death penalty for any individual crime in which the victim was not killed.
The U.S. Supreme Court, in a 5-4 decision, rejects life sentences without parole for juveniles who are convicted of crimes other than homicide, saying they violate the Eighth Amendment’s ban on cruel and unusual punishment. The ruling in Graham v. Florida extends the Court’s movement toward treating minors differently from adults. Justice Anthony M. Kennedy, writing for the majority, says states must provide juveniles who receive lengthy sentences a “meaningful” chance at some point to show they should be released.
The U.S. Supreme Court, in a 5-4 decision, limits the use of mandatory sentences of life in prison without parole for juveniles convicted of murder. The ruling says the mandatory sentences are unconstitutional because they violate the Eighth Amendment’s ban on cruel and unusual punishment. Justice Elena Kagan writes that legal precedents make clear that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty” on those under the age of 18. The justices who dissented say that legislatures, and not courts, should decide what is an appropriate sentence for juveniles convicted of murder. The ruling in Miller v. Alabama does not impose a strict ban on life-without-parole sentences for juveniles, but the Court’s majority says the “appropriate occasions” for such a penalty “will be uncommon.”
The U.S. Supreme Court makes retroactive its 2012 ruling in Miller v. Alabama that struck down mandatory life sentences without parole for juveniles. The Court rules, 6-3, that those sentenced as juveniles to mandatory life in prison should have a chance to be resentenced or to argue for parole.
The U.S. Supreme Court decides, 5-4, in Glossip v. Gross against Oklahoma death-row inmates who said that use of a sedative called midazolam resulted in executions that violated the Eighth Amendment’s ban on cruel and unusual punishment. Botched executions had resulted in national headlines. The majority opinion, written by Justice Samuel Alito, says that the Oklahoma inmates did not meet their burden of identifying a “known and available alternative method of execution.”
A Muslim inmate, Domineque Ray, is executed in Alabama after the U.S. Supreme Court lifted a stay of execution granted by an appeals court. Ray had challenged the prison’s refusal to allow his imam to be with him in the execution chamber. Prison officials allow only their own Christian chaplain inside the execution chamber, saying it would be a security risk to let someone who wasn’t a state employee inside. The justices said Ray waited too long to contest the decision. The dissent said: “The clearest command of the Establishment Clause” is that “one religious denomination cannot be officially preferred over another.”
In the case Timbs v. Indiana, the U.S. Supreme Court rules that the Eighth Amendment’s ban on excessive fines applies to state and local governments. The case involved a car owner whose $42,000 Land Rover was seized by the state of Indiana after he was arrested for selling heroin to undercover police for $400. Justice Ruth Bader Ginsburg wrote: “Forfeiture of the Land Rover … would be grossly disproportionate to the gravity” of the offense. She said excessive fines undermine other liberties since they could be used to retaliate against political enemies, They also have been used as a source of revenue. The ruling means state and local governments cannot use fines to raise revenue.
The U.S. Supreme Court votes 5-3 to block the execution of an inmate with dementia. Convicted of killing a police officer, the Alabama man has been on death row for more than 30 years and has suffered a series of strokes. He says he doesn’t remember the crime. The majority opinion in Madison v. Alabama sends the case back to the lower court to ensure that, if the inmate is to be executed, he understands why. The Court says a precedent that bars the execution of people who lack a “rational” understanding of why they are being executed may apply to inmates with dementia.
The U.S. Supreme Court halts the execution of a Texas inmate, Patrick Murphy, because he was not allowed to have his Buddhist spiritual adviser in the execution chamber. In a concurring opinion, Justice Brett Kavanaugh wrote that the state’s policy of allowing only Christian and Muslim chaplains in the execution chamber amounted to unconstitutional religious discrimination. Inmates of other religious denominations may have the religious advisers present only in the viewing room under state policy.
In a 5-4 decision in Bucklew v. Precythe
, the U.S. Supreme Court ruled against a Missouri inmate, Russell Bucklew, who said that his execution by lethal injection would cause “severe harm and suffering” because of a rare disease. His lawyers say the disease, cavernous hemangioma, would cause prolonged suffocation if he underwent lethal injection. They argued for death by lethal gas.
The majority opinion said that the Eighth Amendment “does not demand avoidance of all risk of pain” during executions. The opinion said that Bucklew did not provide evidence that lethal gas would reduce his risk of pain.
The U.S. Supreme Court declines to hear a challenge to new federal death penalty protocols, potentially clearing the way for the government to resume executions for the first time since 2003. The four death row inmates who filed the lawsuit could file additional challenges. Attorney General William Barr indicated last summer that he intended to resume the use of the death penalty at the federal level using a single drug, pentobarbital. Attorneys for the four inmates have argued that the use of a single drug, rather than the three-drug cocktail required in many states, violates a mandate that federal executions be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”