Categorical Bans


The Eighth Amendment places substantive limitations on the state's use of the death penalty. There are some persons, or classes of persons, whom the state cannot execute, and there are some crimes for which the death penalty is not a possible punishment.

In determining whether a particular punishment falls within the Eighth Amendment's prohibition against "cruel and unusual punishments," the Supreme Court has employed two methods of analysis. The first is to determine whether the Framers of the Constitution intended to prohibit a particular form of punishment when they adopted the cruel and unusual punishments clause. Under this analysis, the purpose of the clause is to protect American citizens from punishments which were considered unnecessarily cruel, torturous, or barbarous by English law at the time the Eighth Amendment was adopted. Solem v. Helm, 463 U.S. 277, 285-86 (1983); id. at 312-13 (Burger C.J., joined by White, Rehnquist, and O'Connor, J.J., dissenting ). Accordingly, whether the Framers intended the Eighth Amendment to preclude a particular punishment depends in turn upon the view taken by the common law toward the punishment. See generally Ford v. Wainwright, 477 U.S. 399 (1986).

The second method of analysis rests on the premise that the Framers "intended the Eighth Amendment to go beyond the scope of its English counterpart... ," Solem v. Helm, 463 U.S. at 286, and "'draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Gregg v. Georgia, 428 U.S.153, 173 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The analysis of a particular punishment, in light of "the evolving standards of decency," involves two inquiries. First, the Court assesses contemporary standards of decency by focusing upon "objective indicia that reflect the public attitude toward a given sanction," Gregg v. Georgia, 428 U.S. at 173, including "the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made." Enmund v. Florida, 458 U.S. 782, 788 (1982). Second, "informed by [these] objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592 (1977), the Court "bring[s] its own judgment to bear on the matter," Enmund v. Florida, 458 U.S. at 788-89, in order to determine whether the sanction "comports with the basic concept of human dignity at the core of the Amendment." Gregg v. Georgia, 428 U.S. at 182.

While the "basic concept of human dignity" is an expansive and somewhat subjective concept1, the Court has consistently identified two principles for its application. While these principles are certainly not the only tools that can be used to show that a punishment violates human dignity, they are instructive. The first is that to "accord with 'the dignity of man,'" a punishment "[can]not be 'excessive.'" Gregg v. Georgia, 428 U.S. at 173. This means that the state must have "penological justification" for inflicting a punishment. Id. at 183. With respect to the death penalty, the execution of an individual offender must, therefore, serve at least one of "two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." Id.

Unless the death penalty when applied to one in [petitioner's] position measurably contributes to one or both of these goals, it is 'nothing more than the purposeless and needless infliction of suffering'. . ..

Enmund v. Florida, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)) (emphasis supplied).

The second principle grows out of the first. The concept of human dignity cannot allow "the infliction of unnecessary pain in the execution of the death sentence." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (emphasis supplied). While infliction of "the necessary suffering involved in any method employed to extinguish life humanely" is permissible, id., the infliction of "unnecessary" suffering is intolerable. In order to prevail on a challenge to an execution method based on “unnecessary” suffering, an inmate must establish a “substantial risk of serious harm.” Baze v. Rees, 553 U.S. 35, 50 (2008).

The Court has applied these principles to several categories of offenders/offenses:

Coker v. Georgia, 433 U.S. 584 (1977)
Court held that the death penalty cannot be imposed for the crime of rape of an adult woman.

Enmund v. Florida, 458 U.S. 782 (1982)
Court held that Earl Enmund's death sentence -- Enmund was the "wheel man" in a robbery felony/murder -- was disproportionate because he did not kill, intend to kill, or know that a killing would take place. 458 U.S. at 801. In Tison v. Arizona, 481 U.S. 137 (1987), Enmund was modified to say that the death penalty is permissible if the defendant was a major participant in a felony resulting in death and demonstrated a reckless disregard for human life.

Ford v. Wainwright, 477 U.S. 399 (1986)
Court held that a person who is incompetent or insane at the time of his execution cannot be put to death.

Thompson v. Oklahoma, 487 U.S. 815 (1988)
Court held that the death penalty cannot be imposed on a fifteen year old.

Herrera v. Collins, 506 U.S. 390 (1993)
Although rejecting Herrera's claim, the Court recognized that a "truly persuasive demonstration" of actual innocence, based on newly discovered evidence raised for the first time in collateral proceedings, would preclude the state from carrying out an inmate's death sentence.

Atkins v. Virginia, 536 U.S. 304 (2002)
Court held that the Eighth Amendment precludes executing the mentally retarded, overruling Penry v. Lynaugh, 492 U.S. 302 (1989).

Roper v. Simmons, 543 U.S. 551 (2005)
Court overruled Stanford v. Kentucky, 492 U.S. 361 (1989), and held that the Constitution precludes the execution of persons who were sixteen or seventeen years old at the time of the capital offense.

Kennedy v. Louisiana, 554 U.S. 407 (2008)
Court held that the Eighth Amendment precludes imposition of the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

1 The Court has, however, cautioned that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual judges; judgment should be informed by objective factors to the maximum extent possible." Coker v. Georgia, 433 U.S. at 592