Introduction

The Eighth Amendment to the United States (U.S.) Constitution prohibits inter alia ‘cruel and unusual punishments’.¹ In Trop v Dulles,² decided in 1958, Chief Justice Warren held that the punishments clause ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’.³ This application of an ‘evolutive’ method of interpretation to the Eighth Amendment – stemming from the concept of a ‘living Constitution’⁴ – was based upon the 1910 case of Weems v U.S.⁵ In that case Justice McKenna had ruled that the punishments clause of the Eighth was ‘not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.’⁶ Over the last century, it is this exercise in evolutive interpretation which has contributed significantly to constitutional adjudication of the Eighth Amendment. Generations of authors have written reams of literature on capital punishment's flaws and its moral reprehensibility. This article avoids that track, instead reviewing the Court's evolution of the Eighth Amendment's restriction on capital punishment, through a reduction in the constitutional modes of capital punishment, the range of crimes punishable by death and those classes of prisoners to which the ultimate sentence is permissible. The article then makes the argument that the Supreme Court has narrowed the death penalty to such an extent that it is a vanishing institution, for better or worse, finally providing two potential explanations for the Court’s evolution in this direction.

Capital Modes of Punishment

In the U.S. the death penalty is available to sentencers in 33 states, the federal government and the military,⁷ the lowest numbers on record since the foundation of the Union. Currently, the most prevalent method of capital punishment is the lethal injection,⁸ used in 87.07% of the executions since 1976.⁹ A three-drug cocktail, known as a ‘protocol’, was previously used to carry out such executions, as it was seen to prevent unnecessary pain or suffering through the use of the barbiturate sodium thiopental, followed by the muscle relaxant pancuronium bromide and finally the cardiac-arrest inducing electrolyte potassium chloride.¹⁰ Following a 2010 nationwide shortage of the first and second drugs,¹¹ a number of states have altered their protocols. Seven states have used single-drug protocols in their executions,¹² with another five announcing that they could use such protocols in the future.¹³ Moreover, 13 states have indicated that sodium thiopental could be replaced by pentobarbital.¹⁴ Noting that the lethal injection’s constitutionality was not considered by Court until three decades after its inception¹⁵ (in Baze),¹⁶ it is perhaps unlikely that the revised protocols will receive lip service from the high court any time in the near future.

Although the most prevalent contemporary means of execution is the lethal injection, other methods were more frequently used throughout the last century. Death by hanging was the method of choice of sentencers from the foundation of the Union¹⁷ to the early 20th Century, when a more publicly appeasing mode was sought. This change was introduced after numerous botched hangings,¹⁸ giving rise to the observation that it was the public’s perception of decency that drove this change. Electrocution, first introduced to the U.S. in 1886,¹⁹ became the primary method as hangings declined, with the gas chamber making relatively few appearances from its introduction in 1921²⁰ to the most recent execution by this method in 1999.²¹ Only 11²² executions have been carried out by lethal gas in the modern era.²³ While seldom used, a small number of state statutes still provide for hanging,²⁴ firing squad²⁵ and gas chamber²⁶ as forms of capital punishment. These provisions hide in dormant statutes – those which have not been invoked for a number of years – and include caveats, such as in Oklahoma where lethal injection and electrocution would have to be deemed unconstitutional before firing squad could be used.²⁷ The Supreme Court has expressly upheld both the firing squad and electric chair as constitutional methods of execution,²⁸ with the latter remaining on the books of seven states.²⁹ While the Court has never deemed a method of capital punishment as per se unconstitutional, due regard must be given to the fact that it has heavily involved itself in regulating the capital sentencing process itself. While a change that has occurred outside the courts, this shift towards a "more humane" method of punishment is the initial change in capital punishment which has led to its demise. Since the inception of the lethal injection as the principal method, executions have become increasingly seldom, with only 39 executions in 2013, down from 98 in 1999.³⁰

The Eighth Amendment was first applied to state sentencers in 1962, through the case of Robinson v California.³¹ Justice Roberts delivered a 7-2 judgment, relying on ‘contemporary human knowledge’³² to condemn a California statute which criminalised narcotics addiction as cruel and unusual punishment.³³ In referring to contemporary standards, Justice Roberts invoked evolutive interpretation, without direct reference to the evolving standards test demonstrating that evolutive interpretation is applied to Eighth Amendment jurisprudence beyond the borders of the core cases of Trop and Weems. This approach to constitutional interpretation, one which is built upon the foundation of living constitutionalism, has been followed by numerous Justices. Whether intentionally or not, the evolving standards of decency test has paved the way for a number of constitutional caveats to the Eighth Amendment, which will next be outlined.

Crimes Punishable by Death

While a marked decrease in the use of capital punishment is strongly linked to both the shortage in lethal injection drugs and a backlog of revisions to state legislation, the ultimate sanction has also been explicitly waned by the judiciary. Only 80 death sentences were handed down in 2013, down from 315 in 1996. Two areas have experienced evolution, leading to this reduction: the crimes for which capital punishment is constitutionally permissible and the classes of offenders for which the death penalty is available. The former will be considered first.

While death has been available as a punishment since the dawn of penal codes themselves,³⁴ the notion of humane punishment is a more recent innovation. The Framers of the U.S. Constitution transplanted this notion of proportionality almost verbatim from the English Bill of Rights,³⁵ but did not bring with them the same number of available capital sentences as provided for in England, where around 200 crimes were classed as "capital", triggering the death penalty.³⁶ In comparison, between 10 and 18 crimes were made capital in the American colonies.³⁷ Early statutes providing for death sentences in the colonies included offences such as ‘treason, piracy, arson, rape, robbery, burglary, and sodomy’.³⁸ During the 19th Century the situation developed in the United States, with a notable decrease in the range of capital crimes.³⁹ By 1925, only 18 states in the U.S. authorised capital punishment for adult rape,⁴⁰ and this very gradually reduced to just 16 by 1970. Moreover, the notion of proportionality has remained an important Eighth Amendment principle since the early 20th Century,⁴¹ but it was not until 1977 that the Court first struck down the death penalty as disproportionate in response to a particular crime, thus evolving the position even further, at a federal level.⁴² It is noteworthy that the number of crimes punishable by death decreased even more significantly in Great Britain, leading to total abolition in 1965,⁴³ while remaining relatively stable in the U.S. despite fluctuations due to bench changes, de facto abolitions, and restrictions on the penalty’s imposition.

In 1977 the Court developed another bipartite test inCoker v Georgia,⁴⁴ comprising an objective determination of the current national consensus and a subjective analysis of proportionality of capital punishment to a given crime, here the rape of an adult where death does not result.⁴⁵ Under those analyses, the Court condemned death as an unconstitutional punishment for the non-homicidal rape of an adult.⁴⁶ Justice White’s majority judgment was confined to cases in which death did not result, and left the position of child rape and felony murder untouched. Half a decade later the Coker position was evolved to incorporate a restriction on capital punishment for felony murderers in Enmund v Florida.⁴⁷ Forging the objective and subjective elements of the evolving standards test into one, the Court focused on the defendant’s ‘moral responsibility’⁴⁸ through his intent. While Justice White’s majority judgment in Enmund failed to furnish a clear definition of this standard, his concurrence in Lockett v Ohio provides interpretive assistance.⁴⁹ In Lockett Justice White noted that recklessness would be an insufficient demonstration of the moral responsibility deserving of capital punishment. In Enmund the defendant had acted as a driver for two accomplices who murdered two 74 and 86 year-old Floridians in the course of a residential robbery, an insufficient showing of responsibility in Justice White’s view. Despite no homicidal pre-meditation on his part, Enmund was nonetheless convicted of two counts of first-degree murder and sentenced to death.⁵⁰ Undertaking a review of state legislation and jury verdicts to find an evolving standard of decency against this practice,⁵¹ the Court overturned his sentence and barred death sentences for defendants who did not themselves kill or intend to kill.⁵²

On its face Enmund could be viewed as imposing a de facto ban on the death penalty for all non-homicide offences, but this position was not explicit and remained unclear.⁵³ It was not for two more decades that child rapists, for example, would be excluded from death row. The Court held in Kennedy that the sentence of death was, as with felony murder and adult rape, an unconstitutionally excessive penalty, thus undertaking a significant evolution in this sphere of Eighth Amendment jurisprudence. The Court had evolved the residual uncertainty from Enmund into a per se exclusion of capital punishment for any non-homicide offences for the first time. While undoubtedly an important case, the Court’s reasoning has been criticised as an ill-founded demonstration of a dubious ‘consensus’.⁵⁴ Others have commended the ruling, however, with one author noting that that the most important aspect of Kennedy may stem from the hypothesis of the dissenting opinion;⁵⁵ that a renewed cross-state consensus could begin to develop.⁵⁶ Should this prove true, ‘it could provide states with a strategy to … overturn prior limitations on the death penalty,’⁵⁷ rather than continue on a route of ‘unidirectional evolution’.⁵⁸ This direction of development is unprecedented, with the Supreme Court having only ever evolved the Eighth Amendment to become more ‘enlightened’ by humane justice and, as such, more restrictive. The only way in which the Supreme Court has reviewed its own innovations in this area is through an expansion of evolution; never has the Court engaged in a revocation of prior evolution, thereby expanding the use of the death penalty.

For the purpose of this section it can be concluded that, while Kennedy symbolises a degree of finality with regard to Eighth Amendment evolution of capital crimes to a near vanishing-point - with all non-homicide convictions now exempted from the death penalty – the prospect of ‘backwards evolution’ or ‘devolution’⁵⁹ has received some degree of lip service, albeit only in the dissenting ranks. What is certain is that a significant evolution has taken place, from a range of capital crimes to simply aggravated murder.⁶⁰

Beyond crimes punishable by death the Court has also engaged in evolutive interpretation of the Eighth Amendment when assessing which classes of offenders are protected against capital punishment. Over varying timescales the Court has evolved the punishments clause to protect juvenile offenders and those affected by intellectual disabilities from execution by the state, each time engaging evolving standards methodology.

Classes of Death-Eligible Offender

The next sphere of jurisprudential evolution to be considered is the applicability of the death penalty to different classes of offender. This section will evaluate youth and mental capacity as relevant factors when determining the constitutional permissibility of a punishment under the Eighth Amendment. Once again it will be argued that the Court has evolved the death penalty by leading its application towards a vanishing-point.

Youth was declared a valid mitigating factor by the Supreme Court in Bell v Ohio⁶¹ and Lockett v Ohio,⁶² handed down on the same day in 1978.⁶³ The Court began to adapt its understanding of the relevance of youth to proportionate punishment in Eddings v Oklahoma,⁶⁴ where Justice Powell famously declared that ‘youth is more than a chronological fact’,⁶⁵ a statement which has since been cited by the Court in the principal youth-related Eighth Amendment cases.⁶⁶ One judgment citing Justice Powell was Thompson v Oklahoma,⁶⁷ delivered one decade after the importance of youth had been avowed in both Bell and Eddings. Undertaking an evolution of the Eighth Amendment, the Justice Stevens-led majority declared that ‘it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense’⁶⁸ and declared the death penalty unconstitutional in those circumstances. The Court was next presented with an opportunity to refine the juvenile death penalty in 1989.⁶⁹

In the Court’s opinion the Eighth Amendment had not evolved to exclude under 18 from death row, as no national consensus was evidenced against its application.⁷⁰ Concurring, Justice O’Connor submitted that ‘the day may come’⁷¹ when legislative consensus does in fact bar the juvenile death penalty under the evolving standards test. Faltersack and Frank both assert that the Court failed to conduct a proportionality analysis in this decision,⁷² and it is notable that Justice Scalia’s counting method raised the concerns of the dissentients.⁷³ Justice Brennan’s dissent hypothesised ‘a conservative estimate of the dividing line between adolescence and adulthood’⁷⁴ as 20, suggesting that age as an appropriate minimum for the penalty. The next step for Eighth Amendment jurisprudence is more accurately described as a ‘giant leap’, wherein the Court undertook a dramatic evolution against the holding in Stanford. Realising Justice O’Connor’s prophecy,⁷⁵ though she herself dissented, a 5-4 majority in Roper v Simmons found a national consensus against the execution of all juveniles. In holding unconstitutional a Missourian death penalty statute which provided for the execution of offenders aged under-18 at the time of the offence, the Court deemed all capital sentences for such offenders per se unconstitutional.⁷⁶ This significant leap in evolutive jurisprudence has been described as ‘an extremely important decision’,⁷⁷ hailed for finally enabling evolving standards ‘to join the civilized world’.⁷⁸ What becomes clear once again is that the death penalty has been further narrowed, now excluding juveniles from its reach.

In the same period that Thompson and Stanford were held the Court granted certiorari in two important Eighth Amendment claims in another area of Eighth Amendment jurisprudence which has experienced evolutive change, the mental state of capital defendants. It had long been accepted at common law that insanity precluded an offender from execution, with Supreme Court decisions in 1897⁷⁹ and 1948⁸⁰ upholding this principle. The Supreme Court visited this issue again in 1986 through Ford v Wainwright,⁸¹ declaring explicitly for the first time that the Eighth Amendment prohibited the execution of defendants with severe mental disorders. The holding was cast aside as merely re-emphasising the common law defence of insanity, in line with the national consensus among the states.⁸² This begs the question of how practically significant the holding itself was, if only reaffirming the common law. Loveland postulates that Ford acted as a ‘constitutional restraint’⁸³ on future attempts by states to opt out of this consensus.

Regardless of any hypothesised constitutional impact of the case, its prohibition did not extend to individuals with ‘intellectual disabilities’.⁸⁴ One commentator doubted any expansion to such defendants, remarking that it was ‘unlikely that the Court would make an unpopular rule even more controversial by expanding its application to accommodate other mental disabilities’.⁸⁵ This prediction proved accurate in Penry v Lynaugh,⁸⁶ where the majority decided that, with only two state legislatures prohibiting such punishment and only 14 rejecting the death penalty entirely, an insufficient demonstration of an evolving national consensus had been made.

The rule in Ford was to be evolved even further, at an even faster rate than was demonstrated by Roper.⁸⁷ Atkins v Virginia,⁸⁸ handed down in 2002, was to step off this path of conservatism.⁸⁹ Justice Stevens’ majority prohibited the execution of individuals with intellectual disabilities, after finding a national consensus against its imposition on such offenders.⁹⁰ The ruling, while welcomed,⁹¹ did not escape criticism.⁹² One thing was indisputable; the decision markedly evolved the Eighth Amendment protections of mentally impaired defendants, casting the Eighth Amendment net further while tightening its grip.

The Unsatisfactorily Answered Question of Racial Bias

One sphere of death penalty jurisprudence which has yet to experience the same application of the Eighth Amendment is the issue of racial bias in capital sentencing. One scholar jibed:

Though hyperbolic to a certain degree, the message is stern. Race plays a large role in the probability of a sentence of death, ‘throw[ing] into serious question the principles that underlie our entire criminal justice system’,⁹⁴ that ‘arbitrary and capricious punishment is the touchstone under the Eighth Amendment’.⁹⁵ This extract from the majority opinion in McCleskey v Kemp ‘capture[s] the twisted radical soul of American criminal justice.’⁹⁶ The rise of African-American overrepresentation in prison (and on death row) is termed ‘The New Jim Crow’⁹⁷ by Michelle Alexander, who condemns the current criminal justice system in America for instituting a new caste system.⁹⁸ Writing for the Court in McCleskey, Justice Powell accepted that ‘the criminal justice system was probably inherently racist,’⁹⁹ but denied McCleskey Eighth Amendment protection until deliberate bias could be proven,¹⁰⁰ forgoing a valuable opportunity to address underlying defects of the system. This is an area of law which warrants a far deeper investigation and further study is intended by the author.

Explaining the Court’s Curtailment of the Death Penalty

Given the Supreme Court’s judicial activism through engagement of the evolving standards test, it is plain to see that the American death penalty is a method of penology perhaps better suited to the 20th Century than it is today. Without entering into moral or philosophical discussions surrounding goals of punishment,¹⁰¹ or the concept of ‘societal’ values, this out-dated method of punishment has undoubtedly been curtailed. Though the author hesitates to delve too deeply into hypotheses surrounding the Court’s reasons for this curtailment, two main rationales are presented in order to frame future discussion, each of which will briefly be discussed.

The first reason and one very much relevant to the decision in Furman is that of just-application. The question of whether death should be imposed (morally) is very different to the question of whether it can be imposed (justly).¹⁰² If it is accepted that death may well be imposable under the justifications of constitutionality, history, religion, and deterrence,¹⁰³ the issue of its just application remains unsolved. This issue, the author submits, is one reason why the Court has restricted the application of capital punishment. A majority of the Justices may well be willing to allow the death penalty to continue but, as demonstrated by the cases analysed within this paper, they are perhaps unwilling to risk its imposition in all but the most severe and most certain cases. Without a strong, certain and stable ground on which to base justification for its imposition, the Court cannot allow unfettered application of this extreme sentence. Under a retributivist approach only certainty should evoke a lethal response,¹⁰⁴ but certainty is elusive. DNA provides as close to certainty as is currently possible, but even that is fallible.¹⁰⁵ As such, the Court has adopted a restriction in order to, inter alia, ensure the ultimate sanction is delivered only in the most restricted of instances, and to ensure individualised sentencing.¹⁰⁶

The second explanation for this advancement put forward by the author is that of genuine, measurable ‘evolution’ of decency. While it is, in the author’s opinion, extremely difficult to pin-down a concept of ‘societal decency’, due to, inter alia, methodological concerns surrounding consensus-counting¹⁰⁷ and the relevance of international perspectives in constitutional interpretation,¹⁰⁸ the Court’s narrowing of capital punishment could in fact represent a genuine trend towards a less punitive society, thus an evolved punishment clause. Contradictions to this explanation arise from the onset of ‘penal populism’¹⁰⁹ and public opinion polls which lend support to capital punishment,¹¹⁰ though the reliability and validity of these measures are also matters of controversy.¹¹¹ Societal decency may well exist as an abstract theory, but establishing, measuring and tracing it for constitutional purposes is more of an art than a science, and one which has not yet been mastered by the Court.

As well as these explanations, a more practical constraint on the death penalty must also be noted: that of lethal injection drug shortages.¹¹² Since this issue is beyond the purview of the Court itself and is explicitly a correctional and legislative concern, comment will be reserved for future discussion.¹¹³

Conclusion

The continued application of capital punishment in the United States is a well-documented phenomenon. Moral outrage surrounds its persistent existence and vast media coverage follows in the wake of any execution. Its use is, however, waning. This article has shown that, coupled with a lethal injection drug-shortage and other legislative rationales, the Supreme Court's use of evolving standards theory has gradually constrained the constitutionality of this punishment from a judicial standpoint. With the death penalty prohibited by the Constitution for crimes less than aggravated murder, and restricted to intellectually able offenders aged over 18 at the time of their offence, the ultimate sanction has significantly waned under the evolving standards test. For better or worse, the death penalty is heading towards a vanishing point in the United States, with the Court's activism playing a significant role.