The Eighth Amendment prohibits “cruel and unusual” punishments. It is possible to argue that the death penalty is neither.
The death penalty is, at least in theory, reserved for the people who commit the worst crimes. These are people who have inflicted terrible pain on their victims in the process of killing them. In such circumstances, it is relatively easy to argue that executing a person is not particularly cruel. The modern death penalty is typically conducted in a way that is fairly humane. This is in contrast to the way in which the killer murdered their victims. Since many Americans still feel that “an eye for an eye” is not a bad rule of thumb, a relatively humane killing is not cruel for someone who has killed inhumanely.
The death penalty is also arguably not “unusual.” In the United States, more than 30 people have been executed in every year since 1991 and the number is often much higher. This implies that capital punishment is not exactly unusual. Of course, as with “cruel,” there is no official definition of this term.
Thus, it is possible to argue that the death penalty is neither cruel nor unusual and therefore should not be banned under this amendment.
The United States Supreme Court developed most of the current constitutional law regarding the death penalty and the Eighth Amendment's prohibition of "cruel and unusual punishment" during a series of cases in the 1970's:
- Furman vs. Georgia (1972): In Furman, the U.S. Supreme Court, ruled that capital punishment laws giving wide discretion to when the death penalty would be applied where inherently "arbitrary and capricious" and thus violated the 8th Amendment prohibition against cruel and unusual punishment. This decision essentially struck down all federal and state punishment laws at that time.
- Woodson v. North Carolina (1976) and Roberts v. Louisiana, (1976): These related cases established that capital punishment laws utilizing mandatory death sentences for certain crimes was also unconstitutional.
- Coker v. Georgia (1977): In Coker, the Supreme Court ruled that utilizing the death penalty as punishment for rape (when the victim is not killed) is disproportionate to the crime committed and thus is cruel and unusual punishment.
- Lockett v. Ohio (1978), Bell v. Ohio (1978), and Green v. Georgia (1979): These related cases established the general principle that courts considering a penalty of death for a convicted defendant must consider nearly any and all presented mitigating factors. Defendants may not be restricted to only presenting certain pre-defined mitigating factors. Furthermore, rules of evidence, or other court rules, generally may not be used to restrict a defendant's right to present mitigating factors when a court is considering a death sentence.
These cases define the general limitations on state and federal government utilization of the death penalty in the United States. As of January 1, 2013, 33 U.S. states allow for the utilization death penalty per state statute.