Eighth Amendment--Further Guarantees in Criminal Cases |
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EIGHTH AMENDMENT
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FURTHER GUARANTEES IN CRIMINAL CASES
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CONTENTS
Page
Excessive Bail............................................ 1467
Excessive Fines........................................... 1471
Cruel and Unusual Punishments............................. 1472
Style of Interpretation................................... 1472
``Cruel and Unusual Punishments''......................... 1473
Capital Punishment........................................ 1474
Proportionality........................................... 1493
Prisons and Punishment.................................... 1497
Limitation of Clause to Criminal Punishment............... 1499
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EIGHTH AMENDMENT
FURTHER GUARANTEES IN CRIMINAL CASES
__________
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
EXCESSIVE BAIL
``This traditional right to freedom before conviction permits
the unhampered preparation of a defense, and serves to prevent the
infliction of punishment prior to conviction. . . . Unless this right to
bail before trial is preserved, the presumption of innocence, secured
only after centuries of struggle, would lose its meaning.''\1\ ``The
bail clause was lifted with slight changes from the English Bill of
Rights Act. In England that clause has never been thought to accord a
right to bail in all cases, but merely to provide that bail shall not be
excessive in those cases where it is proper to grant bail. When this
clause was carried over into our Bill of Rights, nothing was said that
indicated any different concept.''\2\ These two contrasting views of the
``excessive bail'' provision, uttered by the Court in the same Term,
reflect the ambiguity inherent in the phrase and the absence of evidence
regarding the intent of those who drafted and who ratified the Eighth
Amendment.\3\
\1\Stack v. Boyle, 342 U.S. 1, 4 (1951). Note that in Bell v.
Wolfish, 441 U.S. 520, 533 (1979), the Court enunciated a narrower view
of the presumption of innocence, describing it as ``a doctrine that
allocates the burden of proof in criminal trials,'' and denying that it
has any ``application to a determination of the rights of a pretrial
detainee during confinement before his trial has even begun.''
\2\Carlson v. Landon, 342 U.S. 524, 545 (1952). Justice Black in
dissent accused the Court of reducing the provision ``below the level of
a pious admonition'' by saying in effect that ``the Amendment does no
more than protect a right to bail which Congress can grant and which
Congress can take away.'' Id. at 556.
\3\The only recorded comment of a Member of Congress during
debate on adoption of the ``excessive bail'' provision was that of Mr.
Livermore. ``The clause seems to express a great deal of humanity, on
which account I have no objection to it; but as it seems to have no
meaning in it, I do not think it necessary. What is meant by the terms
excessive bail? Who are to be judges?'' 1 Annals of Congress 754 (1789).
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Crucial to understanding why the ambiguity exists if not to its
resolution is knowledge of the history of the bail controversy in
England.\4\ The Statute of Westminster the First of 1275 \5\ set forth a
detailed enumeration of those offenses which were bailable and
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those which were not, and, though supplemented by later statutes, it
served for something like five-and-a-half centuries as the basic
authority.\6\ Darnel's Case,\7\ in which the judges permitted the
continued imprisonment of persons merely upon the order of the King,
without bail, was one of the moving factors in the enactment of the
Petition of Right in 1628;\8\ the Petition cited Magna Carta as
proscribing detention of persons as permitted in Darnel's Case. The
right to bail was again subverted a half-century later\9\ by various
technical subterfuges by which petitions for habeas corpus could not be
presented, and Parliament reacted by enacting the Habeas Corpus Act of
1679,\10\ which established procedures for effectuating release from
imprisonment and provided penalties for judges who did not comply with
the Act. That avenue closed, the judges then set bail so high it could
not be met, and Parliament responded by including in the Bill of Rights
of 1689 \11\ a provision ``[t]hat excessive bail ought not to be
required.'' This language, along with essentially the rest of the
present Eighth Amendment, was included within the Virginia Declaration
of Rights,\12\ was picked up in the Virginia recommendations for
inclusion in a federal bill of rights by the state ratifying
convention,\13\ and was introduced verbatim by Madison in the House of
Representatives.\14\
\4\Still the best and most comprehensive treatment is Foote, The
Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 965-89
(1965), reprinted in C. Foote, Studies on Bail 181, 187-211 (1966).
\5\3 Edw. 1, ch. 12.
\6\1 J. Stephen, A History of the Criminal Law of England
(London: 1883), 233-43. The statute is summarized at pp. 234-35.
\7\3 How. St. Tr. 1 (1627).
\8\3 Charles 1, ch. 1. Debate on the Petition, as precipitated
by Darnel's Case, is reported in 3 How. St. Tr. 59 (1628). Coke
especially tied the requirement that imprisonment be pursuant to a
lawful cause reportable on habeas corpus to effectuation of the right to
bail. Id. at 69.
\9\Jenkes' Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676).
\10\31 Charles 2, ch. 2. The text is in 2 Documents on
Fundamental Human Rights 327-340 (Z. Chafee ed., 1951).
\11\I W. & M. 2, ch. 2, clause 10.
\12\7 F. Thorpe, The Federal and State Constitutions, H. R. Doc.
No. 357, 59th Cong., 2d Sess. 3813 (1909). ``Sec. 9. That excessive bail
ought not to be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.''
\13\3 J. Elliot, The Debates in the Several State Conventions on
the Adoption of the Constitution 658 (2d ed. 1836).
\14\1 Annals of Congress 438 (1789).
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Thus, in England the right to bail generally was conferred by
the basic 1275 statute, as supplemented, the procedure for assuring
access to the right was conferred by the Habeas Corpus Act of 1679, and
protection against abridgement through the fixing of an excessive bail
was conferred by the Bill of Right of 1689. Habeas corpus was here
protected in Article I, Sec. 9, of the Constitution and the question is,
therefore, whether the First Congress knowingly or inadvertently
provided only against abridgement of a right which they did not confer
or protect in itself or whether the phrase ``ex
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cessive bail'' was meant to be a shorthand expression of both rights.
Compounding the ambiguity is a distinctive trend in the United
States which had its origin in a provision of the Massachusetts Body of
Liberties of 1641,\15\ guaranteeing bail to every accused person except
those charged with a capital crime or contempt in open court. Copied in
several state constitutions,\16\ this guarantee was contained in the
Northwest Ordinance in 1787,\17\ along with a guarantee of moderate
fines and against cruel and unusual punishments, and was inserted in the
Judiciary Act of 1789,\18\ enacted contemporaneously with the passage
through Congress of the Bill of Rights. It appears, therefore, that
Congress was aware in 1789 that certain language conveyed a right to
bail and that certain other language merely protected against one means
by which a pre-existing right to bail could be abridged.
\15\``No mans person shall be restrained or imprisoned by any
Authority what so ever, before the law hath sentenced him thereto, If he
can put in sufficient securtie, bayle, or mainprise, for his appearance,
and good behavior in the meane time, unlesse it be in Crimes Capitall,
and Contempts in open Court, and in such cases where some expresse act
of Court doth allow it.'' Reprinted in 1 Documents on Fundamental Human
Rights 79, 82 (Z. Chafee ed., 1951).
\16\``That all prisoners shall be bailable by sufficient
sureties, unless for capital offences, where the proof is evident, or
the presumption great.'' 5 F. Thorpe, The Federal and State
Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. 3061 (1909)
(Pennsylvania, 1682). The 1776 Pennsylvania constitution contained the
same clause in section 28, and in section 29 was a clause guaranteeing
against excessive bail. Id. at 3089.
\17\``All persons shall be bailable, unless for capital
offences, where the proof shall be evident, or the presumption great.
All fines shall be moderate; and no cruel or unusual punishments shall
be inflicted.'' Art. II, 32 Journals of the Continental Congress 334
(1787), reprinted in 1 Stat. 50 n.
\18\``And upon all arrests in criminal cases, bail shall be
admitted, except where the punishment may be death, in which case it
shall not be admitted but by the supreme or a circuit court, or by a
justice of the supreme court, or a judge of a district court, who shall
exercise their discretion herein. . . .'' 1 Stat. 91 Sec. 33 (1789).
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Long unresolved was the issue of whether ``preventive
detention''--the denial of bail to an accused, unconvicted defendant
because it is feared or it is found probable that if released he will be
a danger to the community--is constitutionally permissible. Not until
1984 did Congress authorize preventive detention in federal criminal
proceedings.\19\
\19\Congress first provided for pretrial detention without bail
of certain persons and certain classes of persons in the District of
Columbia. D.C. Code, Sec. Sec. 23-1321 et seq., held constitutional in
United States v. Edwards, 430 A.2d 1321 (D.C. App. 1981), cert. denied,
455 U.S. 1022 (1982). The law applies only to persons charged with
violating statutes applicable exclusively in the District of Columbia,
United States v. Thompson, 452 F.2d 1333 (D.C. Cir. 1971), cert. denied,
405 U.S. 998 (1978), while in other federal courts, the Bail Reform Act
of 1966, as amended, applies. 80 Stat. 214, 18 U.S.C. Sec. Sec. 3141-56.
Amendments contained in the Bail Reform Act of 1984 added general
preventive detention authority. See 18 U.S.C. Sec. 3142(d) and (e).
Those amendments authorized pretrial detention for persons charged with
certain serious crimes (e.g., crimes of violence, capital crimes, and
crimes punishable by 10 or more years' imprisonment) if the court or
magistrate finds that no conditions will reasonably assure both the
appearance of the person and the safety of others. Detention can also be
ordered in other cases where there is a serious risk that the person
will flee or that the person will attempt to obstruct justice.
Preventive detention laws have also been adopted in some States. Parker
v. Roth, 202 Neb. 850, 278 N.W. 2d 106, cert. denied, 444 U.S. 920
(1979).
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The Court first tested and upheld under the Due Process Clause
of the Fourteenth Amendment a state statute providing for preventive
detention of juveniles.\20\ Then, in United States v. Salerno,\21\ the
Court upheld application of preventive detention provisions of the Bail
Reform Act of 1984 against facial challenge under the Eighth Amendment.
The function of bail, the Court explained, is limited neither to
preventing flight of the defendant prior to trial nor to safeguarding a
court's role in adjudicating guilt or innocence. ``[W]e reject the
proposition that the Eighth Amendment categorically prohibits the
government from pursuing other admittedly compelling interests through
regulation of pretrial release.''\22\ Instead, ``the only arguable
substantive limitation of the Bail Clause is that the government's
proposed conditions of release or detention not be `excessive' in light
of the perceived evil.''\23\ Detention pending trial of ``arrestees
charged with serious felonies who are found after an adversary hearing
to pose a threat to the safety of individuals or to the community which
no condition of release can dispel'' satisfies this requirement.\24\
\20\Schall v. Martin, 467 U.S. 253 (1984).
\21\481 U.S. 739 (1988).
\22\Id. at 753.
\23\Id. at 754.
\24\Id. at 755. The Court also ruled that there was no violation
of due process, the governmental objective being legitimate and there
being a number of procedural safeguards (detention applies only to
serious crimes, the arrestee is entitled to a prompt hearing, the length
of detention is limited, and detainees must be housed apart from
criminals).
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Bail is ``excessive'' in violation of the Eighth Amendment when
it is set at a figure higher than an amount reasonably calculated to
ensure the asserted governmental interest.\25\ If the only asserted
interest is to guarantee that the accused will stand trial and submit to
sentence if found guilty, then ``bail must be set by a court at a sum
designed to ensure that goal, and no more.''\26\ To challenge bail as
excessive, one must move for a reduction, and if that motion is denied
appeal to the Court of Appeals, and if unsuccessful then to the Supreme
Court Justice sitting for that circuit.\27\ The Amendment is apparently
inapplicable to postconviction release
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pending appeal but the practice has apparently been to grant such
releases.\28\
\25\Stack v. Boyle, 342 U.S. 1, 4-6 (1951).
\26\United States v. Salerno, 481 U.S. at 754.
\27\Id. at 6-7.
\28\Hudson v. Parker, 156 U.S. 277 (1895).
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EXCESSIVE FINES
For years the Supreme Court had little to say with reference to
excessive fines. In an early case, it held that it had no appellate
jurisdiction to revise the sentence of an inferior court, even though
the excessiveness of the fines was apparent on the face of the
record.\29\ In a dissent, Justice Brandeis once contended that the
denial of second-class mailing privileges to a newspaper on the basis of
its past conduct imposed additional mailing cost, a fine in effect,
which, since the costs grew indefinitely each day, was an unusual
punishment proscribed by this Amendment.\30\ The Court has elected to
deal with the issue of fines levied upon indigents, resulting in
imprisonment upon inability to pay, in terms of the equal protection
clause,\31\ thus obviating any necessity to develop the meaning of
``excessive fines'' as applied to the person sentenced. So too, the
Court has held the Clause inapplicable to civil jury awards of punitive
damages in cases between private parties, ``when the government neither
has prosecuted the action nor has any right to receive a share of the
damages awarded.''\32\ The Court based this conclusion on a review of
the history and purposes of the Excessive Fines Clause. At the time the
Eighth Amendment was adopted, the Court noted, ``the word `fine' was
understood to mean a payment to a sovereign as punishment for some
offense.''\33\ The Eighth Amendment itself, as were antecedents of the
Clause in the Virginia Declaration of Rights and in the English Bill of
Rights of 1689, ``clearly was adopted with the particular intent of
placing limits on the powers of the new government.''\34\ Therefore,
while leaving open the issues of whether the Clause has any
applicability to civil penalties or to qui tam actions, the Court
determined that ``the Excessive Fines Clause was intended to limit only
those fines directly imposed by, and payable to, the government.''\35\
\29\Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833).
\30\Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921).
\31\Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois,
399 U.S. 235 (1970).
\32\Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S.
257 (1989).
\33\Id. at 265.
\34\Id. at 266.
\35\Id. at 268.
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The meaning of the phrase as applied to the quantum of
punishment for any particular offense, independent of the offender's
ability to pay, still awaits litigation.
[[Page 1472]]
CRUEL AND UNUSUAL PUNISHMENTS
During congressional consideration of this provision one Member
objected to ``the import of [the words] being too indefinite'' and
another Member said: ``No cruel and unusual punishment is to be
inflicted; it is sometimes necessary to hang a man, villains often
deserve whipping, and perhaps having their ears cut off; but are we in
the future to be prevented from inflicting these punishments because
they are cruel? If a more lenient mode of correcting vice and deterring
others from the commission of it would be invented, it would be very
prudent in the Legislature to adopt it; but until we have some security
that this will be done, we ought not to be restrained from making
necessary laws by any declaration of this kind.''\36\ It is clear from
some of the complaints about the absence of a bill of rights including a
guarantee against cruel and unusual punishments in the ratifying
conventions that tortures and barbarous punishments were much on the
minds of the complainants,\37\ but the English history which led to the
inclusion of a predecessor provision in the Bill of Rights of 1689
indicates additional concern with arbitrary and disproportionate
punishments.\38\ Though few in number, the decisions of the Supreme
Court interpreting this guarantee have applied it in both senses.
\36\1 Annals of Congress 754 (1789).
\37\E.g., 2 J. Elliot, The Debates in the Several State
Conventions on the Adoption of the Constitution 111 (2d ed. 1836); 3 id.
at 447-52.
\38\See Granucci, ``Nor Cruel and Unusual Punishments
Inflicted'': The Original Meaning, 57 Calif. L. Rev. 839 (1969).
Disproportionality, in any event, was utilized by the Court in Weems v.
United States, 217 U.S. 349 (1910). It is not clear what, if anything,
the word ``unusual'' adds to the concept of ``cruelty'' (but see Furman
v. Georgia, 408 U.S. 238, 276 n.20 (1972) (Justice Brennan concurring)),
although it may have figured in Weems, 217 U.S. at 377, and in Trop v.
Dulles, 356 U.S. 86, 100 n. 32 (1958) (plurality opinion), and it did
figure in Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (``severe,
mandatory penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms throughout
our Nation's history'').
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Style of Interpretation.--At first, the Court was inclined to an
historical style on interpretation, determining whether or not a
punishment was ``cruel and unusual'' by looking to see if it or a
sufficiently similar variant was considered ``cruel and unusual'' in
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1789.\39\ But in Weems v. United States\40\ it was concluded that the
framers had not merely intended to bar the reinstitution of procedures
and techniques condemned in 1789, but had intended to prevent the
authorization of ``a coercive cruelty being exercised through other
forms of punishment.'' The Amendment therefore was of an ``expansive and
vital character''\41\ and, in the words of a later Court, ``must draw
its meaning from the evolving standards of decency that mark the
progress of a maturing society.''\42\ The proper approach to an
interpretation of this provision has been one of the major points of
difference among the Justices in the capital punishment cases.\43\
\39\Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136
U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368-72
(1910). On the present Court, Chief Justice Rehnquist subscribes to this
view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208
(dissenting)), and the views of Justices Scalia and Thomas appear to be
similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966-90 (1991)
(Justice Scalia announcing judgment of Court) (relying on original
understanding of Amendment and of English practice to argue that there
is no proportionality principle in non-capital cases); and Hudson v.
McMillian, 112 S. Ct. 995, 1010 (1992) (Justice Thomas dissenting)
(objecting to Court's extension of the Amendment ``beyond all bounds of
history and precedent'' in holding that ``significant injury'' need not
be established for sadistic and malicious beating of shackled prisoner
to constitute cruel and unusual punishment).
\40\217 U.S. 349 (1910).
\41\Id. at 376-77.
\42\Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality
opinion).
\43\See Radin, The Jurisprudence of Death: Evolving Standards
for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989
(1978).
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``Cruel and Unusual Punishments''.--``Difficulty would attend
the effort to define with exactness the extent of the constitutional
provision which provides that cruel and unusual punishments shall not be
inflicted; but it is safe to affirm that punishments of torture [such as
drawing and quartering, embowelling alive, beheading, public dissecting,
and burning alive], and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the Constitution.''\44\ In
thus upholding capital punishment inflicted by a firing squad, the Court
not only looked to traditional practices but examined the history of
executions in the territory concerned, the military practice, and
current writings on the death penalty.\45\ The Court next approved,
under the Fourteenth Amendment's due process clause rather than under
the Eighth Amendment, electrocution as a permissible method of
administering punishment.\46\ Many years later, a divided Court,
assuming the applicability of the Eighth Amendment to the States, held
that a second electrocution following a mechanical failure at
[[Page 1474]]
the first which injured but did not kill the condemned man did not
violate the proscription.\47\
\44\Wilkerson v. Utah, 99 U.S. 130, 135 (1878).
\45\Id. See also Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475,
479-80 (1867).
\46\In re Kemmler, 136 U.S. 436 (1890).
\47\Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).
Justice Frankfurter tested the issue by due process standards. Id. at
470 (concurring).
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Divestiture of the citizenship of a natural born citizen was
held in Trop v. Dulles,\48\ again by a divided Court, to be
constitutionally forbidden as a penalty more cruel and ``more primitive
than torture,'' inasmuch as it entailed statelessness or ``the total
destruction of the individual's status in organized society.'' ``The
question is whether [a] penalty subjects the individual to a fate
forbidden by the principle of civilized treatment guaranteed by the
Eighth Amendment.'' A punishment must be examined ``in light of the
basic prohibition against inhuman treatment,'' and the Amendment was
intended to preserve the ``basic concept . . . [of] the dignity of man''
by assuring that the power to impose punishment is ``exercised within
the limits of civilized standards.''\49\
\48\356 U.S. 86 (1958). Four Justices joined the plurality
opinion while Justice Brennan concurred on the ground that the requisite
relation between the severity of the penalty and legitimate purpose
under the war power was not apparent. Id. at 114. Four Justices
dissented, denying that denationalization was a punishment and arguing
that instead it was merely a means by which Congress regulated
discipline in the armed forces. Id. at 121, 124-27.
\49\Id. at 99-100.
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Capital Punishment.--In Trop, the majority refused to consider
``the death penalty as an index of the constitutional limit on
punishment. Whatever the arguments may be against capital punishment
. . . the death penalty has been employed throughout our history, and,
in a day when it is still widely accepted, it cannot be said to violate
the constitutional concept of cruelty.\50\ But a coalition of civil
rights and civil liberties organizations mounted a campaign against the
death penalty in the 1960s, and the Court eventually confronted the
issues involved. The answers were not, it is fair to say, consistent one
with another.
\50\Id. at 99. In Rudolph v. Alabama, 375 U.S. 889 (1963),
Justices Goldberg, Douglas, and Brennan, dissenting from a denial of
certiorari, argued that the Court should have heard the case to consider
whether the Constitution permitted the imposition of death ``on a
convicted rapist who has neither taken nor endangered human life,'' and
presented a line of argument questioning the general validity of the
death penalty under the Eighth Amendment.
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A series of cases testing the means by which the death penalty
was imposed\51\ culminated in what appeared to be a decisive rejec
[[Page 1475]]
tion of the attack in McGautha v. California.\52\ Nonetheless, the Court
then agreed to hear a series of cases directly raising the question of
the validity of capital punishment under the cruel and unusual
punishments clause, and, to considerable surprise, the Court held in
Furman v. Georgia\53\ that the death penalty, at least as administered,
did violate the Eighth Amendment. There was no unifying opinion of the
Court in Furman; the five Justices in the majority each approached the
matter from a different angle in a separate concurring opinion. Two
Justices concluded that the death penalty per se was ``cruel and
unusual'' because the imposition of capital punishment ``does not
comport with human dignity''\54\ or because it is ``morally
unacceptable'' and ``excessive.''\55\ One Justice concluded that because
death is a penalty inflicted on the poor and hapless defendant but not
the affluent and socially better defendant, it violates the implicit
requirement of equality of treatment found within the Eighth
Amendment.\56\ Two Justices concluded that capital punishment was both
``cruel'' and ``unusual'' because it was applied in an arbitrary,
``wanton,'' and ``freakish'' manner\57\ and so infrequently that it
served no justifying end.\58\
\51\E.g., Witherspoon v. Illinois, 391 U.S. 510 (1968)
(exclusion of death-scrupled jurors). See also Davis v. Georgia, 429
U.S. 122 (1976), and Adams v. Texas, 448 U.S. 38 (1980) (explicating
Witherspoon). The Eighth Amendment was the basis for grant of review in
Boykin v. Alabama, 395 U.S. 238 (1969) and Maxwell v. Bishop, 398 U.S.
262 (1970), but membership changes on the Court resulted in decisions on
other grounds.
\52\402 U.S. 183 (1971). McGautha was decided in the same
opinion with Crampton v. Ohio. McGautha raised the question whether
provision for imposition of the death penalty without legislative
guidance to the sentencing authority in the form of standards violated
the due process clause; Crampton raised the question whether due process
was violated when both the issue of guilt or innocence and the issue of
whether to impose the death penalty were determined in a unitary
proceeding. Justice Harlan for the Court held that standards were not
required because, ultimately, it was impossible to define with any
degree of specificity which defendant should live and which die; while
bifurcated proceedings might be desirable, they were not required by due
process.
\53\408 U.S. 238 (1972). The change in the Court's approach was
occasioned by the shift of Justices Stewart and White, who had voted
with the majority in McGautha.
\54\Id. at 257 (Justice Brennan).
\55\Id. at 314 (Justice Marshall).
\56\Id. at 240 (Justice Douglas).
\57\Id. at 306 (Justice Stewart).
\58\Id. at 310 (Justice White). The four dissenters, in four
separate opinions, argued with different emphases that the Constitution
itself recognized capital punishment in the Fifth and Fourteenth
Amendments, that the death penalty was not ``cruel and unusual'' when
the Eighth and Fourteenth Amendments were proposed and ratified, that
the Court was engaging in a legislative act to strike it down now, and
that even under modern standards it could not be considered ``cruel and
unusual.'' Id. at 375 (Chief Justice Burger), 405 (Justice Blackmun),
414 (Justice Powell), 465 (Justice Rehnquist). Each of the dissenters
joined each of the opinions of the others.
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Inasmuch as only two of the Furman Justices thought the death
penalty to be invalid in all circumstances, those who wished to
reinstate the penalty concentrated upon drafting statutes that would
correct the faults identified in the other three majority opin
[[Page 1476]]
ions.\59\ Enactment of death penalty statutes by 35 States following
Furman led to renewed litigation, but not to the elucidation one might
expect from a series of opinions.\60\ Instead, while the Court seemed
firmly on the path to the conclusion that only criminal acts that result
in the deliberate taking of human life may be punished by the state's
taking of human life,\61\ it chose several different paths in attempting
to delineate the acceptable procedural devices that must be instituted
in order that death may be constitutionally pronounced and carried out.
To summarize, the Court determined that the penalty of death for
deliberate murder is not per se cruel and unusual, but that mandatory
death statutes leaving the jury or trial judge no discretion to consider
the individual defendant and his crime are cruel and unusual, and that
standards and procedures may be established for the imposition of death
that would remove or mitigate the arbitrariness and irrationality found
so significant in Furman.\62\ Divisions among the Justices, however,
made it difficult to ascertain the form which permissible statutory
schemes may take.\63\
\59\Collectors of judicial ``put downs'' of colleagues should
note Justice Rehnquist's characterization of the many expressions of
faults in the system and their correction as ``glossolalial.'' Woodson
v. North Carolina, 428 U.S. 280, 317 (1976) (dissenting).
\60\Justice Frankfurter once wrote of the development of the law
through ``the process of litigating elucidation.'' International Ass'n
of Machinists v. Gonzales, 356 U.S. 617, 619 (1958). The Justices are
firm in declaring that the series of death penalty cases failed to
conform to this concept. See, e.g., Chief Justice Burger, Lockett v.
Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) (``The signals from
this Court have not . . . always been easy to decipher''); Justice
White, id. at 622 (``The Court has now completed its about-face since
Furman'') (concurring in result); and Justice Rehnquist, id. at 629
(dissenting) (``the Court has gone from pillar to post, with the result
that the sort of reasonable predictability upon which legislatures,
trial courts, and appellate courts must of necessity rely has been all
but completely sacrificed''), and id. at 632 (``I am frank to say that I
am uncertain whether today's opinion represents the seminal case in the
exposition by this Court of the Eighth and Fourteenth Amendments as they
apply to capital punishment, or whether instead it represents the third
false start in this direction within the past six years'').
\61\On crimes not involving the taking of life or the actual
commission of the killing by a defendant, see Coker v. Georgia, 433 U.S.
584 (1977) (rape); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder
committed by confederate). Those cases in which a large threat, though
uneventuated, to the lives of many may have been present, as in airplane
hijackings, may constitute an exception to the Court's narrowing of the
crimes for which capital punishment may be imposed. The federal
hijacking law, 49 U.S.C. Sec. 1472, imposes death only when death occurs
during commission of the hijacking. But the treason statute does not
require a death to occur and represents a situation in which great and
fatal danger might be presented. 18 U.S.C. Sec. 2381.
\62\Justices Brennan and Marshall adhered to the view that the
death penalty is per se unconstitutional. E.g., Coker v. Georgia, 433
U.S. 584, 600 (1977); Lockett v. Ohio, 438 U.S. 586, 619 (1978); Enmund
v. Florida, 458 U.S. 782, 801 (1982).
\63\A comprehensive evaluation of the multiple approaches
followed in Furman-era cases may be found in Radin, The Jurisprudence of
Death: Evolving Standards for the Cruel and Unusual Punishments Clause,
126 U. Pa. L. Rev. 989 (1978).
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[[Page 1477]]
Inasmuch as the three Justices in the majority in Furman who did
not altogether reject the death penalty thought the problems with the
system revolved about discriminatory and arbitrary imposition,\64\
legislatures turned to enactment of statutes that purported to do away
with these difficulties by, on the one hand, providing for automatic
imposition of the death penalty upon conviction for certain forms of
murder, or, more commonly, providing specified aggravating and
mitigating factors that the sentencing authority should consider in
imposing sentence, and establishing special procedures to follow in
capital cases. In five cases in 1976, the Court rejected automatic
sentencing but approved other statutes specifying factors for jury
consideration.\65\
\64\Thus, Justice Douglas thought the penalty had been applied
discriminatorily, Furman v. Georgia, 408 U.S. 238 (1972), Justice
Stewart thought it had been applied in an arbitrary, ``wanton,'' and
``freakish'' manner id. at 310, and Justice White thought it had been
applied so infrequently that it served no justifying end. Id. at 313.
\65\The principal opinion was in Gregg v. Georgia, 428 U.S. 153
(1976) (upholding statute providing for a bifurcated proceeding
separating the guilt and sentencing phases, requiring the jury to find
at least one of ten statutory aggravating factors before imposing death,
and providing for review of death sentences by the Georgia Supreme
Court). Statutes of two other States were similarly sustained, Proffitt
v. Florida, 428 U.S. 242 (1976) (statute generally similar to Georgia's,
with the exception that the trial judge, rather than jury, was directed
to weigh statutory aggravating factors against statutory mitigating
factors), and Jurek v. Texas, 428 U.S. 262 (1976) (statute construed as
narrowing death-eligible class, and lumping mitigating factors into
consideration of future dangerousness), while those of two other States
were invalidated, Woodson v. North Carolina, 428 U.S. 280 (1976), and
Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating death penalty
for first-degree murder).
---------------------------------------------------------------------------
First, the Court concluded that the death penalty as a
punishment for murder does not itself constitute cruel and unusual
punishment. While there were differences of degree among the seven
Justices in the majority on this point, they all seemed to concur in the
position that reenactment of capital punishment statutes by 35 States
precluded the Court from concluding that this form of penalty was no
longer acceptable to a majority of the American people; rather, they
concluded, a large proportion of American society continued to regard it
as an appropriate and necessary criminal sanction. Neither is it
possible, the Court continued, for it to decide that the death penalty
does not comport with the basic concept of human dignity at the core of
the Eighth Amendment. Courts are not free to substitute their own
judgments for the people and their elected representatives. A death
penalty statute, just as all other statutes, comes before the courts
bearing a presumption of validity which can only be overcome upon a
strong showing by those who attack its constitutionality. Whether in
fact the death penalty validly serves the permissible functions of
retribution and deterrence,
[[Page 1478]]
the judgments of the state legislatures are that it does, and those
judgments are entitled to deference. Therefore, the infliction of death
as a punishment for murder is not without justification and is not
unconstitutionally severe. Neither is the punishment of death
disproportionate to the crime being punished, murder.\66\
\66\Gregg v. Georgia, 428 U.S. 153, 168-87 (1976) (Justices
Stewart, Powell, and Stevens); Roberts v. Louisiana, 428 U.S. 325, 350-
56 (1976) (Justices White, Blackmun, Rehnquist, and Chief Justice
Burger). The views summarized in the text are those in the Stewart
opinion in Gregg. Justice White's opinion basically agrees with this
opinion in concluding that contemporary community sentiment accepts
capital punishment, but did not endorse the proportionality analysis.
Justice White's Furman dissent and those of Chief Justice Burger and
Justice Blackmun show a rejection of proportionality analysis. Justices
Brennan and Marshall dissented, reiterating their Furman views. Gregg,
supra, at 227, 231.
---------------------------------------------------------------------------
Second, a different majority, however, concluded that statutes
mandating the imposition of death for crimes classified as first-degree
murder violate the Eighth Amendment. In order to make its determination,
the plurality looked to history and traditional usage, to legislative
enactment, and to jury determinations. Because death is a unique
punishment, the sentencing process must provide an opportunity for
individual consideration of the character and record of each convicted
defendant and his crime along with mitigating and aggravating
circumstances.\67\
\67\Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v.
Louisiana, 428 U.S. 325 (1976). Justices Stewart, Powell, and Stevens
composed the plurality, and Justices Brennan and Marshall concurred on
the basis of their own views of the death penalty. 428 U.S. at 305, 306,
336.
---------------------------------------------------------------------------
Third, while the imposition of death is constitutional per se,
the procedure by which sentence is passed must be so structured as to
reduce arbitrariness and capriciousness as much as possible.\68\ What
emerged from the prevailing plurality opinion in these cases are
requirements (1) that the sentencing authority, jury or judge,\69\ be
given standards to govern its exercise of discretion and be given the
opportunity to evaluate both the circumstances of
[[Page 1479]]
the offense and the character and propensities of the accused;\70\ (2)
that to prevent jury prejudice on the issue of guilt there be a separate
proceeding after conviction at which evidence relevant to the sentence,
mitigating and aggravating, will be presented;\71\ (3) that special
forms of appellate review be provided not only of the conviction but
also of the sentence, to ascertain that the sentence was in fact fairly
imposed both on the facts of the individual case and by comparison with
the penalties imposed in similar cases.\72\ The Court later ruled,
however, that proportionality review is not constitutionally
required.\73\ Gregg, Proffitt, and Jurek did not require such
comparative proportionality review, the Court noted, but merely
suggested that proportionality review is one means by which a state may
``safeguard against arbitrarily imposed death sentences.''\74\
\68\Here adopted is the constitutional analysis of the Stewart
plurality of three. ``[T]he holding of the Court may be viewed as the
position taken by those Members who concurred in the judgments on the
narrowest grounds,'' Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976), a
comment directed to the Furman opinions but equally applicable to these
cases and to Lockett. See Marks v. United States, 430 U.S. 188, 192-94
(1977).
\69\The Stewart plurality noted its belief that jury sentencing
in capital cases performs an important societal function in maintaining
a link between contemporary community values and the penal system, but
agreed that sentencing may constitutionally be vested in the trial
judge. Gregg v. Georgia, 428 U.S. 153, 190 (1976). A definitive ruling
came in Spaziano v. Florida, 468 U.S. 447 (1984), upholding a provision
under which the judge can override a jury's advisory life imprisonment
sentence and impose the death sentence. ``[T]he purpose of the death
penalty is not frustrated by, or inconsistent with, a scheme in which
the imposition of the penalty in individual cases is determined by a
judge.'' Id. at 462-63.
\70\Gregg v. Georgia, 428 U.S. 153, 188-95 (1976). Justice White
seemed close to the plurality on the question of standards, id. at 207
(concurring), but while Chief Justice Burger and Justice Rehnquist
joined the White opinion ``agreeing'' that the system under review
``comports'' with Furman, Justice Rehnquist denied the constitutional
requirement of standards in any event. Woodson v. North Carolina, 428
U.S. 280, 319-21 (1976) (dissenting). In McGautha v. California, 402
U.S. 183, 207-08 (1971), the Court had rejected the argument that the
absence of standards violated the due process clause. On the vitiation
of McGautha, see Gregg, supra, at 195 n.47, and Lockett v. Ohio, 438
U.S. 586, 598-99 (1978). In assessing the character and record of the
defendant, the jury may be required to make a judgment about the
possibility of future dangerousness of the defendant, from psychiatric
and other evidence. Jurek v. Texas, 428 U.S. 262, 275-76 (1976).
Moreover, testimony of psychiatrists need not be based on examination of
the defendant; general responses to hypothetical questions may also be
admitted. Barefoot v. Estelle, 463 U.S. 880 (1983). But cf. Estelle v.
Smith, 451 U.S. 454 (1981) (holding self-incrimination and counsel
clauses applicable to psychiatric examination, at least when doctor
testifies about his conclusions with respect to future dangerousness).
\71\Gregg v. Georgia, 428 U.S. 153, 163, 190-92, 195 (1976)
(plurality opinion). McGautha v. California, 402 U.S. 183 (1971), had
rejected a due process requirement of bifurcated trials, and the Gregg
plurality did not expressly require it under the Eighth Amendment. But
the plurality's emphasis upon avoidance of arbitrary and capricious
sentencing by juries seems to look inevitably toward bifurcation. The
dissenters in Roberts v. Louisiana, 428 U.S. 325, 358 (1976), rejected
bifurcation and viewed the plurality as requiring it. All states with
post-Furman capital sentencing statutes took the cue by adopting
bifurcated capital sentencing procedures, and the Court has not been
faced with the issue again. See Raymond J. Pascucci, et al., Special
Project, Capital Punishment in 1984: Abandoning the Pursuit of Fairness
and Consistency, 69 Cornell L. Rev. 1129, 1224-25 (1984).
\72\Gregg v. Georgia, 428 U.S. 153, 195, 198 (1976) (plurality);
Proffitt v. Florida, 428 U.S. 242, 250-51, 253 (1976) (plurality); Jurek
v. Texas, 428 U.S. 262, 276 (1976) (plurality).
\73\Pulley v. Harris, 465 U.S. 37 (1984).
\74\Id. at 50.
---------------------------------------------------------------------------
Most states responded to the requirement that the sentencing
authority be given standards narrowing discretion to impose the death
penalty by enacting statutes spelling out ``aggravating'' circumstances
at least one of which must be found to be present before the death
penalty may be imposed. The standards must be rel
[[Page 1480]]
atively precise and instructive in providing guidance that minimizes the
risk of arbitrary and capricious action by the sentencer, the desired
result being a principled way to distinguish cases in which the death
penalty is imposed from other cases in which it is not. Thus, the Court
invalidated a capital sentence based upon a jury finding that the murder
was ``outrageously or wantonly vile, horrible, and inhuman,'' reasoning
that ``a person of ordinary sensibility could fairly [so] characterize
almost every murder.''\75\ Similarly, an ``especially heinous, atrocious
or cruel'' aggravating circumstance was held to be unconstitutionally
vague.\76\ The ``especially heinous, cruel or depraved'' standard is
cured, however, by a narrowing interpretation requiring a finding of
infliction of mental anguish or physical abuse before the victim's
death.\77\
\75\Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (plurality
opinion).
\76\Maynard v. Cartwright, 486 U.S. 356 (1988).
\77\Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis v.
Jeffers, 497 U.S. 764 (1990). See also Gregg v. Georgia, 428 U.S. 153,
201 (1976) (upholding full statutory circumstance of ``outrageously or
wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim''); Proffitt
v. Florida, 428 U.S. 242, 255 (1976) (upholding ``especially heinous,
atrocious or cruel'' aggravating circumstance as interpreted to include
only ``the conscienceless or pitiless crime which is unnecessarily
torturous to the victim''); Sochor v. Florida, 112 S. Ct. 2114 (1992)
(impermissible vagueness of ``heinousness'' factor cured by narrowing
interpretation including strangulation of a conscious victim).
---------------------------------------------------------------------------
The proscription against a mandatory death penalty has also
received elaboration. The Court invalidated statutes making death the
mandatory sentence for persons convicted of first-degree murder of a
police officer,\78\ and for prison inmates convicted of murder while
serving a life sentence without possibility of parole.\79\ On the other
hand, if actual sentencing authority is conferred on the trial judge, it
is not unconstitutional for a statute to require a jury to return a
death ``sentence'' upon convicting for specified crimes.\80\ Flaws
related to those attributed to mandatory sentencing statutes were found
in a state's structuring of its capital system to deny the jury the
option of convicting on a lesser included offense, when that would be
justified by the evidence.\81\ Because the jury had to
[[Page 1481]]
choose between conviction or acquittal, the statute created the risk
that the jury would convict because it felt the defendant deserved to be
punished or acquit because it believed death was too severe for the
particular crime, when at that stage the jury should concentrate on
determining whether the prosecution had proved defendant's guilt beyond
a reasonable doubt.\82\
\78\Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam)
(involving a different defendant than the first Roberts v. Louisiana
case, supra n.67).
\79\Sumner v. Shuman, 483 U.S. 66 (1987).
\80\Baldwin v. Alabama, 472 U.S. 372 (1985) (mandatory jury
death sentence saved by requirement that trial judge independently weigh
aggravating and mitigating factors and determine sentence).
\81\Beck v. Alabama, 447 U.S. 625 (1980). The statute made the
guilt determination ``depend . . . on the jury's feelings as to whether
or not the defendant deserves the death penalty, without giving the jury
any standards to guide its decision on this issue.'' Id. at 640. Cf.
Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity
is present, however, if failure to instruct on lesser included offenses
is due to the defendant's refusal to waive the statute of limitations
for those lesser offenses. Spaziano v. Florida, 468 U.S. 447 (1984). See
also Schad v. Arizona, 501 U.S. 624 (1991) (first-degree murder
defendant, who received instruction on lesser included offense of
second-degree murder, was not entitled to a jury instruction on the
lesser included offense of robbery). In Schad the Court also upheld
Arizona's characterization of first-degree murder as a single crime
encompassing two alternatives, premeditated murder and felony-murder,
and not requiring jury agreement on which alternative had occurred.
\82\Also impermissible as distorting a jury's role are
prosecutor's comments or jury instructions that mislead a jury as to its
primary responsibility for deciding whether to impose the death penalty.
Compare Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury's
responsibility is undermined by court-sanctioned remarks by prosecutor
that jury's decision is not final, but is subject to appellate review)
with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not
undermined by instruction that governor has power to reduce sentence of
life imprisonment without parole). See also Lowenfield v. Phelps, 484
U.S. 231 (1988) (poll of jury and supplemental jury instruction on
obligation to consult and attempt to reach a verdict was not unduly
coercive on death sentence issue, even though consequence of failing to
reach a verdict was automatic imposition of life sentence without
parole).
---------------------------------------------------------------------------
The overarching principle of Furman and of the Gregg series of
cases was that the jury should not be ``without guidance or direction''
in deciding whether a convicted defendant should live or die. The jury's
attention was statutorily ``directed to the specific circumstances of
the crime . . . and on the characteristics of the person who committed
the crime.''\83\ Discretion was channeled and rationalized. But in
Lockett v. Ohio,\84\ a Court plurality determined that a state law was
invalid because it prevented the sentencer from giving weight to any
mitigating factors other than those specified in the law. In other
words, the jury's discretion was curbed too much. ``[W]e conclude that
the Eighth and Fourteenth Amendments require that the sentencer, in all
but the rarest kind of capital case, not be precluded from considering
as a mitigating factor, any aspect of a defendant's character or record
and any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death.''\85\ Similarly, the reason
that a three-justice plurality viewed North Carolina's mandatory death
sentence for persons convicted of first degree murder as invalid was
that it failed ``to allow the particularized consideration of relevant
aspects
[[Page 1482]]
of the character and record of each convicted defendant.''\86\ Lockett
and Woodson have since been endorsed by a Court majority.\87\ Thus, a
great measure of discretion was again accorded the sentencing authority,
be it judge or jury, subject only to the consideration that the
legislature must prescribe aggravating factors.\88\
\83\Gregg v. Georgia, 428 U.S. 153, 197-98 (1976) (plurality).
\84\438 U.S. 586 (1978). The plurality opinion by Chief Justice
Burger was joined by Justices Stewart, Powell, and Stevens. Justices
Blackmun, Marshall, and White concurred in the result on separate and
conflicting grounds. Id. at 613, 619, 621. Justice Rehnquist dissented.
Id. at 628.
\85\438 U.S. at 604 (plurality).
\86\Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion
of Justice Stewart, joined by Justices Powell and Stevens). Accord,
Roberts v. Louisiana, 428 U.S. 325 (1976) (statute mandating death
penalty for five categories of homicide constituting first-degree
murder).
\87\Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (adopting
Lockett); Sumner v. Shuman, 483 U.S. 66 (1987) (adopting Woodson). The
majority in Eddings was composed of Justices Powell, Brennan, Marshall,
Stevens, and O'Connor; Chief Justice Burger and Justices White,
Blackmun, and Rehnquist dissented. The Shuman majority was composed of
Justices Blackmun, Brennan, Marshall, Powell, Stevens, and O'Connor;
dissenting were Justices White and Scalia and Chief Justice Rehnquist.
Woodson and the first Roberts v. Louisiana had earlier been followed in
the second Roberts v. Louisiana, 431 U.S. 633 (1977), a per curiam
opinion from which Chief Justice Burger, and Justices Blackmun, White,
and Rehnquist dissented.
\88\Justice White, dissenting in Lockett from the Court's
holding on consideration of mitigating factors, wrote that he ``greatly
fear[ed] that the effect of the Court's decision today will be to compel
constitutionally a restoration of the state of affairs at the time
Furman was decided, where the death penalty is imposed so erratically
and the threat of execution is so attenuated for even the most atrocious
murders that `its imposition would then be the pointless and needless
extinction of life with only marginal contributions to any discernible
social or public purposes.''' 438 U.S. at 623. More recently, Justice
Scalia voiced similar misgivings. ``Shortly after introducing our
doctrine requiring constraints on the sentencer's discretion to `impose'
the death penalty, the Court began developing a doctrine forbidding
constraints on the sentencer's discretion to `decline to impose' it.
This second doctrine--counterdoctrine would be a better word--has
completely exploded whatever coherence the notion of `guided discretion'
once had. . . . In short, the practice which in Furman had been
described as the discretion to sentence to death and pronounced
constitutionally prohibited, was in Woodson and Lockett renamed the
discretion not to sentence to death and pronounced constitutionally
required.'' Walton v. Arizona, 497 U.S. 639, 661-62 (1990) (concurring
in the judgment). For a critique of these criticisms of Lockett, see
Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and
Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147 (1991).
---------------------------------------------------------------------------
The Court has explained this apparent contradiction as
constituting recognition ``that `individual culpability is not always
measured by the category of crime committed,'''\89\ and as the product
of an attempt to pursue the ``twin objectives'' of ``measured,
consistent application'' of the death penalty and ``fairness to the
accused.''\90\ The requirement that aggravating circumstances be spelled
out by statute serves a narrowing purpose that helps consistency of
application; absence of restriction on mitigating evidence helps promote
fairness to the accused through an ``individualized'' consideration of
his circumstances. In the Court's words,
[[Page 1483]]
statutory aggravating circumstances ``play a constitutionally necessary
function at the stage of legislative definition [by] circumscrib[ing]
the class of persons eligible for the death penalty,''\91\ while
consideration of all mitigating evidence requires focus on ```the
character and record of the individual offender and the circumstances of
the particular offense''' consistent with ```the fundamental respect for
humanity underlying the Eighth Amendment.'''\92\ As long as the
defendant's crime falls within the statutorily narrowed class, the jury
may then conduct ``an individualized determination on the basis of the
character of the individual and the circumstances of the crime.''\93\
\89\Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality
opinion of Justices Stewart, Powell, and Stevens) (quoting Furman v.
Georgia, 408 U.S. 238, 402 (1972) (Chief Justice Burger dissenting)).
\90\Eddings v. Oklahoma, 455 U.S. 104, 110-11 (1982).
\91\Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing
function may be served at the sentencing phase or at the guilt phase;
the fact that an aggravating circumstance justifying capital punishment
duplicates an element of the offense of first-degree murder does not
render the procedure invalid. Lowenfield v. Phelps, 484 U.S. 231 (1988).
\92\Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting
Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality
opinion)).
\93\Zant v. Stephens, 462 U.S. 862, 879 (1983).
---------------------------------------------------------------------------
So far, the Justices who favor abandonment of the Lockett and
Woodson approach have not prevailed. The Court has, however, given
states greater leeway in fashioning procedural rules that have the
effect of controlling how juries may use mitigating evidence that must
be admitted and considered. States may also cure some constitutional
errors on appeal through operation of ``harmless error'' rules and
reweighing of evidence by the appellate court. Also, the Court has
constrained the use of federal habeas corpus to review state court
judgments. As a result of these trends, the Court recognizes a
significant degree of state autonomy in capital sentencing in spite of
its rulings on substantive Eighth Amendment law.
While holding fast to the Lockett requirement that sentencers be
allowed to consider all mitigating evidence,\94\ the Court has upheld
state statutes that control the relative weight that the sentencer may
accord to aggravating and mitigating evidence.\95\
[[Page 1484]]
``The requirement of individualized sentencing is satisfied by allowing
the jury to consider all relevant mitigating evidence''; there is no
additional requirement that the jury be allowed to weigh the severity of
an aggravating circumstance in the absence of any mitigating factor.\96\
So too, the legislature may specify the consequences of the jury's
finding an aggravating circumstance; it may mandate that a death
sentence be imposed if the jury unanimously finds at least one
aggravating circumstance and no mitigating circumstance,\97\ or if the
jury finds that aggravating circumstances outweigh mitigating
circumstances.\98\ And a court may instruct that the jury ``must not be
swayed by mere sentiment, conjecture, sympathy, passion, prejudice,
public opinion, or public feeling,'' since in essence the instruction
merely cautions the jury not to base its decision ``on factors not
presented at the trial.''\99\ However, a jury instruction that can be
interpreted as requiring jury unanimity on the existence of each
mitigating factor before that factor may be weighed against aggravating
factors is invalid as in effect allowing one juror to veto consideration
of any and all mitigating factors. Instead, each juror must be allowed
to give effect to what he or she believes to be established mitigating
evidence.\100\
\94\See, e.g., Hitchcock v. Dugger, 481 U.S. 393 (1987)
(instruction limiting jury to consideration of mitigating factors
specifically enumerated in statute is invalid); Penry v. Lynaugh, 492
U.S. 302 (1989) (jury must be permitted to give effect to defendant's
evidence of mental retardation and abused background); Skipper v. South
Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant's good
conduct in jail denied defendant his Lockett right to introduce all
mitigating evidence). But cf. Franklin v. Lynaugh, 487 U.S. 164 (1988)
(consideration of defendant's character as revealed by jail behavior may
be limited to context of assessment of future dangerousness).
\95\``Neither [Lockett nor Eddings] establishes the weight which
must be given to any particular mitigating evidence, or the manner in
which it must be considered; they simply condemn any procedure in which
such evidence has no weight at all.'' Barclay v. Florida, 463 U.S. 939,
961 n.2 (1983) (Justice Stevens concurring in judgment).
\96\Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990).
\97\Id.
\98\Boyde v. California, 494 U.S. 370 (1990).
\99\California v. Brown, 479 U.S. 538, 543 (1987).
\100\Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North
Carolina, 494 U.S. 433 (1990).
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Appellate review under a harmless error standard can preserve a
death sentence based in part on a jury's consideration of an aggravating
factor later found to be invalid,\101\ or on a trial judge's
consideration of improper aggravating circumstances.\102\ In each case
the sentencing authority had found other aggravating circumstances
justifying imposition of capital punishment, and in Zant evidence
relating to the invalid factor was nonetheless admissible on another
basis.\103\ Even in states that require the jury to weigh statutory
aggravating and mitigating circumstances (and even in the absence of
written findings by the jury), the appellate court may preserve a death
penalty through harmless error review or through a reweighing of the
aggravating and mitigating evi
[[Page 1485]]
dence.\104\ By contrast, where there is a possibility that the jury's
reliance on a ``totally irrelevant'' factor (defendant had served time
pursuant to an invalid conviction subsequently vacated) may have been
decisive in balancing aggravating and mitigating factors, a death
sentence may not stand in spite of the presence of other aggravating
factors.\105\
\101\Zant v. Stephens, 462 U.S. 862 (1983).
\102\Barclay v. Florida, 463 U.S. 954 (1983).
\103\In Eighth Amendment cases as in other contexts involving
harmless constitutional error, the court must find that error was
```harmless beyond a reasonable doubt in that it did not contribute to
the [sentence] obtained.''' Sochor v. Florida, 112 S. Ct. 2114, 2123
(1992) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
\104\Clemons v. Mississippi, 494 U.S. 738 (1990). Cf. Parker v.
Dugger, 498 U.S. 308 (1991) (affirmance of death sentence invalid
because appellate court did not reweigh non-statutory mitigating
evidence).
\105\Johnson v. Mississippi, 486 U.S. 578 (1988).
---------------------------------------------------------------------------
Focus on the character and culpability of the defendant led the
Court initially to hold that introduction of evidence about the
character of the victim or the amount of emotional distress caused to
the victim's family or community was inappropriate because it ``creates
an impermissible risk that the capital sentencing decision will be made
in an arbitrary manner.''\106\ New membership on the Court resulted in
overruling of these decisions, however, and a holding that ``victim
impact statements'' are not barred from evidence by the Eighth
Amendment.\107\ ``A State may legitimately conclude that evidence about
the victim and about the impact of the murder on the victim's family is
relevant to the jury's decision as to whether or not the death penalty
should be imposed.''\108\ In the view of the Court majority,
admissibility of victim impact evidence was necessary in order to
restore balance to capital sentencing. Exclusion of such evidence had
``unfairly weighted the scales in a capital trial; while virtually no
limits are placed on the rel
[[Page 1486]]
evant mitigating evidence a capital defendant may introduce concerning
his own circumstances, the State is barred from either offering `a
glimpse of the life' which a defendant `chose to extinguish,' or
demonstrating the loss to the victim's family and to society which have
resulted from the defendant's homicide.''\109\
\106\Booth v. Maryland, 482 U.S. 496, 503 (1987). And
culpability, the Court added, ``depends not on fortuitous circumstances
such as the composition [or articulateness] of [the] victim's family,
but on circumstances over which [the defendant] has control.'' Id. at
504 n.7. The decision was 5-4, with Justice Powell's opinion of the
Court being joined by Justices Brennan, Marshall, Blackmun, and Stevens,
and with Chief Justice Rehnquist and Justices White, O'Connor, and
Scalia dissenting. See also South Carolina v. Gathers, 490 U.S. 805
(1989), holding that a prosecutor's extensive comments extolling the
personal characteristics of a murder victim can invalidate a death
sentence when the victim's character is unrelated to the circumstances
of the crime.
\107\Payne v. Tennessee, 501 U.S. 808 (1991). ``In the event
that evidence is introduced that is so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of the
Fourteenth Amendment provides a mechanism for relief,'' Chief Justice
Rehnquist explained for the Court. Id. at 825. Justices White, O'Connor,
Scalia, Kennedy, and Souter joined in that opinion. Justices Marshall,
Blackmun, and Stevens dissented.
\108\Id. at 827. Overruling of Booth may have been unnecessary
in Payne, inasmuch as the principal ``victim impact'' evidence
introduced involved trauma to a surviving victim of attempted murder who
had been stabbed at the same time his mother and sister had been
murdered and who had apparently witnessed those murders; this evidence
could have qualified as ``admissible because . . . relate[d] directly to
the circumstances of the crime.'' Booth, 482 U.S. at 507 n.10. Gathers
was directly at issue in Payne because of the prosecutor's references to
effects on family members not present at the crime.
\109\Id. at 822 (citation omitted).
---------------------------------------------------------------------------
The Court's rulings limiting federal habeas corpus review of
state convictions may be expected to reduce significantly the amount of
federal court litigation over state imposition of capital punishment.
The Court held in Penry v. Lynaugh\110\ that its Teague v. Lane\111\
rule of nonretroactivity applies to capital sentencing challenges. Under
Teague, ``new rules'' of constitutional interpretation announced after a
defendant's conviction has become final will not be applied in habeas
cases unless one of two exceptions applies. The exceptions will rarely
apply. One exception is for decisions placing certain conduct or
defendants beyond the reach of the criminal law, and the other is for
decisions recognizing a fundamental procedural right ``without which the
likelihood of an accurate conviction is seriously diminished.''\112\
Further restricting the availability of federal habeas review is the
Court's definition of ``new rule.'' Interpretations that are a logical
outgrowth or application of an earlier rule are nonetheless ``new
rules'' unless the result was ``dictated'' by that precedent.\113\ While
in Penry itself the Court determined that the requested rule (requiring
an instruction that the jury consider mitigating evidence of the
defendant's mental retardation and abused childhood) was not a ``new
rule'' because it was dictated by Eddings and Lockett, in subsequent
habeas capital sentencing cases the Court has found substantive review
barred by the ``new rule'' limitation.\114\ A second restriction on
federal habeas
[[Page 1487]]
review also has ramifications for capital sentencing review. Claims that
state convictions are unsupported by the evidence are weighed by a
``rational factfinder'' inquiry: ``viewing the evidence in the light
most favorable to the prosecution, [could] any rational trier of fact
have found the essential elements of the crime beyond a reasonable
doubt.''\115\ This same standard for reviewing alleged errors of state
law, the Court determined, should be used by a federal habeas court to
weigh a claim that a generally valid aggravating factor is
unconstitutional as applied to the defendant.\116\ A third rule was
devised to prevent successive ``abusive'' or defaulted habeas petitions.
Federal courts are barred from hearing such claims unless the defendant
can show by clear and convincing evidence that, but for a constitutional
error, no reasonable juror would have found him eligible for the death
penalty under applicable state law.\117\ The Court has also ruled that a
death row inmate has no constitutional right to an attorney to help
prepare a petition for state collateral review.\118\
\110\492 U.S. 302 (1989).
\111\489 U.S. 288 (1989). The ``new rule'' limitation was
suggested in a plurality opinion in Teague. A Court majority in Penry
and later cases has adopted it.
\112\489 U.S. at 313. The second exception was at issue in
Sawyer v. Smith, 497 U.S. 227 (1990); there the Court held the exception
inapplicable to the Caldwell v. Mississippi rule that the Eighth
Amendment is violated by prosecutorial misstatements characterizing the
jury's role in capital sentencing as merely recommendatory. It is ``not
enough,'' the Sawyer Court explained, ``that a new rule is aimed at
improving the accuracy of a trial. . . . A rule that qualifies under
this exception must not only improve accuracy, but also `alter our
understanding of the bedrock procedural elements' essential to the
fairness of a proceeding.'' Id. at 242.
\113\Penry, 492 U.S. at 314. Put another way, it is not enough
that a decision is ``within the `logical compass' of an earlier
decision, or indeed that it is `controlled' by a prior decision.'' A
decision announces a ``new rule'' if its result ``was susceptible to
debate among reasonable minds'' or if it would not have been ``an
illogical or even a grudging application'' of the prior decision to hold
it inapplicable. Butler v. McKellar, 494 U.S. 407, 415 (1990).
\114\See, e.g., Butler v. McKellar, 494 U.S. 407 (1990) (1988
ruling in Arizona v. Roberson, that the Fifth Amendment bars police-
initiated interrogation following a suspect's request for counsel in the
context of a separate investigation, announced a ``new rule'' not
dictated by the 1981 decision in Edwards v. Arizona that police must
refrain from all further questioning of an in-custody accused who
invokes his right to counsel); Saffle v. Parks, 494 U.S. 484 (1990)
(habeas petitioner's request that capital sentencing be reversed because
of an instruction that the jury ``avoid any influence of sympathy'' is a
request for a new rule not ``compel[led]'' by Eddings and Lockett, which
governed what mitigating evidence a jury must be allowed to consider,
not how it must consider that evidence); Sawyer v. Smith, 497 U.S. 227
(1990) (1985 ruling in Caldwell v. Mississippi, although a ``predictable
development in Eighth Amendment law,'' established a ``new rule'' that
false prosecutorial comment on jurors' responsibility can violate the
Eighth Amendment by creating an unreasonable risk of arbitrary
imposition of the death penalty, since no case prior to Caldwell had
invalidated a prosecutorial comment on Eighth Amendment grounds). But
see Stringer v. Black, 112 S. Ct. 1130 (1992) (neither Maynard v.
Cartwright, 486 U.S. 356 (1988), nor Clemons v. Mississippi, 494 U.S.
738 (1990), announced a ``new rule'').
\115\Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).
\116\Lewis v. Jeffers, 497 U.S. 764, 780-84 (1990). The lower
court erred, therefore, in conducting a comparative review to determine
whether application in the defendant's case was consistent with other
applications.
\117\Sawyer v. Whitley, 112 S. Ct. 2514 (1992). The focus on
eligibility limits inquiry to elements of the crime and to aggravating
factors, and thereby prevents presentation of mitigating evidence. Here
the court was barred from considering an allegation of ineffective
assistance of counsel for failure to introduce the defendant's mental
health records as a mitigating factor at sentencing.
\118\Murray v. Giarratano, 492 U.S. 1 (1989) (``unit attorneys''
assigned to prisons were available for some advice prior to filing a
claim).
---------------------------------------------------------------------------
In Coker v. Georgia,\119\ the Court held that the state may not
impose a death sentence upon a rapist who does not take a human
[[Page 1488]]
life.\120\ The Court announced that the standard under the Eighth
Amendment was that punishments are barred when they are ``excessive'' in
relation to the crime committed. A ``punishment is `excessive' and
unconstitutional if it (1) makes no measurable contribution to
acceptable goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering; or (2) is
grossly out of proportion to the severity of the crime.''\121\ In order
that judgment not be or appear to be the subjective conclusion of
individual Justices, attention must be given to objective factors,
predominantly ``to the public attitudes concerning a particular
sentence--history and precedent, legislative attitudes, and the response
of juries reflected in their sentencing decisions. . . .''\122\ While
the Court thought that the death penalty for rape passed the first test,
it felt it failed the second. Georgia was the sole State providing for
death for the rape of an adult woman, and juries in at least nine out of
ten cases refused to impose death for rape. Aside from this view of
public perception, the Court independently concluded that death is an
excessive penalty for an offender who rapes but does not kill; rape
cannot compare with murder ``in terms of moral depravity and of injury
to the person and the public.''\123\
\119\433 U.S. 584 (1977). Justice White's opinion was joined
only by Justices Stewart, Blackmun, and Stevens. Justices Brennan and
Marshall concurred on their view that the death penalty is per se
invalid, id. at 600, and Justice Powell concurred on a more limited
basis than Justice White's opinion. Id. at 601. Chief Justice Burger and
Justice Rehnquist dissented. Id. at 604.
\120\Although the Court stated the issue in the context of the
rape of an adult woman, id. at 592, the opinion at no point sought to
distinguish between adults and children. Justice Powell's concurrence
expressed the view that death is ordinarily disproportionate for the
rape of an adult woman, but that some rapes might be so brutal or
heinous as to justify it. Id. at 601.
\121\Id. at 592.
\122\Id.
\123\Id. at 598.
---------------------------------------------------------------------------
Applying the Coker analysis, the Court ruled in Enmund v.
Florida\124\ that death is an unconstitutional penalty for felony murder
if the defendant did not himself kill, or attempt to take life, or
intend that anyone be killed. While a few more States imposed capital
punishment in felony murder cases than had imposed it for rape,
nonetheless the weight was heavily against the practice, and the
evidence of jury decisions and other indicia of a modern consensus
similarly opposed the death penalty in such circumstances. Moreover, the
Court determined that death was a disproportionate sentence for one who
neither took life nor intended to do so. Because the death penalty is a
likely deterrent only when murder is the result of premeditation and
deliberation, and because the jus
[[Page 1489]]
tification of retribution depends upon the degree of the defendant's
culpability, the imposition of death upon one who participates in a
crime in which a victim is murdered by one of his confederates and not
as a result of his own intention serves neither of the purposes
underlying the penalty.\125\ In Tison v. Arizona, however, the Court
eased the ``intent to kill'' requirement, holding that, in keeping with
an ``apparent consensus'' among the states, ``major participation in the
felony committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement.''\126\ A few
years earlier, Enmund had also been weakened by the Court's holding that
the factual finding of requisite intent to kill need not be made by the
guilt/innocence factfinder, whether judge or jury, but may be made by a
state appellate court.\127\
\124\458 U.S. 782 (1982). Justice White wrote the opinion of the
Court and was joined by Justices Brennan, Marshall, Blackmun, and
Stevens. Justice O'Connor, with Justices Powell and Rehnquist and Chief
Justice Burger, dissented. Id. at 801. Accord, Cabana v. Bullock, 474
U.S. 376 (1986) (also holding that the proper remedy in a habeas case is
to remand for state court determination as to whether Enmund findings
have been made).
\125\Justice O'Connor thought the evidence of contemporary
standards did not support a finding that capital punishment was not
appropriate in felony murder situations. Id. at 816-23. She also
objected to finding the penalty disproportionate, first because of the
degree of participation of the defendant in the underlying crime, id. at
823-26, but also because the Court appeared to be constitutionalizing a
standard of intent required under state law.
\126\481 U.S. 137, 158 (1987). The decision was 5-4. Justice
O'Connor's opinion for the Court viewed a ``narrow'' focus on intent to
kill as ``a highly unsatisfactory means of definitively distinguishing
the most culpable and dangerous of murderers,'' id. at 157, and
concluded that ``reckless disregard for human life'' may be held to be
``implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.'' Id.
\127\Cabana v. Bullock, 474 U.S. 376 (1986). Moreover, an
appellate court's finding of culpability is entitled to a presumption of
correctness in federal habeas review, a habeas petitioner bearing a
``heavy burden of overcoming the presumption.'' Id. at 387-88. See also
Pulley v. Harris, 465 U.S. 37 (1984) (Eighth Amendment does not
invariably require comparative proportionality review by a state
appellate court).
---------------------------------------------------------------------------
A measure of protection against jury bias was added by the
Court's holding that ``a capital defendant accused of an interracial
crime is entitled to have prospective jurors informed of the race of the
victim and questioned on the issue of racial bias.''\128\ A year later,
however, the Court ruled in McCleskey v. Kemp\129\ that a strong
statistical showing of racial disparity in capital sentencing cases is
insufficient to establish an Eighth Amendment violation. Statistics
alone do not establish racial discrimination in any particular case, the
Court concluded, but ``at most show only a likelihood that a particular
factor entered into some decisions.''\130\ Just as important to the
outcome, however, was the Court's application of the two overarching
principles of prior capital punishment cases:
[[Page 1490]]
that a state's system must narrow a sentencer's discretion to impose the
death penalty (e.g., by carefully defining ``aggravating''
circumstances), but must not constrain a sentencer's discretion to
consider mitigating factors relating to the character of the defendant.
While the dissenters saw the need to narrow discretion in order to
reduce the chance that racial discrimination underlies jury decisions to
impose the death penalty,\131\ the majority emphasized the need to
preserve jury discretion not to impose capital punishment. Reliance on
statistics to establish a prima facie case of discrimination, the Court
feared, could undermine the requirement that capital sentencing jurors
``focus their collective judgment on the unique characteristics of a
particular criminal defendant''--a focus that can result in ``final and
unreviewable'' leniency.\132\
\128\Turner v. Murray, 476 U.S. 28, 36-37 (1986).
\129\481 U.S. 279 (1987). The decision was 5-4. Justice Powell's
opinion of the Court was joined by Chief Justice Rehnquist and by
Justices White, O'Connor, and Scalia. Justices Brennan, Blackmun,
Stevens, and Marshall dissented.
\130\481 U.S. at 308.
\131\Id. at 339-40 (Brennan), 345 (Blackmun), 366 (Stevens).
\132\Id. at 311. Concern for protecting ``the fundamental role
of discretion in our criminal justice system'' also underlay the Court's
rejection of an equal protection challenge in McCleskey. See p.1857,
infra.
---------------------------------------------------------------------------
The Court has recently grappled with several cases involving
application of the death penalty to persons of diminished capacity. The
first such case involved a defendant whose competency at the time of his
offense, at trial, and at sentencing had not been questioned, but who
subsequently developed a mental disorder. The Court held in Ford v.
Wainwright\133\ that the Eighth Amendment prohibits the state from
carrying out the death penalty on an individual who is insane, and that
properly raised issues of execution-time sanity must be determined in a
proceeding satisfying the minimum requirements of due process.\134\ The
Court noted that execution of the insane had been considered cruel and
unusual at common law and at the time of adoption of the Bill of Rights,
and continues to be so viewed today. And, while no states purport to
permit the execution of the insane, a number, including Florida, leave
the determination to the governor. Florida's procedures, the Court held,
fell short of due process because the decision was vested in the
governor, and because the defendant was given no opportunity to be
heard, the governor's decision being based on reports of three state-
appointed psychiatrists.\135\
\133\477 U.S. 399 (1986).
\134\There was an opinion of the Court only on the first issue,
that the Eighth Amendment creates a right not to be executed while
insane. Justice Marshall's opinion to that effect was joined by Justices
Brennan, Blackmun, Stevens, and Powell. The Court's opinion did not
attempt to define insanity; Justice Powell's concurring opinion would
have held the prohibition applicable only for ``those who are unaware of
the punishment they are about to suffer and why they are to suffer it.''
Id. at 422.
\135\There was no opinion of the Court on the issue of
procedural requirements. Justice Marshall, joined by Justices Brennan,
Blackmun, and Stevens, would hold that ``the ascertainment of a
prisoner's sanity . . . calls for no less stringent standards than those
demanded in any other aspect of a capital proceeding.'' 477 U.S. at 411-
12. Concurring Justice Powell thought that due process might be met by a
proceeding ``far less formal than a trial,'' that the state ``should
provide an impartial officer or board that can receive evidence and
argument from the prisoner's counsel.'' Id. at 427. Concurring Justice
O'Connor, joined by Justice White, emphasized Florida's denial of the
opportunity to be heard, and did not express an opinion on whether the
state could designate the governor as decisionmaker. Thus Justice
Powell's opinion, requiring the opportunity to be heard before an
impartial officer or board, sets forth the Court's holding.
---------------------------------------------------------------------------
[[Page 1491]]
By contrast the Court in 1989 found ``insufficient evidence of a
national consensus against executing mentally retarded people.'' While
the Court conceded that ``it may indeed be `cruel and unusual'
punishment to execute persons who are profoundly or severely retarded
and wholly lacking the capacity to appreciate the wrongfulness of their
actions,'' retarded persons who have been found competent to stand
trial, and who have failed to establish an insanity defense, fall into a
different category. Consequently, the Court was unwilling to conclude
that execution of a mentally retarded person is ``categorically
prohibited by the Eighth Amendment.''\136\ What is required in this as
in other contexts, however, is individualized consideration of
culpability: a retarded defendant must be offered the benefit of an
instruction that the jury may consider and give mitigating effect to
evidence of retardation or abused background.\137\
\136\Penry v. Lynaugh, 492 U.S. 302, 335 (1989).
\137\Id. at 328.
---------------------------------------------------------------------------
There is also no categorical prohibition on execution of
juveniles. A closely divided Court has invalidated one statutory scheme
which permitted capital punishment to be imposed for crimes committed
before age 16, but has upheld other statutes authorizing capital
punishment for crimes committed by 16 and 17 year olds. Important to
resolution of the first case was the fact that Oklahoma set no minimum
age for capital punishment, but by separate provision allowed juveniles
to be treated as adults for some purposes.\138\ While four Justices
favored a flat ruling that execution of anyone younger than 16 at the
time of his offense is barred by the Eighth Amendment, concurring
Justice O'Connor found Oklahoma's scheme defective as not having
necessarily resulted from the special care and deliberation that must
attend decisions to impose the death penalty.\139\ The following year
Justice O'Connor again provided the decisive vote when the Court in
Stanford v.
[[Page 1492]]
Kentucky\140\ held that the Eighth Amendment does not categorically
prohibit imposition of the death penalty for individuals who commit
crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor
Missouri\141\ directly specified a minimum age for the death penalty. To
Justice O'Connor, however, the critical difference was that there
clearly was no national consensus forbidding imposition of capital
punishment on 16 or 17-year-old murderers, whereas there was such a
consensus against execution of 15 year olds.\142\
\138\Thompson v. Oklahoma, 487 U.S. 815 (1988).
\139\The plurality opinion by Justice Stevens was joined by
Justices Brennan, Marshall, and Blackmun; as indicated in the text,
Justice O'Connor concurred in a separate opinion; and Justice Scalia,
joined by Chief Justice Rehnquist and by Justice White, dissented.
Justice Kennedy did not participate.
\140\492 U.S. 361 (1989). The bulk of Justice Scalia's opinion,
representing the opinion of the Court, was joined by Chief Justice
Rehnquist and by Justices White, O'Connor, and Kennedy. Justice O'Connor
took exceptions to other portions of Justice Scalia's opinion (dealing
with proportionality analysis); and Justice Brennan, joined by Justices
Marshall, Blackmun, and Stevens, dissented.
\141\The case of Wilkins v. Missouri was decided along with
Stanford.
\142\Compare Thompson, 487 U.S. at 849 (O'Connor, J.,
concurring) (two-thirds of all state legislatures had concluded that no
one should be executed for a crime committed at age 15, and no state had
``unequivocally endorsed'' a lower age limit) with Stanford, 492 U.S. at
370 (15 of 37 states permitting capital punishment decline to impose it
on 16-year-old offenders; 12 decline to impose it on 17-year-old-
offenders).
---------------------------------------------------------------------------
The Stanford Court was split over the appropriate scope of
inquiry in cruel and unusual punishment cases. Justice Scalia's
plurality would focus almost exclusively on an assessment of what the
state legislatures and Congress have done in setting an age limit for
application of capital punishment.\143\ The Stanford dissenters would
broaden this inquiry with proportionality review that considers the
defendant's culpability as one aspect of the gravity of the offense,
that considers age as one indicator of culpability, and that looks to
other statutory age classifications to arrive at a conclusion about the
level of maturity and responsibility that society expects of
juveniles.\144\ Justice O'Connor, while recognizing the Court's
``constitutional obligation to conduct proportionality analysis,'' does
not believe that such analysis can resolve the underlying issue of the
constitutionally required minimum age.\145\
\143\``A revised national consensus so broad, so clear and so
enduring as to justify a permanent prohibition upon all units of
democratic government must appear in the operative acts (laws and the
application of laws) that the people have approved.'' 492 U.S. at 377.
\144\Id. at 394-96.
\145\Id. at 382.
---------------------------------------------------------------------------
While the Court continues to tinker with the law of capital
punishment, it has taken a number of steps in the 1980s and early 1990s
to attempt to reduce the many procedural and substantive opportunities
for delay and defeat of the carrying out of death sentences, and to give
the states more leeway in administering capital sentencing. The early
post-Furman stage involving creation of procedural protections for
capital defendants, and premised on a
[[Page 1493]]
``death is different'' rationale,\146\ gave way to increasing impatience
with the delays made possible through procedural protections, especially
those associated with federal habeas corpus review.\147\ Having
consistently held that capital punishment is not inherently
unconstitutional, the Court seems bent on clarifying and even
streamlining constitutionally required procedures so that those states
that choose to impose capital punishment may do so without inordinate
delays. Changed membership on the Court is having its effect; gone from
the Court are Justices Brennan and Marshall, whose belief that all
capital punishment constitutes cruel and unusual punishment meant two
automatic votes against any challenged death sentence. Strong
differences remain over such issues as the appropriate framework for
consideration of aggravating and mitigating circumstances and the
appropriate scope of federal review, but as of 1992 a Court majority
seems committed to reducing obstacles created by federal review of death
sentences pursuant to state laws that have been upheld as
constitutional.
\146\See, e.g., Gardner v. Florida, 430 U.S. 349, 357-58 (1977):
``From the point of view of the defendant, [death] is different in both
its severity and its finality. From the point of view of society, the
action of the sovereign in taking the life of one of its citizens also
differs dramatically from any other legitimate state action. It is of
vital importance . . . that any decision to impose the death sentence
be, and appear to be, based on reason rather than caprice or emotion.''
\147\See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983):
``unlike a term of years, a death sentence cannot begin to be carried
out by the State while substantial legal issues remain outstanding.
Accordingly, federal courts must isolate the exceptional cases where
constitutional error requires retrial or resentencing as certainly and
swiftly as orderly procedures will permit.'' See also Gomez v. United
States District Court, 112 S. Ct. 1652 (1992) (vacating orders staying
an execution, and refusing to consider, because of ``abusive delay,'' a
claim that ``could have been brought more than a decade ago''--that
California's method of execution (cyanide gas) constitutes cruel and
unusual punishment).
---------------------------------------------------------------------------
Proportionality.--Justice Field in O'Neil v. Vermont\148\ argued
in dissent that in addition to prohibiting punishments deemed barbarous
and inhumane the Eighth Amendment also condemned ``all punishments which
by their excessive length or severity are greatly disproportionate to
the offenses charged.'' In Weems v. United States,\149\ this view was
adopted by the Court in striking down a sentence in the Philippine
Islands of 15 years incarceration at hard labor with chains on the
ankles, loss of all civil rights, and perpetual surveillance, for the
offense of falsifying public documents. The Court compared the sentence
with those meted out for other offenses and concluded: ``This contrast
shows more than dif
[[Page 1494]]
ferent exercises of legislative judgment. It is greater than that. It
condemns the sentence in this case as cruel and unusual. It exhibits a
difference between unrestrained power and that which is exercised under
the spirit of constitutional limitations formed to establish
justice.''\150\ Punishments as well as fines, therefore, can be
condemned as excessive.\151\
\148\144 U.S. 323, 339-40 (1892). See also Howard v. Fleming,
191 U.S. 126, 135-36 (1903).
\149\217 U.S. 349 (1910). The Court was here applying not the
Eighth Amendment but a statutory bill of rights applying to the
Philippines which it interpreted as having the same meaning. Id. at 367.
\150\Id. at 381.
\151\Proportionality in the context of capital punishment is
considered supra, pp.1478-79.
---------------------------------------------------------------------------
In Robinson v. California\152\ the Court carried the principle
to new heights, setting aside a conviction under a law making it a crime
to ``be addicted to the use of narcotics.'' The statute was
unconstitutional because it punished the ``mere status'' of being an
addict without any requirement of a showing that a defendant had ever
used narcotics within the jurisdiction of the State or had committed any
act at all within the State's power to proscribe, and because addiction
is an illness which--however it is acquired--physiologically compels the
victim to continue using drugs. The case could stand for the principle,
therefore, that one may not be punished for a status in the absence of
some act,\153\ or it could stand for the broader principle that it is
cruel and unusual to punish someone for conduct he is unable to control,
a holding of far-reaching importance.\154\ In Powell v. Texas,\155\ a
majority of the Justices
[[Page 1495]]
took the latter view of Robinson, but the result, because of a view of
the facts held by one Justice, was a refusal to invalidate a conviction
of an alcoholic for public drunkenness. Whether the Eighth Amendment or
the due process clauses will govern the requirement of the recognition
of capacity defenses to criminal charges, or whether either will,
remains to be decided in future cases.
\152\370 U.S. 660 (1962).
\153\A different approach to essentially the same problem was
Thompson v. Louisville, 362 U.S. 199 (1960), in which a conviction for
loitering and disorderly conduct was set aside as being supported by
``no evidence whatever'' that defendant had done anything. Cf. Johnson
v. Florida, 391 U.S. 596 (1968) (no evidence that the defendant was
``wandering or strolling around'' in violation of vagrancy law).
\154\Fully applied, the principle would raise to constitutional
status the concept of mens rea, and it would thereby constitutionalize
some form of insanity defense as well as other capacity defenses. For a
somewhat different approach, see Lambert v. California, 355 U.S. 225
(1957) (due process denial for city to apply felon registration
requirement to someone present in city but lacking knowledge of
requirement). More recently, this controversy has become a due process
matter, with the holding that the due process clause requires the
prosecution to prove beyond a reasonable doubt the facts necessary to
constitute the crime charged, Mullaney v. Wilbur, 421 U.S. 684 (1975),
raising the issue of the insanity defense and other such questions. See
Rivera v. Delaware, 429 U.S. 877 (1976), Patterson v. New York, 432 U.S.
197, 202-05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an
Eighth Amendment proportionality case, the Court suggested in dictum
that life imprisonment without possibility of parole of a recidivist who
was an alcoholic, and all of whose crimes had been influenced by his
alcohol use, was ``unlikely to advance the goals of our criminal justice
system in any substantial way.''
\155\392 U.S. 514 (1968). The plurality opinion by Justice
Marshall, joined by Justices Black and Harlan and Chief Justice Warren,
interpreted Robinson as proscribing only punishment of ``status,'' and
not punishment for ``acts,'' and expressed a fear that a contrary
holding would impel the Court into constitutional definitions of such
matters as actus reus, mens rea, insanity, mistake, justification, and
duress. Id. at 532-37. Justice White concurred, but only because the
record did not show that the defendant was unable to stay out of public;
like the dissent, Justice White was willing to hold that if addiction as
a status may not be punished neither can the yielding to the compulsion
of that addiction, whether to narcotics or to alcohol. Id. at 548.
Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to
adopt a rule that ``[c]riminal penalties may not be inflicted upon a
person for being in a condition he is powerless to change.'' That is,
one under an irresistible compulsion to drink or to take narcotics may
not be punished for those acts. Id. at 554, 567.
---------------------------------------------------------------------------
The Court has gone back and forth in its acceptance of
proportionality analysis in noncapital cases. It appeared that such
analysis had been closely cabined in Rummel v. Estelle,\156\ upholding a
mandatory life sentence under a recidivist statute following a third
felony conviction, even though the defendant's three nonviolent felonies
had netted him a total of less than $230. The Court reasoned that the
unique quality of the death penalty rendered capital cases of limited
value, and Weems was distinguished on the basis that the length of the
sentence was of considerably less concern to the Court than were the
brutal prison conditions and the postrelease denial of significant
rights imposed under the peculiar Philippine penal code. Thus, in order
to avoid improper judicial interference into state penal systems, Eighth
Amendment judgments must be informed by objective factors to the maximum
extent possible. But when the challenge to punishment goes to the length
rather than the seriousness of the offense, the choice is necessarily
subjective. Therefore, the Rummel rule appeared to be that States may
punish any behavior properly classified as a felony with any length of
imprisonment purely as a matter of legislative grace.\157\ The Court
dismissed as unavailing the factors relied on by the defendant. First,
the fact that the nature of the offense was nonviolent was found not
necessarily relevant to the seriousness of a crime, and the
determination of what is a ``small'' amount of money, being so
subjective, was a legislative task. In any event, the State could focus
on recidivism, not the specific acts. Second, the comparison of
punishment imposed for the same offenses in other jurisdictions was
found unhelpful, differences and similarities being
[[Page 1496]]
more subtle than gross, and in any case in a federal system one
jurisdiction would always be more severe than the rest. Third, the
comparison of punishment imposed for other offenses in the same State
ignored the recidivism aspect.\158\
\156\445 U.S. 263 (1980). The opinion, by Justice Rehnquist, was
concurred in by Chief Justice Burger and Justices Stewart, White, and
Blackmun. Dissenting were Justices Powell, Brennan, Marshall, and
Stevens. Id. at 285.
\157\In Hutto v. Davis, 454 U.S. 370 (1982), on the authority of
Rummel, the Court summarily reversed a decision holding disproportionate
a prison term of 40 years and a fine of $20,000 for defendant's
possession and distribution of approximately nine ounces of marijuana
said to have a street value of about $200.
\158\Rummel, 445 U.S. at 275-82. The dissent deemed these three
factors to be sufficiently objective to apply and thought they
demonstrated the invalidity of the sentence imposed. Id. at 285, 295-
303.
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Rummel was distinguished in Solem v. Helm,\159\ the Court
stating unequivocally that the cruel and unusual punishments clause
``prohibits not only barbaric punishments, but also sentences that are
disproportionate to the crime committed,'' and that ``[t]here is no
basis for the State's assertion that the general principle of
proportionality does not apply to felony prison sentences.''\160\ Helm,
like Rummel, had been sentenced under a recidivist statute following
conviction for a nonviolent felony involving a small amount of
money.\161\ The difference was that Helm's sentence of life imprisonment
without possibility of parole was viewed as ``far more severe than the
life sentence we described in Rummel.''\162\ Rummel, the Court pointed
out, had been eligible for parole after 12 years' imprisonment, while
Helm had only the possibility of executive clemency, characterized by
the Court as ``nothing more than a hope for `an ad hoc exercise of
clemency.'''\163\ In Helm the Court also spelled out the ``objective
criteria'' by which proportionality issues should be judged: ``(i) the
gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and (iii)
the sentences imposed for commission of the same crime in other
jurisdictions.''\164\ Measured by these criteria Helm's sentence was
cruel and unusual. His crime was relatively minor, yet life imprisonment
without possibility for parole was the harshest penalty possible in
South Dakota, reserved for such other offenses as murder, manslaughter,
kidnapping, and arson. In only one other state could he have received so
harsh a sentence, and in no other state was it mandated.\165\
\159\463 U.S. 277 (1983). The case, as Rummel, was decided by 5-
4 vote, with the Rummel dissenters, joined by Justice Blackmun from the
Rummel majority, composing the majority, and with Justice O'Connor
taking Justice Stewart's place in opposition to holding the sentence
invalid. Justice Powell wrote the opinion of the Court in Helm, and
Chief Justice Burger wrote the dissent.
\160\463 U.S. at 284, 288.
\161\The final conviction was for uttering a no-account check in
the amount of $100; previous felony convictions were also for nonviolent
crimes described by the Court as ``relatively minor.'' 463 U.S. at 296-
97.
\162\Id. at 297.
\163\Id. at 303.
\164\Id. at 292.
\165\For a suggestion that Eighth Amendment proportionality
analysis may limit the severity of punishment possible for prohibited
private and consensual homosexual conduct, see Justice Powell's
concurring opinion in Bowers v. Hardwick, 478 U.S. 186, 197 (1986).
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[[Page 1497]]
The Court remained closely divided in holding in Harmelin v.
Michigan\166\ that a mandatory term of life imprisonment without
possibility of parole was not cruel and unusual as applied to the crime
of possession of more than 650 grams of cocaine. There was an opinion of
the Court only on the issue of the mandatory nature of the penalty, the
Court rejecting an argument that sentencers in non-capital cases must be
allowed to hear mitigating evidence.\167\ As to the length of sentence,
three majority Justices--Kennedy, O'Connor, and Souter--would recognize
a narrow proportionality principle, but considered Harmelin's crime
severe and by no means grossly disproportionate to the penalty
imposed.\168\
\166\501 U.S. 957 (1991).
\167\``Severe, mandatory penalties may be cruel, but they are
not unusual in the constitutional sense.'' Id. at 994. The Court's
opinion, written by Justice Scalia, then elaborated an understanding of
``unusual''--set forth elsewhere in a part of his opinion subscribed to
only by Chief Justice Rehnquist--that denies the possibility of
proportionality review altogether. Mandatory penalties are not unusual
in the constitutional sense because they have ``been employed in various
form throughout our Nation's history.'' This is an application of
Justice Scalia's belief that cruelty and unusualness are to be
determined solely by reference to the punishment at issue, and without
reference to the crime for which it is imposed. See id. at 975-78 (not
opinion of Court--only Chief Justice Rehnquist joined this portion of
the opinion). Because a majority of other Justices indicated in the same
case that they do recognize at least a narrow proportionality principle
(see id. at 996 (Justices Kennedy, O'Connor, and Souter concurring); id.
at 1009 (Justices White, Blackmun, and Stevens dissenting); id. at 1027
(Justice Marshall dissenting)), the fact that three of those Justices
(Kennedy, O'Connor, and Souter) joined Justice Scalia's opinion on
mandatory penalties should probably not be read as representing
agreement with Justice Scalia's general approach to proportionality.
\168\Because of the ``serious nature'' of the crime, the 3-
Justice plurality asserted that there was no need to apply the other
Solem factors comparing the sentence to sentences imposed for other
crimes in Michigan, and to sentences imposed for the same crime in other
jurisdictions. Id. at 1004. Dissenting Justice White, joined by Justices
Blackmun and Stevens (Justice Marshall also expressed agreement on this
and most other points, id. at 1027), asserted that Justice Kennedy's
approach would ``eviscerate'' Solem. Id. at 1018.
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Prisons and Punishment.--``It is unquestioned that
`[c]onfinement' in a prison . . . is a form of punishment subject to
scrutiny under the Eighth Amendment standards.''\169\ ``Conditions in
prison must not involve the wanton and unnecessary infliction of pain,
nor may they be grossly disproportionate to the severity of the crime
warranting imprisonment. . . . Conditions . . . , alone or in
combination, may deprive inmates of the minimal civilized measure of
life's necessities. . . . But conditions that cannot be said to be cruel
and unusual under contemporary standards are not unconstitutional. To
the extent that such conditions are restrictive and even harsh, they are
part of the penalty that criminal offenders
[[Page 1498]]
pay for their offenses against society.''\170\ These general principles
apply both to the treatment of individuals\171\ and to the creation or
maintenance of prison conditions that are inhumane to inmates
generally.\172\ Ordinarily there is both a subjective and an objective
inquiry. Before conditions of confinement not formally meted out as
punishment by the statute or sentencing judge can qualify as
``punishment,'' there must be a culpable, ``wanton'' state of mind on
the part of prison officials.\173\ In the context of general prison
conditions, this culpable state of mind is ``deliberate
indifference'';\174\ in the context of emergency actions, e.g., actions
required to suppress a disturbance by inmates, only a malicious and
sadistic state of mind is culpable.\175\ When excessive force is
alleged, the objective standard varies depending upon whether that force
was applied in a good-faith effort to maintain or restore discipline, or
whether it was applied maliciously and sadistically to cause harm. In
the good-faith context, there must be proof of significant injury. When,
however, prison officials ``maliciously and sadistically use force to
cause harm, contemporary standards of decency are always violated,'' and
there is no need to prove that ``significant injury'' resulted.\176\
\169\Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (quoting Hutto
v. Finney, 437 U.S. 678, 685 (1978)).
\170\452 U.S. at 347.
\171\E.g., Estelle v. Gamble, 429 U.S. 97 (1976) (deliberate
medical neglect of a prisoner violates Eighth Amendment); Jackson v.
Bishop, 404 F.2d 571 (8th Cir. 1968) (beating prisoner with leather
strap violates Amendment).
\172\E.g., Hutto v. Finney, 437 U.S. 678 (1978).
\173\Wilson v. Seiter, 501 U.S. 294 (1991).
\174\Id. at 303.
\175\Whitley v. Albers, 475 U.S. 312 (1986) (arguably excessive
force in suppressing prison uprising did not constitute cruel and
unusual punishment).
\176\Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992) (beating
of a shackled prisoner resulted in bruises, swelling, loosened teeth,
and a cracked dental plate).
---------------------------------------------------------------------------
Beginning with Holt v. Sarver,\177\ federal courts found prisons
or entire prison systems violative of the cruel and unusual punishments
clause, and broad remedial orders directed to improving prison
conditions and ameliorating prison life were imposed in more than two
dozen States.\178\ But while the Supreme Court expressed general
agreement with the thrust of the lower court actions, it set aside two
rather extensive decrees and cautioned the federal courts to proceed
with deference to the decisions of state
[[Page 1499]]
legislatures and prison administrators.\179\ In both cases, the prisons
involved were of fairly recent vintage and the conditions, while harsh,
did not approach the conditions described in many of the lower court
decisions that had been left undisturbed.\180\ Thus, concerns of
federalism and of judicial restraint apparently actuated the Court to
begin to curb the lower federal courts from ordering remedial action for
systems in which the prevailing circumstances, given the resources
States choose to devote to them, ``cannot be said to be cruel and
unusual under contemporary standards.''\181\
\177\309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th
Cir. 1971), district court ordered to retain jurisdiction until
unconstitutional conditions corrected, 505 F.2d 194 (8th Cir. 1974). The
Supreme Court ultimately sustained the decisions of the lower courts in
Hutto v. Finney, 437 U.S. 678 (1978).
\178\Rhodes v. Chapman, 452 U.S. 337, 353-54 n.1 (1981) (Justice
Brennan concurring) (collecting cases). See Note, Complex Enforcement:
Unconstitutional Prison Conditions, 94 Harv. L. Rev. 626 (1981).
Congress encouraged the bringing of much litigation by enacting the
Civil Rights of Institutionalized Persons Act, Pub. L. No. 96-247, 94
Stat. 349, 42 U.S.C. Sec. Sec. 1997 et seq.
\179\Bell v. Wolfish, 441 U.S. 520 (1979); Rhodes v. Chapman,
452 U.S. 337 (1981).
\180\See, e.g., Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976)
(describing conditions of ``horrendous overcrowding,'' inadequate
sanitation, infested food, and ``rampant violence''); Ramos v. Lamm, 639
F.2d 559 (10th Cir. 1981) (describing conditions ``unfit for human
habitation''). The primary issue in both Wolfish and Chapman was that of
``double-celling,'' the confinement of two or more prisoners in a cell
designed for one. In both cases, the Court found the record did not
support orders ending the practice.
\181\Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Rufo
v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1991) (allowing
modification, based on a significant change in law or facts, of a 1979
consent decree that had ordered construction of a new jail with single-
occupancy cells; modification was to depend upon whether the upsurge in
jail population was anticipated when the decree was entered, and whether
the decree was premised on the mistaken belief that single-celling is
constitutionally mandated).
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Limitation of the Clause to Criminal Punishments.--The Eighth
Amendment deals only with criminal punishment, and has no application to
civil processes. In holding the Amendment inapplicable to the infliction
of corporal punishment upon schoolchildren for disciplinary purposes,
the Court explained that the cruel and unusual punishments clause
``circumscribes the criminal process in three ways: First, it limits the
kinds of punishment that can be imposed on those convicted of crimes;
second, it proscribes punishment grossly disproportionate to the
severity of the crime; and third, it imposes substantive limits on what
can be made criminal and punished as such.''\182\ These limitations, the
Court thought, should not be extended outside the criminal process.
\182\Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citations
omitted). Constitutional restraint on school discipline, the Court
ruled, is to be found in the due process clause if at all.
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