Solem v. Helm (1983)

463 U.S. 277 (1983)

Vote: 5-4
Decision: Affirmed
Majority: Powell, joined by Brennan, Blackmun, Marshall, and Stevens
Dissent: Burger, joined by O’Connor, Rehnquist, and White

JUSTICE POWELL delivered the opinion of the Court.

The issue presented is whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony.

By 1975, the State of South Dakota had convicted respondent Jerry Helm of six nonviolent felonies. In 1964, 1966, and 1969, Helm was convicted of third-degree burglary. In 1972, he was convicted of obtaining money under false pretenses. In 1973, he was convicted of grand larceny. And in 1975, he was convicted of third-offense driving while intoxicated. The record contains no details about the circumstances of any of these offenses, except that they were all nonviolent, none was a crime against a person, and alcohol was a contributing factor in each case.

In 1979, Helm was charged with uttering a “no account” check for $100. …

Ordinarily, the maximum punishment for uttering a “no account” check would have been five years’ imprisonment in the state penitentiary and a $5,000 fine. … As a result of his criminal record, however, Helm was subject to South Dakota’s recidivist statute:

“When a defendant has been convicted of at least three prior convictions in addition to the principal felony, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony.”. … The maximum penalty for a “Class 1 felony” was life imprisonment in the state penitentiary and a $25,000 fine. … Moreover, South Dakota law explicitly provides that parole is unavailable: “A person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles.”. … The Governor is authorized to pardon prisoners, or to commute their sentences … but no other relief from sentence is available even to a rehabilitated prisoner.

Immediately after accepting Helm’s guilty plea, the South Dakota Circuit Court sentenced Helm to life imprisonment. … The court explained:

“‘I think you certainly earned this sentence, and certainly proven that you’re an habitual criminal, and the record would indicate that you’re beyond rehabilitation and that the only prudent thing to do is to lock you up for the rest of your natural life, so you won’t have further victims of your crimes. … ‘”

The South Dakota Supreme Court, in a 3-2 decision, affirmed the sentence despite Helm’s argument that it violated the Eighth Amendment. …

… Helm sought habeas relief in the United States District Court for the District of South Dakota. Helm argued, among other things, that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments … [i]t … denied the writ.

The United States Court of Appeals for the Eighth Circuit reversed. … It concluded … that Helm’s sentence was “grossly disproportionate to the nature of the offense.”. …

We granted certiorari to consider the Eighth Amendment question presented by this case. … We now affirm.

The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.

The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common law jurisprudence. In 1215, three chapters of Magna Carta were devoted to the rule that “amercements” may not be excessive. … These were not hollow guarantees, for the royal courts relied on them to invalidate disproportionate punishments. … When prison sentences became the normal criminal sanctions, the common law recognized that these, too, must be proportional. … The English Bill of Rights repeated the principle of proportionality in language that was later adopted in the Eighth Amendment. …

When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights, they also adopted the English principle of proportionality. … Thus our Bill of Rights was designed in part to ensure that these rights were preserved. Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection — including the right to be free from excessive punishments.

The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century. In the leading case of Weems v. United States (1910), the defendant had been convicted of falsifying a public document and sentenced to 15 years of imprisonment that included hard labor in chains and permanent civil disabilities. The Court noted that “it is a precept of justice that punishment for crime should be graduated and proportioned to offense,” … and held that the sentence violated the Eighth Amendment. The Court endorsed the principle of proportionality as a constitutional standard … and determined that the sentence before it was “cruel in its excess of imprisonment,” … well as in its shackles and restrictions. …

There is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences. The constitutional language itself suggests no exception for imprisonment. We have recognized that the Eighth Amendment imposes “parallel limitations” on bail, fines, and other punishments, Ingraham v. Wright … and the text is explicit that bail and fines may not be excessive. It would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death were both subject to proportionality analysis, but the intermediate punishment of imprisonment were not. There is also no historical support for such an exception. The common law principle incorporated into the Eighth Amendment clearly applied to prison terms. … And our prior cases have recognized explicitly that prison sentences are subject to proportionality analysis. …

When we have applied the proportionality principle in capital cases, we have drawn no distinction with cases of imprisonment. … It is true that the “penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” Furman v. Georgia. … As a result, “our decisions [in] capital cases are of limited assistance in deciding the constitutionality of the punishment” in a noncapital case. Rummel v. Estelle. … We agree, therefore, that, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.”. … This does not mean, however, that proportionality analysis is entirely inapplicable in noncapital cases.

In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California … a single day in prison may be unconstitutional in some circumstances.

When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized. First, we look to the gravity of the offense and the harshness of the penalty. In Enmund, for example, the Court examined the circumstances of the defendant’s crime in great detail. … In Coker, the Court considered the seriousness of the crime of rape, and compared it to other crimes, such as murder. … Of course, a court must consider the severity of the penalty in deciding whether it is disproportionate. …

Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. Thus, in Enmund, the Court noted that all of the other felony murderers on death row in Florida were more culpable than the petitioner there. … The Weems Court identified an impressive list of more serious crimes that were subject to less serious penalties. …

Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions. …

In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (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.

Application of these factors assumes that courts are competent to judge the gravity of an offense, at least on a relative scale. In a broad sense, this assumption is justified, and courts traditionally have made these judgments — just as legislatures must make them in the first instance. Comparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender. …

There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society. The absolute magnitude of the crime may be relevant. Stealing a million dollars is viewed as more serious than stealing a hundred dollars — a point recognized in statutes distinguishing petty theft from grand theft. … Few would dispute that a lesser included offense should not be punished more severely than the greater offense. Thus, a court is justified in viewing assault with intent to murder as more serious than simple assault. … A court, of course, is entitled to look at a defendant’s motive in committing a crime. Thus, a murder may be viewed as more serious when committed pursuant to a contract. … This list is by no means exhaustive. It simply illustrates that there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes.

Application of the factors that we identify also assumes that courts are able to compare different sentences. This assumption, too, is justified. The easiest comparison, of course, is between capital punishment and noncapital punishments, for the death penalty is different from other punishments in kind rather than degree. … The Sixth Amendment offers two good examples. A State is constitutionally required to provide an accused with a speedy trial, Klopfer v. North Carolina,(1967), but the delay that is permissible must be determined on a case-by-case basis. “[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case. … ” Barker v. Wingo. …

The right to a jury trial is another example. Baldwin v. New York (1970), in particular, illustrates the line-drawing function of the judiciary, and offers guidance on the method by which some lines may be drawn. There the Court determined that a defendant has a right to a jury trial “where imprisonment for more than six months is authorized.”. … In choosing the 6-month standard, the plurality relied almost exclusively on the fact that only New York City denied the right to a jury trial for an offense punishable by more than six months. …

Helm’s crime was “one of the most passive felonies a person could commit.” State v. Helm, (Henderson, J., dissenting). It involved neither violence nor threat of violence to any person. The $100 face value of Helm’s “no account” check was not trivial, but neither was it a large amount. One hundred dollars was less than half the amount South Dakota required for a felonious theft. It is easy to see why such a crime is viewed by society as among the less serious offenses. Helm, of course, was not charged simply with uttering a “no account” check, but also with being a habitual offender. And a State is justified in punishing a recidivist more severely than it punishes a first offender. Helm’s status, however, cannot be considered in the abstract. His prior offenses, although classified as felonies, were all relatively minor. All were nonviolent, and none was a crime against a person. …

Helm’s present sentence is life imprisonment without possibility of parole. … Helm’s sentence is the most severe punishment that the State could have imposed on any criminal for any crime. … Only capital punishment, a penalty not authorized in South Dakota when Helm was sentenced, exceeds it.

We next consider the sentences that could be imposed on other criminals in the same jurisdiction. When Helm was sentenced, a South Dakota court was required to impose a life sentence for murder … and was authorized to impose a life sentence for treason … first-degree manslaughter … first-degree arson … and kidnaping. … No other crime was punishable so severely on the first offense. … Criminals committing any of these offenses ordinarily would be thought more deserving of punishment than one uttering a “no account” check — even when the bad-check writer had already committed six minor felonies. Moreover, there is no indication in the record that any habitual offender other than Helm has ever been given the maximum sentence on the basis of comparable crimes. … In any event, Helm has been treated in the same manner as, or more severely than, criminals who have committed far more serious crimes.

Finally, we compare the sentences imposed for commission of the same crime in other jurisdictions. The Court of Appeals found that “Helm could have received a life sentence without parole for his offense in only one other state, Nevada,” … and we have no reason to doubt this finding. … At the very least, therefore, it is clear that Helm could not have received such a severe sentence in 48 of the 50 States. But even under Nevada law, a life sentence without possibility of parole is merely authorized in these circumstances. … We are not advised that any defendant such as Helm, whose prior offenses were so minor, actually has received the maximum penalty in Nevada. It appears that Helm was treated more severely than he would have been in any other State.

The State argues that the present case is essentially the same as Rummel v. Estelle, for the possibility of parole in that case is matched by the possibility of executive clemency here. …

As a matter of law, parole and commutation are different concepts. … The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. … Thus it is possible to predict, at least to some extent, when parole might be granted. Commutation, on the other hand, is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards. …

In South Dakota, commutation is more difficult to obtain than parole. … In fact, no life sentence has been commuted in over eight years … while parole — where authorized — has been granted regularly during that period. … Furthermore, even if Helm’s sentence were commuted, he merely would be eligible to be considered for parole. Not only is there no guarantee that he would be paroled, but the South Dakota parole system is far more stringent than the one before us in Rummel. … The possibility of commutation is nothing more than a hope for “an ad hoc exercise of clemency.”. … Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.

The Constitution requires us to examine Helm’s sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment. The judgment of the Court of Appeals is accordingly

Affirmed.

Excerpted by Sobhi Sidani

Furman v. Georgia (1972)

408 U.S. 238 (1972)

Vote: 5-4
Decision: Reversed
Majority: Per Curiam
Concurrence: Douglas
Concurrence: Brennan
Concurrence: Stewart
Concurrence: White
Concurrence: Marshall
Dissent: Burger, joined by Blackmun, Powell, and Rehnquist
Dissent: Blackmun
Dissent: Powell, joined by Burger, Blackmun, and Rehnquist
Dissent: Rehnquist, joined by Burger, Blackmun, and Powell

Per Curiam

… Certiorari was granted limited to the following question:

“Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?”

The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

MR. JUSTICE STEWART, concurring.

The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide …

The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendment’s guarantee against the infliction of cruel and unusual punishments, and the origin and judicial history of capital punishment. There is thus no need for me to review the historical materials here, and what I have to say can, therefore, be briefly stated. Legislatures — state and federal — have sometimes specified that the penalty of death shall be the mandatory punishment for every person convicted of engaging in certain designated criminal conduct … [Fo]r example … [t]he Rhode Island Legislature has ordained the death penalty for a life term prisoner who commits murder. …

If we were reviewing death sentences imposed under these or similar laws, we would be faced with the need to decide whether capital punishment is unconstitutional for all crimes and under all circumstances. We would need to decide whether a legislature — state or federal — could constitutionally determine that certain criminal conduct is so atrocious that society’s interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator, and that, despite the inconclusive empirical evidence, the automatic penalty of death will provide maximum deterrence.

On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment … When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.

The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape. And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder. In a word, neither State has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As MR. JUSTICE WHITE so tellingly puts it, the “legislative will is not frustrated if the penalty is never imposed.”

Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment’s guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. Robinson v. California, [(1962)]. In the first place, it is clear that these sentences are “cruel” in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States, [(1910)]. In the second place, it is equally clear that these sentences are “unusual” in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest my conclusion upon these two propositions alone.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race … But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

For these reasons I concur in the judgments of the Court.

Excerpted by Rorie Solberg

Gregg v. Georgia (1976)

428 U.S. 153 (1976)

Vote: 7-2
Decision: Affirmed
Plurality: Steward, joined by Stevens and Powell
Concurrence: Burger
Concurrence: Rehnquist
Concurrence: White, joined by Burger and Rehnquist
Concurrence: Blackmun
Dissent: Marshall
Dissent: Brennan

Judgment of the Court … announced by MR. JUSTICE STEWART.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that, on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. …

A short time later, the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.

… P]etitioner and Allen, while in Simmons’ car, were arrested in Asheville, N.C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner’s pocket. … Allen recounted the events … was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them … the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen. … Although Allen did not testify, a police detective recounted the substance of Allen’s statements. …

The trial judge submitted the murder charges to the jury on both felony murder and nonfelony murder theories. … The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.

At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner’s lawyer offered any additional evidence. … The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that, in determining what sentence was appropriate, the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.

Finally, the judge instructed the jury that it “would not be authorized to consider [imposing] the penalty of death” unless it first found beyond a reasonable doubt one of these aggravating circumstances;

“One — That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies. … ”

“Two — That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.”

“Three — The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they involved the depravity of [the] mind of the defendant.”. …

Finding the first and second of these circumstances, the jury returned verdicts of death on each count.

The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases. The death sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense, and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. …

We granted the petitioner’s application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as “cruel and unusual” punishment in violation of the Eighth and the Fourteenth Amendments. …

Before considering the issues presented, it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty. The Georgia statute, as amended after our decision in Furman v. Georgia (1972), retains the death penalty for six categories of crime: murder, kidnaping for ransom or where the victim is harmed, armed robbery, rape, treason, and aircraft hijacking. … The capital defendant’s guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial. …

After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. … At the hearing: “[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, … only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney … regarding the punishment to be imposed.” § 27-2503 (Supp. 1975). …

In the assessment of the appropriate sentence to be imposed, the judge is also required to consider or to include in his instructions to the jury “any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence. … ” § 27-2534.1(b) (Supp. 1975). The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute.

. … The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence. § 23102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. … In jury cases, the trial judge is bound by the jury’s recommended sentence §§ 23102, 27-2514 (Supp. 1975). …

In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. …

We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. … [W]e will consider the sentence of death imposed under the Georgia statutes at issue in this case.

The Court, on a number of occasions, has both assumed and asserted the constitutionality of capital punishment. … But until Furman v. Georgia (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. … We now hold that the punishment of death does not invariably violate the Constitution.

The history of the prohibition of “cruel and unusual” punishment already has been reviewed at length. … In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. … But the Court has not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that “a principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, (1910). …

[T]he Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles [(1958)]. … Thus, an assessment of contemporary values … requires … that we look to objective indicia that reflect the public attitude toward a given sanction. But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles. … [T]he punishment not be “excessive.” … “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia … (BURGER, C.J., dissenting). … Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles. …

. … [I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people. This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. “[I]n a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Furman v. Georgia … (BURGER, C.J., dissenting). …

We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question. …

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. … The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases. …

And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of “life, liberty, or property” without due process of law. …

Rejecting the contention that death by electrocution was “cruel and unusual,” the Court in In re Kemmler [(1890)] … reiterated: “[T]he punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”. …

Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. … This view was accepted by two Justices. Three other Justices were unwilling to so far; focusing on the procedures by which convicted defendants were selected for the death penalty, rather than on the actual punishment inflicted … they joined in the conclusion that the statutes before the Court were constitutionally invalid.

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. … [I]t is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. … The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. …

The jury also is a significant and reliable objective index of contemporary values, because it is so directly involved … the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974, at least 254 persons had been sentenced to death since Furman, and, by the end of March, 1976, more than 460 persons were subject to death sentences.

As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. … The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. … “Retribution is no longer the dominant objective of the criminal law,” Williams v. New York (1949), but neither is it a forbidden objective, nor one inconsistent with our respect for the dignity of men. … Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The result simply have been inconclusive. …

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. … The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures. …

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification, and thus is not unconstitutionally severe.

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death, as a punishment, is unique in its severity and irrevocability. … When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. … But we are concerned here only with the imposition of capital punishment for the crime of murder, and, when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

We now consider whether Georgia may impose the death penalty on the petitioner in this case. …

. … Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. … Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

[A] bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.

But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. … Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. … When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations. … In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding. … We do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman. …

We now turn to consideration of the constitutionality of Georgia’s capital sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute … to narrow the class of murderers subject to capital punishment by specifying statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. … In addition, the jury’s attention is focused on the characteristics of the person who committed the crime. …

. … Georgia’s new sentencing procedures require, as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover … the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face, these procedures seem to satisfy the concerns of Furman. …

The petitioner contends, however, that the changes in the Georgia sentencing procedures are only cosmetic, that the arbitrariness and capriciousness condemned by Furman continue to exist in Georgia — both in traditional practices that still remain and in the new sentencing procedures adopted in response to Furman.

. … The provision for appellate review in the Georgia capital sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. … The new Georgia sentencing procedures … focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way, the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.

For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.

It is so ordered.

Excerpted by Sobhi Sidani

Donald P. Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons (2005)

543 U.S. 551 (2005)

Vote: 5-4
Decision: Affirmed
Majority: Kennedy, joined by Stevens, Ginsberg, Breyer, and Souter
Concurrence: Stevens, joined by Ginsberg
Dissent: O’Connor
Dissent: Stevens, joined by Rehnquist and Thomas

Justice Kennedy delivered the opinion of the Court.

This case requires us to address … whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question.

At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. … Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. …

[A]fter receiving information of Simmons’ involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. … Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of interrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene.

The State charged Simmons with burglary, kidnaping, stealing, and murder in the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri’s juvenile court system. … He was tried as an adult. At trial the State introduced Simmons’ confession and the videotaped reenactment of the crime, along with testimony that Simmons discussed the crime in advance and bragged about it later. The defense called no witnesses in the guilt phase. The jury having returned a verdict of murder, the trial proceeded to the penalty phase.

The State sought the death penalty. As aggravating factors, the State submitted that the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant; and involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman. … In mitigation Simmons’ attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons’ mother, father, two younger half brothers, a neighbor, and a friend took the stand to tell the jurors of the close relationships they had formed with Simmons and to plead for mercy on his behalf. Simmons’ mother, in particular, testified to the responsibility Simmons demonstrated in taking care of his two younger half brothers and of his grandmother and to his capacity to show love for them.

During closing arguments, both the prosecutor and defense counsel addressed Simmons’ age, which the trial judge had instructed the jurors they could consider as a mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons’ age cannot drink, serve on juries, or even see certain movies, because “the legislatures have wisely decided that individuals of a certain age aren’t responsible enough.”. … In rebuttal, the prosecutor gave the following response: “Age, he says. Think about age. Seventeen years old. Isn’t that scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite the contrary.” The jury recommended the death penalty … the trial judge imposed the death penalty.

Simmons obtained new counsel, who moved in the trial court to set aside the conviction and sentence … [t]he trial court … denied the motion … the Missouri Supreme Court affirmed. … The federal courts denied Simmons’ petition for a writ of habeas corpus. …

After these proceedings in Simmons’ case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia (2002). Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court agreed … “a national consensus has developed against the execution of juvenile offenders. … ” On this reasoning it set aside Simmons’ death sentence and resentenced him to “life imprisonment without eligibility for probation, parole, or release except by act of the Governor.”. …

We granted certiorari … and now affirm.

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The provision is applicable to the States through the Fourteenth Amendment. Furman v. Georgia (1972). … As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. … By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons. …

[I]n Stanford v. Kentucky (1989), the Court … referred to contemporary standards of decency in this country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the 37 death penalty States permitted the death penalty for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court’s view, indicated there was no national consensus “sufficient to label a particular punishment cruel and unusual.”. …

The same day the Court decided Stanford, it held that the Eighth Amendment did not mandate a categorical exemption from the death penalty for the mentally retarded. Penry v. Lynaugh (1989). … Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. … [T]he Court determined that executing mentally retarded offenders “has become truly unusual, and it is fair to say that a national consensus has developed against it.”. …

Just as the Atkins Court reconsidered the issue decided in Penry, we now reconsider the issue decided in Stanford. The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. This number comprised 12 that had abandoned the death penalty altogether, and 18 that maintained it but excluded the mentally retarded from its reach. … By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. … Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so. …

There is, to be sure, at least one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard Atkins. By contrast … [f]ive States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years … we still consider the change from Stanford to this case to be significant.

. … The number of States that have abandoned capital punishment for juvenile offenders since Stanford is smaller than the number of States that abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force in light of the general popularity of anticrime legislation. … Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change.

The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a simple explanation. When we heard Penry, only two death penalty States had already prohibited the execution of the mentally retarded. When we heard Stanford, by contrast, 12 death penalty States had already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age gained wide recognition earlier than the impropriety of executing the mentally retarded. …

As in Atkins, the objective indicia of consensus in this case—the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal.”. …

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First … “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” Johnson. … The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings. … The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18 … however, a line must be drawn. … The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. …

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”. … It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. … The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. …

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court … is affirmed.

It is so ordered.

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. …

Excerpted by Sobhi Sidani

Kansas v. Marsh (2006)

548 U.S. 163 (2006)

Vote: 5-4
Decision: Reversed and remanded
Majority: Thomas, joined by Roberts, Scalia, Kennedy, and Alito
Concurrence: Scalia
Dissent: Stevens
Dissent: Souter, joined by Stevens, Ginsberg, and Breyer

Justice Thomas delivered the opinion of the Court.

Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. … We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.

Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M. P. burned to death.

The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M. P. …

On direct appeal, Marsh challenged §21–4624(e), which reads: “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances … is not outweighed by any mitigating circumstances … the defendant shall be sentenced to death. … ”  Focusing on the phrase “shall be sentenced to death,” Marsh argued that §21–4624(e) establishes an unconstitutional presumption in favor of death because it directs imposition of the death penalty when aggravating and mitigating circumstances are in equipoise.

The Kansas Supreme Court agreed, and held that the Kansas death penalty statute … is facially unconstitutional. … The court concluded that the statute’s weighing equation violated the Eighth and Fourteenth Amendments of the United States Constitution because, “[i]n the event of equipoise … the death penalty would be required.”. … The Kansas Supreme Court affirmed Marsh’s conviction and sentence for aggravated burglary and premeditated murder of Marry Ane, and reversed and remanded for new trial Marsh’s convictions for capital murder of M. P. and aggravated arson. We granted certiorari … and now reverse the Kansas Supreme Court’s judgment that Kansas’ capital sentencing statute … is facially unconstitutional. …

Having considered the parties’ arguments, we conclude that we have jurisdiction in this case and that the constitutional issue is properly before the Court.

This case is controlled by Walton v. Arizona (1990), overruled on other grounds, Ring v. Arizona (2002). In that case, a jury had convicted Walton of a capital offense. At sentencing, the trial judge found the existence of two aggravating circumstances and that the mitigating circumstances did not call for leniency, and sentenced Walton to death. … The Arizona Supreme Court affirmed, and this Court granted certiorari to resolve the conflict between the Arizona Supreme Court’s decision in State v. Walton, (1989), and the Ninth Circuit’s decision in Adamson v. Ricketts (1988). … Consistent with the Ninth Circuit’s conclusion in Adamson, Walton argued to this Court that the Arizona capital sentencing system created an unconstitutional presumption in favor of death because it “tells an Arizona sentencing judge who finds even a single aggravating factor, that death must be imposed, unless—as the Arizona Supreme Court put it in Petitioner’s case—there are ‘outweighing mitigating factors.’ ”. …

Rejecting Walton’s argument … [t]his Court noted that, as a requirement of individualized sentencing, a jury must have the opportunity to consider all evidence relevant to mitigation, and that a state statute that permits a jury to consider any mitigating evidence comports with that requirement. … The Court also pointedly observed that while the Constitution requires that a sentencing jury have discretion, it does not mandate that discretion be unfettered; the States are free to determine the manner in which a jury may consider mitigating evidence. … So long as the sentencer is not precluded from considering relevant mitigating evidence, a capital sentencing statute cannot be said to impermissibly, much less automatically, impose death. … Indeed, Walton suggested that the only capital sentencing systems that would be impermissibly mandatory were those that would “automatically impose death upon conviction for certain types of murder.”

Contrary to Marsh’s contentions and the Kansas Supreme Court’s conclusions … the question presented in the instant case was squarely before this Court in Walton. Though, as Marsh notes, the Walton Court did not employ the term “equipoise,”. … [T]he dissent in Walton reinforces what is evident from the opinion and the judgment of the Court—that the equipoise issue was before the Court, and that the Court resolved the issue in favor of the State. … [A]lthough Walton did not discuss the equipoise issue explicitly, that issue was resolved by its holding. …

Our conclusion that Walton controls here is reinforced by the fact that the Arizona and Kansas statutes are comparable in important respects. Similar to the express language of the Kansas statute, the Arizona statute at issue in Walton has been consistently construed to mean that the death penalty will be imposed upon a finding that aggravating circumstances are not outweighed by mitigating circumstances. … Like the Kansas statute, the Arizona statute places the burden of proving the existence of aggravating circumstances on the State, and both statutes require the defendant to proffer mitigating evidence.

The statutes are distinct in one respect. The Arizona statute … tasks the defendant with the burden of proving sufficient mitigating circumstances to overcome the aggravating circumstances. … In contrast, the Kansas statute requires the State to bear the burden of proving to the jury, beyond a reasonable doubt, that aggravators are not outweighed by mitigators. … This distinction operates in favor of Kansas capital defendants. Otherwise the statutes function in substantially the same manner and are sufficiently analogous for our purposes. Thus, Walton is not distinguishable from the instant case.

Accordingly, the reasoning of Walton requires approval of the Kansas death penalty statute. At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.

Even if, as Marsh contends, Walton does not directly control, the general principles set forth in our death penalty jurisprudence would lead us to conclude that the Kansas capital sentencing system is constitutionally permissible. Together, our decisions in Furman v. Georgia, (1972) and Gregg v. Georgia, (1976) establish that a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime. … So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed. …

The use of mitigation evidence is a product of the requirement of individualized sentencing. … In Lockett v. Ohio, (1978), a plurality of this Court held that “the Eighth and Fourteenth Amendments require that the sentencer … 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.” (Emphasis in original.) The Court has held that the sentencer must have full access to this “‘highly relevant’” information. Id., at 603 (alteration omitted) (quoting Williams v. New York, 337 U. S. 241, 247 (1949)). Thus, in Lockett, the Court struck down the Ohio death penalty statute as unconstitutional because, by limiting a jury’s consideration of mitigation to three factors specified in the statute, it prevented sentencers in capital cases from giving independent weight to mitigating evidence militating in favor of a sentence other than death. …

In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here. … [T]his Court has held that the States enjoy “ ‘a constitutionally permissible range of discretion in imposing the death penalty.’ ” Blystone [v. PA (1990)]. …

The Kansas death penalty statute satisfies the constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jury’s ability to give independent weight to evidence offered in mitigation.

Kansas’ procedure narrows the universe of death-eligible defendants consistent with Eighth Amendment requirements. Under Kansas law, imposition of the death penalty is an option only after a defendant is convicted of capital murder. … Once convicted of capital murder, a defendant becomes eligible for the death penalty only if the State seeks a separate sentencing hearing … and proves beyond a reasonable doubt the existence of one or more statutorily enumerated aggravating circumstances. … .

. …

Contrary to Marsh’s argument, §21–4624(e) does not create a general presumption in favor of the death penalty in the State of Kansas. Rather, the Kansas capital sentencing system is dominated by the presumption that life imprisonment is the appropriate sentence for a capital conviction. … [T]he State always has the burden of demonstrating that mitigating evidence does not outweigh aggravating evidence. Absent the State’s ability to meet that burden, the default is life imprisonment. … This system does not create a presumption that death is the appropriate sentence for capital murder.

Nor is there any force behind Marsh’s contention that an equipoise determination reflects juror confusion or inability to decide between life and death. … The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for—not a presumption in favor of—death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators—including a finding that aggravators and mitigators are in balance—is a decision that death is the appropriate sentence. …

Justice Souter argues (hereinafter the dissent) that the advent of DNA testing has resulted in the “exoneratio[n]” of “innocent” persons “in numbers never imagined before the development of DNA tests.”. …

But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas’ capital sentencing system. Accordingly, the accuracy of the dissent’s factual claim that DNA testing has established the “innocence” of numerous convicted persons under death sentences—and the incendiary debate it invokes—is beyond the scope of this opinion. …

We hold that the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional. Accordingly, we reverse the judgment of the Kansas Supreme Court, and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Excerpted by Sobhi Sidani

Baze v. Rees (2008)

553 U.S. 35 (2008)

Vote: 7-2
Decision: Affirmed
Plurality: Roberts, joined by Kennedy, and Alito
Concurrence: Alito
Concurrence: Stevens (in judgment)
Concurrence: Scalia (in judgment), joined by Thomas
Concurrence: Thomas (in judgment), joined by Scalia
Concurrence: Breyer (in judgment)
Dissent: Ginsberg, joined by Souter

Chief Justice Roberts announced the judgment of the Court. …

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. … Kentucky has altered its method of execution over time to a more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this case … contend that the lethal injection protocol is unconstitutional under the Eighth Amendment’s ban on “cruel and unusual punishments,” because of the risk that the protocol’s terms might not be properly followed, resulting in significant pain. …

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that “[t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds,” but concluded that Kentucky’s procedure “complies with the constitutional requirements against cruel and unusual punishment.” . … The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

. … A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. It is also the method used by the Federal Government.

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. … The first drug, sodium thiopental (also known as Pentathol) … induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. … The second drug, pancuronium bromide (also known as Pavulon) … inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. … Potassium chloride, the third drug, interferes with … the heart, inducing cardiac arrest. …

Kentucky replaced electrocution with lethal injection in 1998. … Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default if—as is the case with petitioners—the prisoner refuses to make a choice at least 20 days before the scheduled execution. … Kentucky’s protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. … The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. … Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. …

Kentucky’s execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of tubing. If … determined … through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental … a new 3-gram dose of thiopental is administered. … In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing. A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. … An electrocardiogram (EKG) verifies the death of the prisoner. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harper’s execution.

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. …

Baze and Bowling sued three state officials … seeking to have Kentucky’s lethal injection protocol declared unconstitutional. After a 7-day bench trial … the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it “creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.”. … Applying that standard, the court affirmed.

We granted certiorari to determine whether Kentucky’s lethal injection protocol satisfies the Eighth Amendment. We hold that it does.

. … We begin with the principle, settled by Gregg, that capital punishment is constitutional. … It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions. Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain. … Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives. … Kentucky responds that this “unnecessary risk” standard is tantamount to a requirement that States adopt the “ ‘least risk’ ” alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Instead, Kentucky urges the Court to approve the “ ‘substantial risk’ ” test. …

This Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah (1879) … [w]e noted there the difficulty of “defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.”. … [T]he Wilkerson Court simply noted that “it is safe to affirm that punishments of torture … and all others in the same line of unnecessary cruelty, are forbidden” by the Eighth Amendment … each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain. … ” to the death sentence through torture and the like.

We carried these principles further in In re Kemmler (1890). There … we observed that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”. …

Petitioners … concede that “if performed properly,” an execution carried out under Kentucky’s procedures would be “humane and constitutional.”. … That is because … proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. …

Instead, petitioners claim that there is a significant risk … that the sodium thiopental will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment. … We have explained that to prevail on such a claim there must be a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that prevents prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” Farmer v. Brennan, (1994). Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. … [A]n isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”

Much of petitioners’ case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol … and additional monitoring by trained personnel … a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative. Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining “best practices” for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach … would embroil the courts in ongoing scientific controversies … and would substantially intrude … state legislatures in implementing their execution procedures. … Accordingly, we reject petitioners’ proposed “unnecessary risk” standard. …

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.”. … To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.

… [I]t is difficult to regard a practice as “objectively intolerable” when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. … This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. …

In order to meet their “heavy burden” of showing that Kentucky’s procedure is “cruelly inhumane,” Gregg, petitioners point to numerous aspects of the protocol that they contend create opportunities for error. … [P]etitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

. …

[T]he presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems. … In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation. Nor does Kentucky’s failure to adopt petitioners’ proposed alternatives demonstrate that the Commonwealth’s execution procedure is cruel and unusual. …

In any event, the Commonwealth’s continued use of the three-drug protocol cannot be viewed as posing an “objectively intolerable risk” when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. … [T]he comparative efficacy of a one-drug method of execution is not so well established that Kentucky’s failure to adopt it constitutes a violation of the Eighth Amendment.

. …

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

. … Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks … cannot remotely be characterized as “objectively intolerable.” Kentucky’s decision to adhere to its protocol … cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. … The judgment … that Kentucky’s procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.

Excerpted by Sobhi Sidani

Kennedy v. Louisiana (2008)

554 U.S. 407 (2008)

Vote: 5-4
Decision: Reversed and Remanded
Majority: Kennedy, joined by Stevens, Souter, Ginsberg, and Breyer
Dissent: Alito, joined by Roberts, Thomas, and Scalia

Justice Kennedy delivered the opinion of the Court.

. … Patrick Kennedy, the petitioner here, seeks to set aside his death sentence under the Eighth Amendment. He was charged by the respondent, the State of Louisiana, with the aggravated rape of his then-8-year-old stepdaughter. After a jury trial petitioner was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age. … This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death. … [O]n March 2, 1998, petitioner called 911 to report that his stepdaughter, referred to here as L. H., had been raped. … Two neighborhood boys, petitioner told the operator, had dragged L. H. from the garage to the yard, pushed her down, and raped her. …

When police arrived … they found L. H. on her bed … bleeding profusely from the vaginal area. Petitioner told police he had carried her from the yard to the bathtub and then to the bed. Consistent with this explanation, police found a thin line of blood drops in the garage on the way to the house and then up the stairs. Once in the bedroom, petitioner had used a basin of water and a cloth to wipe blood from the victim. This later prevented medical personnel from collecting a reliable DNA sample.

L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. …

Eight days after the crime, and despite L. H.’s insistence that petitioner was not the offender, petitioner was arrested for the rape. The State’s investigation had drawn the accuracy of petitioner and L. H.’s story into question. …

Police … found that petitioner made two telephone calls on the morning of the rape. Sometime before 6:15 a.m., petitioner called his employer and left a message that he was unavailable to work that day. Petitioner called back between 6:30 and 7:30 a.m. to ask a colleague how to get blood out of a white carpet because his daughter had “ ‘just become a young lady.’ “. … At 7:37 a.m., petitioner called B & B Carpet Cleaning and requested urgent assistance in removing bloodstains from a carpet. Petitioner did not call 911 until about an hour and a half later. …

About a month after petitioner’s arrest L. H. was removed from the custody of her mother, who had maintained until that point that petitioner was not involved in the rape. On June 22, 1998, L. H. was returned home and told her mother for the first time that petitioner had raped her. And on December 16, 1999, about 21 months after the rape, L. H. recorded her accusation in a videotaped interview with the Child Advocacy Center.

The State charged petitioner with aggravated rape of a child under La. Stat. Ann. §14:42 … and sought the death penalty. …

The jury having found petitioner guilty of aggravated rape, the penalty phase ensued. …

The jury unanimously determined that petitioner should be sentenced to death. The Supreme Court of Louisiana affirmed. …

The court … noting that, while Coker bars the use of the death penalty as punishment for the rape of an adult woman, it left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment. Because “ ‘children are a class that need special protection,’ ”. …

… [T]he Supreme Court of Louisiana rejected the petitioner’s argument that the death penalty for the rape of a child under 12 years is disproportionate and upheld the constitutionality of the statute. …

We granted certiorari. …

The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins [v. VA (2002)]. … The Court explained in Atkins … and Roper [v. Simmons (2005)] … that the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States (1910). Whether this requirement has been fulfilled is determined … by the norms that “currently prevail.” Atkins. … The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles (1958). …

As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. … It is the last of these, retribution, that most often can contradict the law’s own ends. … When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper. … Though the death penalty is not invariably unconstitutional … the Court insists upon confining the instances in which the punishment can be imposed.

Applying this principle, we held in Roper and Atkins that the execution of juveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had a diminished personal responsibility for the crime … further … the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim. …

Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments. …

The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. …

In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult. … In 1972, Furman invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman’s aftermath only six States reenacted their capital rape provisions. Three States … did so with respect to all rape offenses. Three States … did so with respect only to child rape. … All six statutes were later invalidated under state or federal law. …

Louisiana reintroduced the death penalty for rape of a child in 1995. … Under the current statute, any … intercourse with a child under the age of 13 constitutes aggravated rape and is punishable by death … [m]istake of age is not a defense. … Five States have since followed Louisiana’s lead. … Four of these States’ statutes are more narrow than Louisiana’s. …

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. …

Respondent would include Florida among those States that permit the death penalty for child rape. The state statute does authorize, by its terms, the death penalty for “sexual battery upon … a person less than 12 years of age.” … however, the Supreme Court of Florida held the death penalty for child sexual assault to be unconstitutional. … It acknowledged … that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment,”. …

The statistics in Enmund [v. Florida (1982)] bear a … similarity to the instant case. There eight jurisdictions had authorized imposition of the death penalty solely for participation in a robbery during which an accomplice committed murder … and six defendants between 1954 and 1982 had been sentenced to death for felony murder where the defendant did not personally commit the homicidal assault. … These facts, the Court concluded, “weigh[ed] on the side of rejecting capital punishment for the crime.”. …

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. …

At least one difference between this case and our Eighth Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some States have an “erroneous understanding of this Court’s Eighth Amendment jurisprudence.” Brief for Missouri Governor Matt Blunt et al. as Amici Curiae 10. They submit that the general propositions set out in Coker, contrasting murder and rape, have been interpreted in too expansive a way, leading some state legislatures to conclude that Coker applies to child rape when in fact its reasoning does not, or ought not, apply to that specific crime.

This argument seems logical at first, but in the end it is unsound. In Coker, a four-Member plurality of the Court, plus Justice Brennan and Justice Marshall in concurrence, held that a sentence of death for the rape of a 16-year-old woman, who was a minor under Georgia law, see Ga. Code Ann. §74–104 (1973), yet was characterized by the Court as an adult, was disproportionate and excessive under the Eighth Amendment.

The plurality noted that only one State had a valid statute authorizing the death penalty for adult rape and that “in the vast majority of cases, at least 9 out of 10, juries ha[d] not imposed the death sentence.” Coker. …

Coker’s holding was narrower than some of its language read in isolation. The Coker plurality framed the question as whether, “with respect to rape of an adult woman,” the death penalty is disproportionate punishment. … Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. … We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. …

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society. … [N]o individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. …

We turn … to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures.

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. … The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker. … We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be exercised within the limits of civilized standards.” Trop. … It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. …

Our concern here is limited to crimes against individual persons. We do not address … offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken. …

The same distinction between homicide and other serious violent offenses against the individual informed the Court’s analysis in Enmund … where the Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The Court repeated there the fundamental, moral distinction between a “murderer” and a “robber,” noting that while “robbery is a serious crime deserving serious punishment,” it is not like death in its “severity and irrevocability.”

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but … they cannot be compared to murder in their “severity and irrevocability.”. …

There are … serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins. … This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment. Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. … [C]hild rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. … In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way … the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. …

Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child. …

The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is remanded for further proceedings not inconsistent with this opinion

It is so ordered.

Excerpted by Sobhi Sidani

Atkins v. Virginia (2002)

536 U.S. 304 (2002)

Vote: 6-3
Decision: Reversed and remanded
Majority: Stevens, joined by Ginsberg, Souter, Breyer, O’Connor, and Kennedy
Dissent: Rehnquist, joined by Scalia and Thomas
Dissent: Scalia, joined by Rehnquist and Thomas

JUSTICE STEVENS delivered the opinion of the Court.

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes … however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. [T]he American public … have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution.

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. … Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

. … At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report.

In the penalty phase, the defense relied on one witness … who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.”. … [B]ased on interviews with people who knew Atkins, a review of school and court records, and … that Atkins had a full scale IQ of 59. The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing. … The State presented an expert rebuttal witness … who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. … The jury again sentenced Atkins to death. The Supreme Court of Virginia affirmed. …

Atkins did not argue … that his sentence was disproportionate … but he did contend “that he is mentally retarded and thus cannot be sentenced to death.”. … The court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.”. …

Because of the gravity of the concerns … and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry [v. Lynaugh (1989)] case. …

The Eighth Amendment succinctly prohibits “excessive” sanctions … n Weems v. United States (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”. …

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. …

Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin [v. Michigan (1991)] … We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia,  (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida (1982). …

We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”

. …

Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

. … In [1986] Georgia … led … the enactment of the first state statute prohibiting such executions. In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” In 1989, Maryland enacted a similar prohibition. It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.”. …

Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. Nebraska followed suit in 1998. There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States–South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina–joined the procession. The Texas Legislature unanimously adopted a similar bill, and bills have passed at least one house in other States, including Virginia and Nevada.

It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of reinstating … executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. … Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. … Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. [E]ven among those States that … have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry. … The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.

. …

This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty.

Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial … however … they have diminished capacities to understand and process information. … There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan. … Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

In light of these deficiencies, our death penalty jurisprudence provides two reasons … that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia … identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund [v. Florida 1982]. …

With respect to retribution –the interest in seeing that the offender gets his “just deserts”–the severity of the appropriate punishment necessarily depends on the culpability of the offender. … If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

With respect to deterrence … “it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,'” Enmund. … Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. … Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable … that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. … Thus, executing the mentally retarded will not measurably further the goal of deterrence. …

As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. … Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

. … Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive. …

The judgment of the Virginia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting.

Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.

I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case. After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

. … A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a “slow learne[r],” who showed a “lack of success in pretty much every domain of his life,”  and that he had an “impaired” capacity to appreciate the criminality of his conduct and to conform his conduct to the law. Petitioner’s family members offered additional evidence in support of his mental retardation claim (e.g., that petitioner is a “follower,”). The State contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score … indicating that [petitioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least.” [257 Va. 160, 179, 510 S. E. 2d 445, 457 (1999)]

The jury also heard testimony about petitioner’s 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming.

Under our Eighth Amendment jurisprudence, a punishment is “cruel and unusual” if it falls within one of two categories: “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted,” Ford v. Wainwright (1986), and modes of punishment that are inconsistent with modern “standards of decency,” as evinced by objective indicia, the most important of which is “legislation enacted by the country’s legislatures,” Penry v. Lynaugh (1989).

The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any special status under the law at that time. They, like lunatics, suffered a “deficiency in will” rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769). …

The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles,  (1958). …

The Court pays lipservice to these precedents as it miraculously extracts a “national consensus” forbidding execution of the mentally retarded … from the fact that 18 States–less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)–have very recently enacted legislation barring execution of the mentally retarded …

But let us accept, for the sake of argument, the Court’s faulty count. That bare number of States alone–18–should be enough to convince any reasonable person that no “national consensus” exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to “consensus”? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on “evolving standards” grounds …

The Court attempts to bolster its embarrassingly feeble evidence of “consensus” with the following: “It is not so much the number of these States that is significant, but the consistency of the direction of change.” (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court’s “consistency-of-the-direction-of-change” point should be recast into the following unimpressive observation: “No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years.”

. …

But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. …

Beyond the empty talk of a “national consensus,” the Court gives us a brief glimpse of what really underlies today’s decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. …

Today’s opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court’s assumed power to invent a death-is-different jurisprudence. None of those requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. …

Excerpted by Sobhi Sidani

Glossip v. Gross (2015)

576 U.S. 863 (2015)

Vote: 5-4
Decision: Affirmed
Majority: Alito, joined by Roberts, Scalia, Kennedy, and Thomas
Concurrence: Scalia, joined by Thomas
Concurrence: Thomas, joined by Scalia
Dissent: Breyer, joined by Ginsberg
Dissent: Sotomayor, joined by Ginsberg, Breyer and Kagan

Justice Alito delivered the opinion of the Court.

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court … contending that the method of execution … creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain. … District Court denied four prisoners’ application … finding that they had failed to prove that midazolam is ineffective … Court of Appeals … affirmed. …

For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. … Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

The death penalty was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights. …

While methods of execution have changed over the years, “[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” [Baze v Rees (2008)]. … In Wilkerson v. Utah(1879), the Court upheld a sentence fo death by firing squad. In In re Kemmler [(1890)] … the Court rejected a challenge to the use of the electric chair … holding even when presented with a case in which a State’s initial attempt to execute a prisoner by electrocution was unsuccessful. … Most recently, in Baze … seven Justices agreed that the three-drug protocol … does not violate the Eighth Amendment.

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional … [a]nd because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. … Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

Baze cleared any legal obstacle to use of the most common three-drug protocol. … But a practical obstacle soon emerged … [t]he sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. … That effort proved successful, and in January 2011, the company announced that it would exit the sodium thiopental market entirely. … States … replaced sodium thiopental with pentobarbital, another barbiturate. …

Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug to stop selling it for use in executions. …

Unable to acquire either sodium thiopental or pentobarbital, some States have turned to midazolam, a sedative in the benzodiazepine family of drugs. …

The Lockett execution caused Oklahoma to implement new safety precautions as part of its lethal injection protocol. … The investigation … recommended several changes … and Oklahoma adopted a new protocol. … That protocol allows the Oklahoma Department of Corrections to choose among four different drug combinations. The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralytic agent and potassium chloride. The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case. The protocol also includes procedural safeguards to help ensure that an inmate remains insensate to any pain. … Those safeguards include: (1) the insertion of both a primary and backup IV catheter, (2) procedures to confirm the viability of the IV site, (3) the option to postpone an execution if viable IV sites cannot be established within an hour, (4) a mandatory pause between administration of the first and second drugs, (5) numerous procedures for monitoring the offender’s consciousness, including the use of an electrocardiograph and direct observation, and (6) detailed provisions with respect to the training and preparation of the execution team. …

In November 2014 … Richard Glossip, Benjamin Cole, John Grant, and Warner—filed a motion for a preliminary injunction. All four men had been convicted of murder and sentenced to death by Oklahoma juries. … The Oklahoma Court of Criminal Appeals affirmed the murder conviction and death sentence of each offender. Each of the men then unsuccessfully sought both state postconviction and federal habeas corpus relief. Having exhausted the avenues for challenging their convictions and sentences, they moved for a preliminary injunction against Oklahoma’s lethal injection protocol.

. …

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., (2008). The parties agree that this case turns on whether petitioners are able to establish a likelihood of success on the merits.

The Eighth Amendment … prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. … Baze first concluded that prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is “ ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ”. … To prevail on such a claim, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’. … The controlling opinion also stated that prisoners “cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.” … prisoners must identify an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”. …

The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.

The challenge in Baze failed both because the Kentucky inmates did not show that the risks they identified were substantial and imminent … and because they did not establish the existence of a known and available alternative method of execution that would entail a significantly less severe risk. … Petitioners’ arguments here fail for similar reasons. First, petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution. Second, they have failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering. We address each reason in turn.

Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. … [T]he record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so. Petitioners … have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. … Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze. …

. …

We also affirm for a second reason: The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution.

. … When a method of execution is authorized under state law, a party contending that this method violates the Eighth Amendment bears the burden of showing that the method creates an unacceptable risk of pain. Here, petitioners’ own experts effectively conceded that they lacked evidence to prove their case beyond dispute. …

Based on the evidence that the parties presented to the District Court, we must affirm. …

Petitioners’ remaining arguments about midazolam all lack merit. …

… [P]etitioners argue that there is no consensus among the States regarding midazolam’s efficacy because only four States … have used midazolam as part of an execution. Petitioners rely on the plurality’s statement in Baze that “it is difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely tolerated,”. … But while the near-universal use of the particular protocol at issue in Baze supported our conclusion that this protocol did not violate the Eighth Amendment, we did not say that the converse was true. … That argument … would hamper the adoption of … more humane methods and … prevent States from adapting to changes in the availability of suitable drugs.

… [P]etitioners argue that difficulties with Oklahoma’s execution of Lockett … establish that midazolam is sure or very likely to cause serious pain. We are not persuaded … 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems. … Moreover, Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution concluded that the difficulties were due primarily to the execution team’s inability to obtain an IV access site. …

For these reasons, the judgment of the Court of Appeals for the Tenth Circuit is affirmed.

It is so ordered.

Excerpted by Sobhi Sidani

Note: Glossip had another hearing before the U.S. Supreme Court on October 9, 2024. On February 25, 2025, the Court, in a 5-3 opinion, determined they had jurisdiction to hear this appeal and ruled that under precedent (Napue v. Illinois, 1959) when prosecutors knowingly use false testimony they violate the Constitution. See https://www.scotusblog.com/2025/02/supreme-court-grants-richard-glossip-new-trial-in-capital-case/, last accessed on March 3, 2025. At the time of writing, Glossip remained in prison.

City of Grants Pass v. Johnson (2024)

603 U.S. ___ (2024)

Vote: 6-3
Decision: Reversed and remanded
Majority: Gorsuch, joined by Roberts, Kavanaugh, Barrett, Alito, and Thomas
Dissent: Sotomayor, joined by Kagan and Jackson

Justice Gorsuch delivered the opinion of the Court.

Many cities across the American West face a homelessness crisis. … Like many local governments, the city of Grants Pass, Oregon, has pursued a multifaceted approach. Recently, it adopted various policies aimed at “protecting the rights, dignity[,] and private property of the homeless.”. … It appointed a “homeless community liaison” officer charged with ensuring the homeless receive information about “assistance programs and other resources” available to them through the city and its local shelter. … And it adopted certain restrictions against encampments on public property. … The Ninth Circuit, however, held that the Eighth Amendment’s Cruel and Unusual Punishments Clause barred that last measure. With support from States and cities across the country, Grants Pass urged this Court to review the Ninth Circuit’s decision. We take up that task now.

. … As the number of homeless individuals has grown, the number of homeless encampments across the country has increased as well, “in numbers not seen in almost a century.”. … As the number and size of these encampments have grown, so have the challenges they can pose for the homeless and others. We are told, for example, that the “exponential increase in … encampments in recent years has resulted in an increase in crimes both against the homeless and by the homeless.” Brief for California State Sheriffs’ Associations. … Some city officials indicate that encampments facilitate the distribution of drugs like heroin and fentanyl, which have claimed the lives of so many Americans in recent years. … Without running water or proper sanitation facilities, too, diseases can sometimes spread in encampments and beyond them. …

Nor do problems like these affect everyone equally. Often, encampments are found in a city’s “poorest and most vulnerable neighborhoods.”. … With encampments dotting neighborhood sidewalks, adults and children in these communities are sometimes forced to navigate around used needles, human waste, and other hazards to make their way to school, the grocery store, or work. …

As many cities see it, even as they have expanded shelter capacity and other public services, their unsheltered populations have continued to grow. … [C]ities tell us that “the vast majority of their homeless populations are not actively seeking shelter and refuse all services.”. … Some may reject shelter because accepting it would take them further from family and local ties … because of concerns for their safety or the rules some shelters impose regarding curfews, drug use, or religious practices. … But whatever the causes, local governments say, this dynamic significantly complicates their efforts to address the challenges of homelessness.

Rather than focus on a single policy to meet the challenges associated with homelessness, many States and cities have pursued a range of policies and programs … some have reinvested in mental-health and substance-abuse treatment programs … others have chosen to pair these efforts with the enforcement of laws that restrict camping in public places, like parks, streets, and sidewalks. …

Laws like those are commonplace. By one count, “a majority of cities have laws restricting camping in public spaces,” and nearly forty percent “have one or more laws prohibiting camping citywide.”. … Some have argued that the enforcement of these laws can create a “revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”

But many cities take a different view … that … these public-camping regulations are not usually deployed as a front-line response “to criminalize homelessness.”. … Instead, they are used to provide city employees with the legal authority to address “encampments that pose significant health and safety risks” and to encourage their inhabitants to accept other alternatives like shelters, drug treatment programs, and mental-health facilities. …

The federal government also restricts “the storage of … sleeping bags,” as well as other “sleeping activities,” on park lands. …

Five years ago, the U. S. Court of Appeals for the Ninth Circuit took one of those tools off the table. In Martin v. Boise (2019) … the Eighth Amendment’s Cruel and Unusual Punishments Clause barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked “access to alternative shelter.” Id., at 615. That “access” was lacking, the court said, whenever “ ‘there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.’ ”. … No other circuit has followed Martin’s lead with respect to public-camping laws. …

. … Many cities … report that, rather than help alleviate the homelessness crisis, Martin injunctions have inadvertently contributed to it. The numbers of “[u]nsheltered homelessness,” they represent, have “increased dramatically in the Ninth Circuit since Martin.” … they say, Martin injunctions have contributed to this trend by “weaken[ing]” the ability of public officials “to persuade persons experiencing homelessness to accept shelter beds and [other] services.”. …

Like many American cities, Grants Pass has laws restricting camping in public spaces. Three are relevant here. The first prohibits sleeping “on public sidewalks, streets, or alleyways.”. … The second prohibits “[c]amping” on public property. … The third prohibits “[c]amping” and “[o]vernight parking” in the city’s parks. … An initial violation may trigger a fine … multiple citations may be subject to an order barring them from city parks for 30 days … in turn, violations of those orders can constitute criminal trespass, punishable by a maximum of 30 days in prison and a $1,250 fine. …

Neither of the named plaintiffs before us has been subjected to an order barring them from city property or to criminal trespass charges. … Still, shortly after the panel decision in Martin, two homeless individuals, Gloria Johnson and John Logan, filed suit challenging the city’s public-camping laws. … They claimed, among other things, that the city’s ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause.

… [T]he Eighth Amendment’s prohibition against “cruel and unusual punishments” focuses on what happens next. That Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impos[e] for the violation of criminal statutes.” Powell v. Texas (1968). … The Cruel and Unusual Punishments Clause focuses on the question what “method or kind of punishment” a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense. … To the extent the Constitution speaks to those other matters, it does so, as we have seen, in other provisions.

Nor, focusing on the criminal punishments Grant Pass imposes, can we say they qualify as cruel and unusual. Recall that, under the city’s ordinances, an initial offense may trigger a civil fine. Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine. … None of the city’s sanctions qualifies as cruel because none is designed to “superad[d]” “terror, pain, or disgrace.” Bucklew [v. Precythe (2019)]. … Nor are the city’s sanctions unusual, because similar punishments have been and remain among “the usual mode[s]” for punishing offenses throughout the country. …

Instead, the plaintiffs and the dissent pursue an entirely different theory … echoing the Ninth Circuit in Martin, they insist one notable exception exists.

In Robinson v. California, (1962), the plaintiffs and the dissent observe, this Court addressed a challenge to a criminal conviction under a California statute providing that “ ‘[n]o person shall … be addicted to the use of narcotics.’ “. … The Court recognized that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.”. … But, the Court reasoned, when punishing “ ‘status,’ ” “[e]ven one day in prison would be … cruel and unusual.”. …

Bypassing Mr. Robinson’s primary Due Process Clause argument, the Court charted its own course, reading the Cruel and Unusual Punishments Clause to impose a limit not just on what punishments may follow a criminal conviction but what a State may criminalize to begin with. It was a view unprecedented in the history of the Court before 1962. … Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit’s course since Martin. In Robinson, the Court expressly recognized … that they may criminalize knowing or intentional drug use even by those suffering from addiction. … The Court held only that a State may not criminalize the “ ‘status’ ” of being an addict. … In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson … Grants Pass forbids actions like “occupy[ing] a campsite” on public property “for the purpose of maintaining a temporary place to live.”. … Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building … because laws like these do not criminalize mere status, Robinson is not implicated.

. … Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense “involuntary,” for some homeless persons cannot help but do what the law forbids. … To rule otherwise, the argument goes, would “ ‘effectively’ ” allow cities to punish a person because of his status. …

The problem is, this Court has already rejected that view. In Powell v. Texas (1968), the Court confronted a defendant who had been convicted under a Texas statute making it a crime to “ ‘get drunk or be found in a state of intoxication in any public place.’ ”. … Like the plaintiffs here, Mr. Powell argued that his drunkenness was an “ ‘involuntary’ ” byproduct of his status as an alcoholic. … The Court did not agree.

. … This case is no different from Powell. … Just as there, the plaintiffs here seek to extend its rule beyond laws addressing “mere status” to laws addressing actions that … might “in some sense” qualify as “ ‘involuntary.’ ”. … And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding. … [N]othing in today’s decision prevents States, cities, and counties from going a step further and declining to criminalize public camping altogether.

. … Under Martin, judges take from elected representatives the questions whether and when someone who has committed a proscribed act with a requisite mental state should be “relieved of responsibility” for lack of “moral culpability.”. …

Start with this problem. Under Martin, cities must allow public camping by those who are “involuntarily” homeless. … Cities across the West report that the Ninth Circuit’s ill-defined involuntariness test has proven “unworkable.”. … The Ninth Circuit said a city needs to consider individuals “involuntarily” homeless (and thus entitled to camp on public property) only when the overall homeless population exceeds the total number of “adequate” and “practically available” shelter beds. … City officials report that it can be “monumentally difficult” to keep an accurate accounting of those experiencing homelessness on any given day. … [C]ities face questions over which shelter beds count as “adequate” and “available” under Martin. … Is a bed “available” to a smoker if the shelter requires residents to abstain from nicotine, as the shelter in Grants Pass does?. …

… [S]ince the trial court entered its injunction against Grants Pass, the city shelter reports that utilization of its resources has fallen by roughly 40 percent. … Many other cities offer similar accounts about their experiences after Martin, telling us the decision has made it more difficult, not less, to help the homeless accept shelter off city streets. … Martin has undermined their efforts to balance conflicting public needs and mired them in litigation at a time when the homelessness crisis calls for action.

… [M]any substantive legal protections and provisions of the Constitution may have important roles to play when States and cities seek to enforce their laws against the homeless. … The only question we face is whether one specific provision of the Constitution—the Cruel and Unusual Punishments Clause of the Eighth Amendment—prohibits the enforcement of public-camping laws.

. … [T]he dissent does not dispute that the law Robinson faced was an anomaly, punishing mere status. … And the dissent all but ignores Robinson’s own insistence that a different result would have obtained in that case if the law there had proscribed an act rather than status alone. …

Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not. … The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Excerpted by Sobhi Sidani