Why Race Matters in Louisiana’s Capital Punishment System

In a scathing critique of McCleskey v. Kemp (1987), the Los Angeles Times compared the plurality decision to the likes of Dred Scott (1857), Plessy (1896), and Korematsu (1894). “Pilate-like, the Rehnquist Supreme Court has washed its hands of any responsibility to reject the death penalty on racist grounds” (Bedau, 1987). Even when presented with a comprehensive study of racial discrimination in capital cases, the Court ruled 5-4 that it was irrelevant to the case at hand, and thus sentenced Warren McCleskey, an African American, to death. Justice Powell, who wrote the majority opinion, later told a biographer that he regretted his decision, saying that the death penalty should be abolished altogether (as cited in Pierce & Radelet, 2011). If State legislatures across the U.S. joined in the spirit of Powell’s words, the death penalty would no longer disproportionately send African Americans to death row. Short of abolition, legislatures enacted new statutes to reduce the effects of racial bias in the aftermath of Gregg v. Georgia (1976). Sadly, race still plays a significant role in sentencing rates, especially in rural areas of southern states faulted by a segregationist past. Louisiana, in particular, has one of the most alarming rates of blacks sentenced to death row. While this does not immediately indicate racism, it questions the legitimacy of a system largely crafted by racist white Southerners after Reconstruction. Hence, Louisiana’s enduring legacy of Jim Crow inequality has rendered post-Gregg reform inadequate in mitigating race as a factor in capital punishment cases.

The era of de jure equality ushered in by Reconstruction was only seen as a rallying cry for disillusioned white Southerners in the 1870s. After years of Republican “carpetbagger” rule of the State government, the removal of federal troops from Louisiana allowed for an angry white citizenry to exploit a political power vacuum. Sarma and Smith (2012) note this exchange of power by a marked contrast in Southern politics, most notably seen at the 1898 State Constitutional Convention. White delegates from around the state adopted a plan to disenfranchise “as many Negroes and as few whites as possible” (as cited in Sarma & Smith, 2012). The early roots of Jim Crow were thus planted by restricting access to the ballot box and subduing other forms of political participation, via legal discrimination. For example, leaders at the Convention crafted a criminal code for their new government that allowed for non-unanimous jury verdicts in non-capital cases. One contemporary account explains the rationale: “As a [black] juror…if a negro be on trial for any crime, he becomes at once his earnest champion, and a hung jury is the usual result” ( as cited in Sarma & Smith, 2012). Thus, in a situation where the 11 members of a jury are white, the remaining black juror could not block a guilty verdict, essentially making his role useless. Convicting innocent black defendants became easier since the jury was no longer one of his peers, but rather one of his trespassers. And whenever legalized racism was insufficient, whites resorted to overt intimidation in the form of lynching. Between 1889 and 1896, there were ninety-five lynchings reported in Louisiana, with blacks representing 85% of the victims (Sarma & Smith, 2012). Perhaps not surprisingly, four of the five places with the highest frequency of lynching in the U.S. were in Louisiana parishes (Robertson, 2015). Indeed, the noose became more than just a symbol of violence, fear, and suppression. With the nearly one-hundred-year reign of Jim Crow in the South, the noose became a perpetual reminder of cyclical inequality, violence, inferiority, and hopelessness for African Americans.

Today, the wounds inflicted on Southern life by racial tensions are far from healed. To be sure, Southerners largely abandoned public lynchings and “white only” signs with a gradual changing of social norms after the Civil Rights Act of 1964. Explicit racism in the South is a dying practice now reserved mostly for extremist groups like the Ku Klux Klan. However, the remnants of the past have been resurrected habitually in some parts of the state. The rural town of Jena in La Salle Parish, for instance, was mired by racial unrest in 2006, when six black male students attacked Justin Barker, a white student, in their high school courtyard. The altercation started after black students noticed three hanging nooses from an oak tree in front of the school. While school officials denied any claims of segregation, the boys, now known as the “Jena Six,” claimed that, in practice, white students were not open to allowing black students to sit under the oak tree during breaks (Coll, 2007). The events surrounding the schoolyard violence are murky at best since conflicting eyewitness accounts provided dubious evidence for a trial. Ultimately, the prosecution dropped all of the charges against the Jena Six. But one thing is undoubtedly known:  for white Southerners, “small town justice in the Deep South” often means criminalizing blacks regardless of guilt (Coll, 2007). And whenever retributive justice involves capital punishment, prosecutors are eager to pursue it. In fact, “cowboy” style prosecutors (that is, prosecutors who seek capital cases with fervor) are quite ubiquitous throughout Louisiana’s justice system. Jefferson Parish prosecutors are especially notorious for their readiness to sentence people to death, “which has put more people on Louisiana’s death row in recent years than any other parish” (Gettleman, 2003).  In 2003, three years before the Jena Six incident, two assistant district attorneys from Jefferson Parish “wore neckties depicting a hangman’s noose and grim reaper,” at the trial of a sixteen-year-old charged with first-degree murder (Gettleman, 2003). Another assistant district attorney in Jefferson Parish “displayed a toy electric chair in his office with five picture cutouts of each individual he had sent to death row. All were black” (Richey, 2007, p. 2). In any case, it would be hard to argue these displays of dark humor do not represent racist views of blacks deserving of death and whites being keepers of “law and order.”

At a minimum, it is clear that some Louisiana prosecutors are eager to seek the death penalty, especially when the defendant is African American. Unfortunately,

bloodthirsty prosecutors are not the only injustices that blacks face during trial. Blacks are consistently denied jury participation, even in areas where they are the majority. One study found that in Caddo Parish, where blacks represent half of the population, they constitute only 25% of the juries in capital cases (Sarma & Smith, 2012). A disparity that large creates an opportunity for an ambitious prosecutor to use racial appeals to lead an all-white jury towards a guilty verdict. Allen Snyder, who was on trial in Jefferson Parish for first-degree murder, faced a similar situation. All five prospective black jurors were dismissed by the assistant district attorney during preliminary hearings, resulting in an all-white jury (Richey, 2007, p. 2). More disturbingly, the prosecutor used implicit racial appeals before and during the trial when articulating comparisons between the Snyder case and the O.J. Simpson case. The defense attorney for Snyder later wrote that the prosecution “knew that by selecting an all-white jury there was a likelihood that his appeal to race would play on the resentments [lingering from the Simpson acquittal] of at least some members of the jury” (as cited in Richey, 2007, p. 2).  While Snyder was clearly guilty, the prosecution’s tactics were unethical and unconstitutional. It is not possible to be guaranteed a fair trial (Sixth Amendment right) or equal protection under the law (Fourteenth Amendment) when the very system of justice deliberately creates an uneven playing field. The implications of such a system are not only unfair, but it increases the chance of wrongful conviction. Of the 155 death sentences ordered by Louisiana courts, 127 of them—82%— were later reversed (Editorial Board, 2016, p. 18). Most of the defendants were later exonerated due to a violation of the “defendant’s constitutional rights, such as prosecutorial misconduct, improper jury instructions and incompetent lawyering” (Editorial Board, 2016, p. 18).

The disparities in sentencing rates extend beyond Jefferson and Caddo Parishes. The trend generally holds statewide, both pre-Furman and post-Gregg. Between 1772 and 1961, of the 632 executions that took place in Louisiana, 77% of them (578) resulted in the execution of black defendants (race of the victim was not recorded according to the study) (Pierce & Radelet, 2011). Looking to the race of the victim reveals more disparities. Between 1983 and 2010, 85% of defendants executed were convicted of killing white victims (Pierce & Radelet, 2011). It would seem plausible to dismiss such statistics on the premise that blacks just commit murder at a higher rate than whites. Further, some would point to evidence that blacks murder whites at a higher rate than whites murder other whites. Pierce & Radelet’s study refutes those arguments. First, the study examined death sentences in East Baton Rouge Parish, which is the third largest parish in the state by population (behind Orleans and Jefferson Parishes). After cross-referencing similar cases involving white and black victims that have similar aggravating factors and controlling all other variables, “those who kill whites are still more than twice as likely to be sentenced to death as those who kill blacks” (Pierce & Radelet, 2011).  Second, from 1991 to 2001, 82.8% of homicide victims were black, “but only 47.8% of those sentenced to death since 1990 were convicted of killing blacks” (Pierce & Radelet, 2011). These statistics show that blacks do not murder at a higher rate than whites. In addition, it also shows that the white-on-black crime dyad is not punished as often as the black-on-white or white-on-white dyads (Pierce & Radelet, 2011).

Reforms in the post-Gregg era, then, have not solved the problems of racial bias. The de facto death penalty moratorium ended when the U.S. Supreme Court approved of Georgia’s new sentencing schemes in the landmark case Gregg v. Georgia (1976). Significant changes in its criminal code included, among other things, a mandatory automatic appeals process for capital cases that ended in a conviction. Louisiana remodeled their law similarly, while also adding “Rule 28,” requiring that the “district attorney and the defendant shall file sentence review memoranda addressed to the propriety of the sentence” (Sarma, Bidish & Cohn, 2009). These Sentence Review Memoranda (SRM) lists all past capital cases within the district that the case at hand was tried in. The Louisiana Supreme Court then conducts a proportionality review, using the SRMs to examine inconsistencies or arbitrariness with the lower court’s decision. However, Sarma et al., (2009) has noted that this process is “woefully deficient.” Districts that have either never carried out a death sentence or have tried very few do not serve well in a proportionality review. Lafayette Parish, for example, has only tried one death penalty case since 1950. The SRM in Lafayette’s most recent capital case, State v. Prejean (2008), could only compare elements of arbitrariness with a case that was nearly sixty years old—not to mention it was also pre-Gregg (Sarma et al., 2009). Another problem with Louisiana’s proportionality review is its focus on cases that ended with the defendant sentenced to death. Cases that show similarity in the type of crime committed or the number of aggravations present are not considered if they only resulted in life imprisonment. Chief Justice Krivosha is most critical of Louisiana’s review system by using the analogy of public transportation; it is erroneous to conclude that “since everyone in the back of the bus looks alike, there is no discrimination” because it is also necessary “to look at who is riding in the front of the bus as well in order to determine whether persons in the back are being discriminated against” (as cited in Sarma et al., 2009). SRM’s are thus ineffective because they do not include cases with similar criminal elements or cases that did not result in the death penalty. Moreover, defendants from districts with limited history of the death penalty are more likely not to receive a fair appeals challenge.

Conventional wisdom and scholarly opinions have advocated that the death penalty reduces murder rates in certain instances. The fairness of the death penalty, on the other hand, is an entirely different issue. Some states may not have issues with discrimination in their justice systems; indeed, some of the post-Gregg reforms may have been effective at reducing racial bias. But if the death penalty cannot be applied equally across all fifty states, then it is hard to argue for anything less than its complete abandonment. Not only would retention create issues of arbitrariness based on geography, but it would violate the fundamentals of a justice system based on equal protection under the law. In the case of Louisiana, not only is it evident that there exists racial bias, but it is also the case that the archaic system was purposefully crafted to target blacks more than whites. Such a system is immoral, unjust, and flat out racist. Only when Louisiana lawmakers realize the racist history of the death penalty can there be a movement towards abolition.



  1. Bedau, A.H. “Someday Mccleskey will be Death Penality’s Dred Scott.” Los Angeles Times, 1 May 1987, http://articles.latimes.com/1987-05-01/local/me-1592_1_death-penalty.
  2. Coll, S. “Disparities.” The New Yorker, 8 Oct. 2007, http://www.newyorker.com/magazine/2007/10/08/disparities.
  3. Editorial Board. “Louisiana’s Color Coded Death Penalty.” The New York  Times, 9 May 2016. https://www.nytimes.com/2016/05/09/opinion/louisianas-color-coded-death-penalty.html?_r=0.
  4. Gettleman, J. “Prosecutor’s Morbid Neckties Stir Criticism.” The New York Times, 5 Jan. 2003, http://www.nytimes.com/2003/01/05/us/prosecutors-morbid-neckties-stir-criticism.html.
  5. Pierce, L. G., & Radelet, L. M. “Death Sentencing in East Baton Rouge Parish.” 2011, 1990-2008. Louisiana Law Review.
  6. Richey, W. “How Hard Can Judges Crack Down on Bias?” Christian Science Monitor, pp. 2.
  7. Robertson, C. “History of Lynching in the South Documents Nearly 4,000 Names.” The New York Times, 10 Feb 2015. http://www.nytimes.com/2015/02/10/us/history-of-lynchings-in-the-south-documents-nearly-4000-names.html.
  8. Sarma, J. B. & Smith, J. R. “How and Why Race Continues to Influence The Administration of Criminal Justice in Louisiana. 2012, Louisiana Law Review.

                 – – – & Cohen, B. G. (2009). “Struck by Lightning: Walker v. Georgia and Louisiana’s Proportionality Review of Death Sentences. Southern Louisiana Law Review.

Cruel and Unusual History: Exploring the Case Law that Shaped the Eighth Amendment

The American judicial system ensures the continuation of democracy. But the democracy of the American judicial system is entirely dependent on the civil liberties housed in the Bill of Rights. Within the Bill of Rights are special protections for everyone involved in the judicial system, included those who are criminally accused. Everyone is entitled to the right not to incriminate oneself (Fifth Amendment), the right to a fair, speedy public trial and to counsel (Sixth Amendment), the right to be protected from cruel and unusual punishment (Eighth Amendment), and the right to due process (Fourteenth Amendment). The Eighth Amendment is perhaps the most enigmatic clause in the Constitution. This paper will explore how the court interprets such an ambiguous clause and how this has developed over time, specifically exploring its application to capital punishment and to a much lesser extent torture.

In order to analyze how the Eighth Amendment has changed over time, it is necessary to examine the amendment itself. The entirety of the Eighth Amendment reads as such: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] For the purposes of this paper, only the segment  “nor cruel and unusual punishments inflicted” will be examined. The Eighth Amendment on its face is incredibly vague. It contains no definition for “cruel and unusual”, nor any procedure for determining what is and is not “cruel and unusual.” While this is not atypical for constitutional amendments, it is particularly troublesome in the case of the Eighth Amendment because it is not explicitly clear the extent to which the phrase should be interpreted. Torture, for instance, falls into this gray area. Historical context suggests that torture (as an interrogation method, not specifically as a punishment) was considered “cruel and unusual,” but this intention is not necessarily enough to determine if torture is explicitly incompatible with the Eighth Amendment.[ii] Torture was certainly practiced in the U.S. after the enactment of the Eighth Amendment, so even if there was historical context to suggest the Framers intended to outlaw torture, the reality and the lack of enforcement of this clause establishes an alternate precedent. Capital punishment is another issue under the Eighth Amendment. However, more clearly, all evidence suggests that capital punishment was never meant to be outlawed by the Eighth Amendment. But this leads to the question, if executing a criminal is not “cruel and unusual,” what is? Torture and capital punishment are two of the most glaring examples of “cruel and unusual” punishments to a modern reader that were permitted by the constitution and case law for an extended period of time.

For the purposes of this paper, torture and capital punishment must be briefly defined. Torture is the infliction of pain either as a punishment or an interrogative method. While the two are obviously linked, they are legally separate and governed by different laws and precedents. Torture as an interrogative method is governed by the Fifth Amendment, which secures the right to due process and a fair trial. Under the right to a fair trial comes legal procedures for what is constitutional in regards to interrogation; torture as an interrogative method will not be explored in this paper as it does not pertain to the Eighth Amendment. Capital punishment is the government sanctioned execution of a criminal as punishment for their crime. The death penalty is a sentence given by either a judge or a jury after a trial. The method of execution has evolved over time, but it is currently lethal injection. The humaneness and legality of the specific forms of execution will be examined only when pertinent to the development of the “cruel and unusual” clause.

Until Wilkerson v. Utah (1878), there was no case law precedent for the interpretation of “cruel and unusual punishment.” In 1877, Wallace Wilkerson shot and killed William Baxter. He was tried for premeditated murder in a Utah criminal court. Wilkerson was sentenced to death; a Utah statute (passed in 1862) allowed for anyone sentenced to be executed to choose to be shot, hanged, or beheaded. Wilkerson chose to be shot. The case was then appealed on a writ of error to the Supreme Court (as Utah was a territory at the time and its authority not yet clearly defined), who upheld that no error had been made and that Wilkerson’s death sentence and mode of death were constitutional. Justice Nathan Clifford delivered the opinion of the court, in which he explicitly stated “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 to the Constitution.”[iii] This establishes a strong precedent for the application Eighth Amendment. The court is clear in stating that torture and any punishment like it violates the Eighth Amendment. While establishing some type of definition, Clifford still concedes that it is extremely difficult to “define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted.”[iv] The court does not offer a clear guideline for how to determine if something is “cruel and unusual,”, but rather admit that because it is impossible because the framers intent cannot be fully determined. Still, they establish that torture as a punishment violates the amendment., but reaffirm that capital punishment does not. Clifford also expressly states that death by shooting “is not included in that category within the meaning of the Eighth Amendment.”[v] In doing so, he references the “unusual” aspect of the Eighth Amendment. Clifford argues that because shooting is a common form of execution for military crimes, it is therefore not an unusual punishment under the Eighth Amendment.[vi] The usualness of a punishment is rarely dealt with under the Eighth Amendment (as methods of execution are typically highly regulated), but Wilkerson lays out a precedent for evaluating it. The commonality of a type of execution therefore determines whether or not it is “unusual”, but this is not without problems of its own. There is not strict guideline for determining commonality besides opinion. Wilkerson may have started to tackle the various issues of the Eighth Amendment, but it is not without its own hypocrisy. As pointed out by Gilbert King in an op-ed for the New York Times, Wilkerson’s death was ironic in light of the precedent his case established. The firing squad did not instantly kill Wilkerson; instead, he slowly bled out over a half hour.[vii] At this time, there was no precedent for whether a prolonged death constituted “cruel and unusual,” but it would more than likely be considered torture.

The issue of prolonged death was quickly remedied in 1890, with the case of In Re Kemmler. William Kemmler was convicted of first degree murder and sentenced to death by electric chair, the first New York citizen to be executed in such a manner. His attorney filed an emergency writ of habeas corpus to stay the execution to examine what he believed to be violations to the Eighth and Fourteenth Amendments. The case traveled through the New York Court of Appeals, after which it was appealed to the Supreme Court on a writ of error. In the opinion, written by Chief Justice Fuller, the court goes into detail about why the state of New York choose electrocution as a method of execution, citing state legislation that found electrocution to be the most humane form of execution. In exploring the idea of a human execution, the court gives a firmer definition of “cruel and unusual”, stating:

“Punishments 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. The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of the common knowledge which has stamped certain punishments as such”[viii]

This establishes a baseline definition for the term “cruel.” Firstly, the court explicitly states that both torture and lingering death are cruel. The court also sets an important precedent for determining if a punishment is cruel or not. If a punishment can be deemed either “inhumane” or “barbarous” or has a motive that is “something more than the mere extinguishment of life,” then it is cruel. This reiterates the justification for the electric chair being found not cruel, as the court referenced extensive research done that proved its humaneness. The definition of “cruel” is limited in the sense that it in large part deals with capital punishment, due to the phrase “extinguishment of life.” It is also further limited by the adjectives “inhumane” and “barbarous” which, like “cruel”, lack a clear legal definition. Despite declaring torture a form of punishment and developing a cruelty test, the court fails to specifically define “cruel” outside of its relationship to capital punishment. Dealing specifically with capital punishment, the court declares that it does not fit the Constitution’s definition of “cruel.” The court clarifies the Constitution’s meaning of “cruel” as an implication of “something inhumane and barbarous.” This is limited only in the context of capital punishment, being once again limited as beyond “the mere extinguishing of life.” Nor does the court deal with the issue of “unusual”, even though this was the first death by electric chair in the state, making it unusual by definition. Instead, they imply that its humaneness outweighs its unusualness. This, therefore, defines “unusual” as being inhumane. However, as aforementioned, the court rarely deals with “unusual”, and this precedent is barely relied upon. In Re Kemmler marks a landmark in the interpretation of the Eighth Amendment by codifying capital punishment as not “cruel,” and in a limited sense outlawing torture as a form of punishment.

While Wilkerson and Kemmler attempted to set some restrictions on the Eighth Amendment, Weems v. United States used a different method. Instead of attempting to find a universal definition for “cruel and unusual,” the court in Weems embraced the ambiguity of the clause and tried to find a universal approach. In 1910, Paul Weems, who worked for the Bureau of the Coast Guard and Transportation for the United States government in the Philippines, manipulated the cash book by changing employees’ wages so he could profit. He was convicted of fraud and the falsification of public documents in a court in the Philippines. He was sentenced to:

“fifteen years of [shackles], together with the accessories of section 56 of the Penal Code, and to pay affine of 4,000 pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to pay the costs of this cause.”[ix]

Also in his sentence was hard labor.[x] Weems appealed to the Supreme Court of the Philippines, which held the conviction. He then appealed to the U.S. Supreme Court on several questions, including whether or not fifteen years of imprisonment was “cruel and unusual” and if the extent of the sentence matched the crime. Justice McKenna delivered the court opinion and stated that past cases and applications of the “cruel and unusual” clause have either been in relation to “something inhuman and barbarous – torture and the like” or sentence proportionality with the crime.[xi] He also states that there has never been a case presented to the Supreme Court that demanded an exact definition.[xii] From this, McKenna explores a multitude of cases that previously grappled with the Eighth Amendment. He firstly points out that on its face the Philippine’s punishments violate the Bill of Rights “both in degree and kind,” and that the specific terms of Weems’ punishment (particularly the shackles and hard labor) constitute “cruel and unusual.”[xiii] By doing this, McKenna creates a new basis to explore the Eighth Amendment: public opinion, sentiments and standards. McKenna compared U.S. punishments to punishments in the Philippines and based on this standard ruled that they were cruel and unusual and therefore unconstitutional. As such, the court reversed Weems’ sentencing. McKenna’s opinion establishes a crucial precedent for the Eighth Amendment. In the opinion, he states that the Eighth Amendment “may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”[xiv] McKenna crafts a new vision of the Eighth Amendment, one where “cruel and unusual” is determined by public opinion and standards. While this does not invalidate the definitions for “cruel and unusual” established by Wilkerson and Kemmler, the creation of the public standard test solidifies the idea that there is no satisfactory universal definition for the Eighth Amendment.

The Weems precedent played a crucial role as the court grappled with developing the Eighth Amendment throughout the 1970s. McGautha v. California, Furman v. Georgia, and Gregg v. Georgia are three major Supreme Court cases between 1971 and 1976 that exemplified the Eighth Amendment’s contentious nature. In McGautha, two petitioners (one from California, petition No. 203 and one from Ohio, petition No. 204) were both convicted of first-degree murder. No. 203’s sentence was left to the jury and was determined in a separate trial after his conviction. This case was petitioned to the Supreme Court on a writ of certiorari on the grounds that No. 203’s death penalty was determined by the jury without standards, which he claimed was unconstitutional. No. 24’s case was also petitioned on a writ of certiorari because his sentencing and punishment determination were done at the same time (as opposed to bifurcated trials), where the jury once again had absolute control. The legal question for both cases was whether determining conviction and punishment in the same proceeding was constitutional. The court found no constitutional violations and held both convictions and penalties. Justice Harlan delivered the court opinion. He justified absolute jury discretion over punishment and the non-necessity of bifurcated trial.[xv] In his discussion of the petitioners’ claim that full jury discretion was unconstitutional, Harlan, based on historical English Common law, Supreme Court precedent, “and the present limitations of human knowledge, [found] it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”[xvi] McGautha expands on the issue of a lack of definition that the court referenced in Weems and takes it one step further, firmly acknowledging that there cannot be a universal definition. This was a departure from the court’s approach in Wilkerson and Kemmler. The court here is codifying that the “cruel and unusual” clause does not need to have strict legal standards, as opposed to attempting narrowing the phrase. Instead, the court establishes that the Eighth Amendment is to be interpreted on a (quite literally) case-by-case basis. As it originally stood in the Constitution, “cruel and unusual” could develop a definition through case law (as seen with Wilkerson and In Re Kemmler). Now, however, the court essentially invalidates precedent by saying that past cases and “human knowledge” cannot create a universal definition or application for the Eighth Amendment. The court does not acknowledge how the individual cases will be determined, ignoring the Weems precedent. McGautha established that not only did there not need to be specific standards to sentencing someone to capital punishment, but there could not be.

McGautha was overturned one year later in Furman v. Georgia. Furman, like McGautha, was multiple cases combined, all of which were appealed to the Supreme Court on writs of certiorari. The first petitioner (Furman) was robbing a house during the night; after the homeowner awoke, Furman attempted to flee and in doing so either turned around and blindly fired his weapon or tripped and in doing so accidentally fired his weapon, but ultimately killing the homeowner. Both of these stories come from contradicting statements from Furman during his trial. He was convicted of felony robbery and murder and subsequently sentenced to death. The second case, Jackson v. Georgia, involved the petitioner (Lucious Jackson Petr Jr.) attempting to rob a home. He threatened the woman of the house with a pair of scissors, and upon the discovery that there was no money for him to steal, he raped her. He was convicted of felony robbery and rape and sentenced to death. In the last case, Branch v. Texas, Elmer Branch broke into a home, raped the woman who lived there, took the money from her wallet, and fled. He was tried and convicted for rape and sentenced to death. All three petitioners (who, it should be noted, were all African American males) petitioned on the question of whether or not the death penalty violated the “cruel and unusual” clause of the Eighth Amendment. In a per-curiam opinion (again, one year after McGautha), the court stated that, for these three cases, the death penalty violated the Eighth Amendment because of the lack of clear standards and reversed all the decisions. The case was decided by a 5-4 opinion with every single judge writing an opinion. Most of the concurring opinions (no judge joined on another opinion so they all stand individually) use strict scrutiny  to examine the cases before them. Several of the concurring opinions mention the apparent racism in the decisions.[xvii] Both Justices Brennan and Marshall conclude in their concurring opinions that capital punishment on its face is unconstitutional.[xviii] Stewart, however, insists that the decisions must be taken in context within their state’s constitution and precedent (he points out that neither Georgia or Texas have stated that death is the automatic punishment for murder or rape), in order to understand and determine the extent of the seemingly arbitrary nature of the decisions (why were these defendants sentenced to death, but not others who committed the same crimes in the same states?).[xix] He then uses this to argue for the “cruelty” of the punishments, as “they excessively go beyond, not in degrees but in kind, the punishments that the State legislatures have determined to be necessary.”[xx] This establishes a precedent for structure in applying the Eighth Amendment, directly overturning McGautha. The court is now expressing a direct need for some guidelines to govern the application of the death penalty so that it does not constitute Stewart’s definition of “cruel.” From Furman, the court equates “cruel” with arbitrary. The death penalty is determined constitutional only as long as it follows a framework of structure and guidelines for application, which the court could not determine. Since the court never established these guidelines, all capital punishment sentences in the U.S. after Furman were changed to life sentences, until the states and Congress developed new specific legislative guidelines. From 1972 to 1976, no death penalties were carried out in the U.S. because of this de facto moratorium as the court never reaffirmed the constitutionality of the death penalty under specific guidelines.

The impact of Furman goes beyond this halting of executions. In order to truly understand the impact of Furman and explore the evolution of the Eighth Amendment, the varying opinions must be closely examined. Examining the analytical approach of the opinions in Furman illustrate two different ways to understand the Eighth Amendment. Douglas, Stewart, and White argue for an analytic approach, based on how the death penalty is applied and its social consequences.[xxi] The discussion of racial bias and state precedent would fall under the analytical approach. The second approach appears in Justice Marshall’s opinion. Marshall continues the precedent set by Weems and hones the normative approach.[xxii] In his opinion, Marshall asks the question of “whether capital punishment is ‘a punishment no longer consistent with our own self-respect’ and, therefore, violative of the Eighth Amendment.”[xxiii] He reasserts that the Eighth Amendment was intended to “outlaw torture and other cruel punishments” but argues that the application of the clause must be determined by present societal standards.[xxiv] Marshall limits this, however, by qualifying the punishments that can be considered constitutional under public opinion. Punishments of torture, he says, will always be outlawed by the Eighth Amendment, even if public opinion were ever to say they were acceptable.[xxv] This lays the foundation for his exploration of capital punishment as an excessive punishment (excessive punishment in this case is equal to “cruel and unusual”) according to modern standards, arguing that it is therefore unconstitutional. He concludes that it is based on modern concepts of retribution, deterrence, prevention, and “encouraging guilty pleas and confessions, eugenics, and reducing state expenditures” (these last three he deals with together).[xxvi] He also recognizes a lack of national understanding of capital punishment and the effect that lack of knowledge has on societal opinion. Marshall’s opinion revitalizes and reinvigorates the Eighth Amendment. He establishes a clear and concise test to determine what constitutes “cruel and unusual.” He embraces the ambiguity of the Eighth Amendment and develops a solution that gives it some clarity.

Marshall’s test had a major effect on the follow up case to Furman, Gregg v. Georgia. In 1976, five cases were decided by the Supreme Court that reaffirmed the constitutionality of the death penalty. Instead of delving into the factual details of these cases, just the procedural posture will be examined. Georgia, Florida, Texas, North Carolina, and Louisiana (listed in this format to reflect the order of the full case name), all changed their statutes and legislation to establish strict guidelines for the sentencing of the death penalty in compliance with Furman. Changes included the necessity of a bifurcated trial and specific guidelines for determining if a case is eligible to receive the death penalty. For each petitioners’ case, they were tried and sentenced to death as complying with the new guidelines of their state. They all appealed on the grounds that capital punishment violated the Eighth Amendment on writs of certiorari. In a 7-2 decision, the Supreme Court maintained the death sentences of the petitioners from Georgia, Texas, and Florida, because their state guidelines for deciding capital punishment were constitutional. The decisions for North Carolina and Louisiana were reversed on the grounds that their state legislations were constitutionally insufficient. The plurality opinion, written by Stewart, establishes several major rules for the Eighth Amendment. Firstly, the Supreme Court officially codified capital punishment as constitutional.[xxvii] Stewart additionally gives another definition of the Eighth Amendment, stating:

“The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is ‘excessive’ either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime.”[xxviii]

This definition of the Eight Amendment echoes Kemmler. Stewart expands on this precedent, however, by referring to punishments under the Eighth Amendment in general, instead of in direct relation to capital punishment like in Kemmler. He also crucially links proportionality to the Eighth Amendment, which was referenced in Weems and Furman but never firmly expressed.

Secondly, Stewart carries on the normative approach as established by Marshall in his Furman opinion. The “standard of decency” test echoes Marshall’s approach. However, Stewart provides no guidelines for how this standard should be reached. He also does not explain what the current standard of decency is or how the codifying of capital punishment fits into it. In Brennan’s dissenting opinion, he references Stewart’s “standard of decency” definition and argues that the modern and current standard of decency is that the death penalty be abolished.[xxix] Marshall, in his dissent, does this as well, referencing his Furman opinion where he argued for the unconstitutionality of the death penalty. He makes it clear that he is dissenting on the basis of the upholding of the death penalty, not the court’s methodology. Marshall’s argument focuses on what he believes to be inaccurate conclusions the majority reached in their opinion that justified capital punishment, such as retribution. Despite the contradictory conclusions reached by the majority and the two dissenting judges, Gregg represents the first successful application of the normative approach to the Eighth Amendment. Both the majority and the dissenting justices used this process to reach their conclusions. This marks a solid and definite change in the court’s interpretation of the Eighth Amendment: there can be no universal definition of the Eighth Amendment, but public opinion, standards and sentiments can be used to give it a definition on a strictly (and quite literally) case by case basis.

Gregg not only affirms the death penalty but also codifies how the death penalty should be determined. Stewart echoes Furman by stating that in order to curtail the seemingly arbitrary nature of the death penalty, there need to be statutes, and echoing Marshall and Weems by saying this should be done through public standard.[xxx] He establishes the constitutionality of the Georgia, Florida, and Texas statutes, therefore providing the guidelines for other States in the drafting of their legislation. He references the Georgia statute, emphasizing that there “must be specific jury [findings]as to the circumstance of the crime or the character of the defendant” in order to give the death penalty, as well as the necessity of State Supreme Court review.[xxxi] In his concurring opinion, White also crucially notes that prosecutors will be held to the same standards as a jury in deciding to charge a capital felony.[xxxii] Consequently, the Supreme Court ruling that the death penalty is constitutional within certain parameters lifted the implied ban on capital punishment from Furman. Gregg provided relief for the ambiguity created by Furman, allowing death penalties to continue in the U.S. Most importantly, Gregg established the basis for the death penalty, and created a background for following death penalty cases to be decided against. Subsequent capital punishment cases fleshed out, based on public opinion, certain specifics regarding the death penalty.

One example worth looking at is the death penalty as it relates to minors. Wilkins v. Missouri and Stanford v. Kentucky, decided together in 1989, set the precedent that it was not “cruel and unusual” to execute minors under the Eighth Amendment. The majority opinion, written by Justice Scalia, argued that the standard of decency was ambiguous about the execution of minors (ages 16 and 17 specifically), and therefore it must be left up to state legislation to determine constitutionality; both the cases presented were in states where there was legislation allowing the execution of minors.[xxxiii] This case came one year after Thompson v. Oklahoma, which decided that the execution of minors was unconstitutional.[xxxiv] In 2005, Roper v. Simmons reversed Wilkins and Stanford and reaffirmed Thompson. The court applied the standard of decency test to the same evidence (state legislation) and reached the opposite conclusion: that the execution of minors was in fact “cruel and unusual.”[xxxv] This back and forth in regards to the execution of minors reveals several things. Firstly, how amenable the Eighth Amendment remains even though it is limited by a test. Secondly, how the Marshall test works in context (how the justices prove “standard decency” and public opinion). Third, even this test, as empirical as it is, is incredibly flawed. It does not allow the Court to establish long term precedents; in order to maintain constitutionality, the Supreme Court would have to frequently review each decision made in relation to the death penalty. Lastly, it shows that the normative approach is firm. In the three cases presented above, the Marshall test held fast and produced an answer.

So how has the court developed the Eighth Amendment over time? Arguably, it did not. Instead the court has continuously reinforced the idea that there will never be a satisfactory, unchanging universal definition. The court followed established precedents up until Furman, when it (for the first time) recognized the broadness of the Eighth Amendment as a weakness and affirmed capital punishment. They have also relied heavily upon the Framer’s context for the Eighth Amendment and take its anti-torture message on its face. Unlike other clauses (such as the Fourth) where the actual meaning of space and privacy have been debated, there is no such debate for the Eighth Amendment. Its interpretation is essentially fixed. What the court developed instead was its approach. From Weems to Furman and Gregg the court honed the normative approach to the Eighth Amendment. This gives “cruel and unusual” a momentary, fleeting definition, allowing the court to come to a constitutional decision. An issue with this test is the possibility of reaching a standard decency that morally violates “cruel and unusual,” for instance, exploring the possibility of executing a pregnant woman. It can hardly be argued that executing a pregnant woman would violate the framer’s intent of “cruel and unusual.” At that point, the court will have to resolve the issue of precedent: is the Framers intent greater than the current standard of decency? If so, does this mean there is a universal and satisfactory definition of cruel and unusual? Exploring an example such as the pregnant woman shows that while the court has reached an acceptable (and seemingly unwavering approach), the Eighth Amendment, more so than any other clause, is locked in an eternal battle between intent and societal standards.

[i] U.S. Constitution. Amend VIII

[ii] Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31.3 Pepp. L. Rev. 661, 708 (2004).

[iii] Wilkerson v. State of Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878)

[iv] Ibid., Wilkerson v. State of Utah.

[v] Ibid., Wilkerson v. State of Utah.

[vi] Ibid., Wilkerson v. State of Utah.

[vii] Gilbert King, “Cruel and Unusual History,” The New York Times. April 23, 2008. Accessed April 27, 2017 http://www.nytimes.com/2008/04/23/opinion/23king.html

[viii] In Re Kemmler, 136 U.S. 436, 438 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890).

[ix] Weems v. United States, 217 U.S. 359 (1910)

[x] Ibid., Weems v. United States.

[xi] Ibid., Weems v. United States.

[xii] Ibid., Weems v. United States.

[xiii] Ibid., Weems v. United States.

[xiv] Ibid., Weems v. United States.

[xv] McGautha v. California, 402 U.S. 183 (1971)

[xvi] Ibid., McGautha v. California.

[xvii] Furman v. Georgia. 408 U.S. 238 (1972)

[xviii] Ibid., Furman v. Georgia.

[xix] Ibid., Furman v. Georgia.

[xx] Ibid., Furman v. Georgia.

[xxi] Austin Sarat; Neil Vidmar, Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976.1 Wis. L. Rev. 171, 206 (1976), pages 172-173.

[xxii] Ibid., 173.

[xxiii] Furman v. Georgia. 408 U.S. 238 (1972)

[xxiv] Ibid., Furman v. Georgia.

[xxv] Ibid., Furman v. Georgia.

[xxvi] Ibid., Furman v. Georgia.

[xxvii] Gregg v. Georgia, 428 U.S. 153 (1976)

[xxviii] Ibid., Gregg v. Georgia.

[xxix] Ibid., Gregg v. Georgia.

[xxx] Ibid., Gregg v. Georgia.

[xxxi] Ibid., Gregg v. Georgia.

[xxxii] Ibid., Gregg v. Georgia.

[xxxiii] Stanford v. Kentucky. 492 U.S. 361 (1989)

[xxxiv] Thompson v. Oklahoma. 487 U.S. 815 (1988)

[xxxv] Roper v. Simmons. 543 U.S. 551 (2005)



  1. Furman v. Georgia. 408 U.S. 238 (1972)
  2. Gregg v. Georgia, 428 U.S. 153 (1976)
  3. In Re Kemmler, 136 U.S. 436, 438 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890).
  4. King, Gilbert. “Cruel and Unusual History.” The New York Times. April 23, 2008. Accessed April 27, 2017 http://www.nytimes.com/2008/04/23/opinion/23king.html
  5. McGautha v. California, 402 U.S. 183 (1971)
  6. Roper v. Simmons. 543 U.S. 551 (2005)
  7. Rumann, Celia. Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment. 31.3 Pepp. L. Rev. 661, 708 (2004).
  8. Sarat, Austin; Vidmar, Neil. Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis. 1976.1 Wis. L. Rev. 171, 206 (1976).
  9. Stanford v. Kentucky. 492 U.S. 361 (1989)
  10. Thompson v. Oklahoma. 487 U.S. 815 (1988)
  11. S. Constitution. Amend VIII. https://www.law.cornell.edu/constitution/eighth_amendment
  12. Weems v. United States, 217 U.S. 359 (1910)
  13. Wilkerson v. State of Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878)