Part II
Constitutional Law of Corrections
Chapter 14 – Eighth Amendment:
Death Penalty and Other Sentencing
Issues

Introduction: The first of two chapters
looking at the Eighth Amendment – the
focus in this chapter is primarily a
discussion of the cruel and unusual
punishment clause with respect to
sentencing, including death penalty
sentences and death row conditions
Chapter Outline
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Sentencing
Death Penalty Sentences
Death Row Conditions
Cruel and Unusual Punishment in
Noncapital Sentencing Cases
Sentencing

The Supreme Court has used the Eighth
Amendment’s “cruel and unusual”
clause to weigh sentencing
Sentencing: cont’d

Trop v. Dulles (1958) – the Court held
that the punishment of loss of
nationality following conviction for
military desertion during wartime was
cruel and unusual
Sentencing: cont’d

The Court said:

“[Eighth] Amendment must draw its
meaning from the evolving standards of
decency that mark the progress of a
maturing society”
Sentencing: cont’d

Weems v. United States (1909) - Court
held that the punishment of 12-20
years hard labor, with ankle and wrist
chains worn, and perpetual loss of civil
rights, for the offense of being an
accessory to falsification of a
government document was too harsh
Sentencing: cont’d



Court held that punishment is cruel and unusual
if it is greatly disproportionate to the offense for
which it was imposed; or
If it goes beyond what is necessary to achieve a
sentencing aim, even if that aim is justified
Court continues to look at the dual issues of
“evolving standards of decency” and
proportionality in regards to punishment
Sentencing: cont’d

Atkins v. Virginia (2002) – Court held
that a punishment of the death penalty
for a mentally retarded person
convicted of murder was excessive

“A claim that punishment is excessive is
judged not by the standards that prevailed
. . . when the Bill of Rights was adopted,
but rather by those that currently prevail”
Death Penalty Sentences

In Furman v. Georgia (1972), Court
called a halt to use of the death penalty


Found that it was imposed at the complete
discretion of the judge or jury
Led to arbitrary and varied results that did
not allow any meaningful basis for
distinguishing the cases from where it was
imposed to those where it was not
Death Penalty Sentences:
cont’d

In Gregg v. Georgia (1976), the Court found
Georgia’s new sentencing formula meeting
Eighth and Fourteenth Amendment standards

At least one aggravating factor had to be found
by the jury to exist beyond a reasonable doubt
before a death sentence could be imposed
 This was intended to meet the arbitrary or
capricious concern in Furman
Death Penalty Sentences:
cont’d


In addition, the jury could consider other
relevant aggravating and mitigating factors
Georgia provided for an automatic appeal
of all death sentences to the Georgia
Supreme Court

That court had to review all the procedural
proprieties, plus compare the death sentence
with those sentences imposed on similarly
situated defendants in the state
Death Penalty Sentences:
cont’d

In Gregg, the Court also looked at the
“cruel and unusual” clause

Means punishments must not be excessive


“(P)unishment must not involve the
unnecessary and wanton infliction of pain. . .
. the punishment must not be grossly out of
proportion to the severity of the crime”
Court majority held that the death penalty
was not an unconstitutional punishment
per se
Death Penalty Sentences:
cont’d

Court has recognized other permissible
sentencing schemes


In Pulley v. Harris (1984), the Court upheld the
California sentencing scheme, which did not
require a review of the death penalty in
comparison to other similar cases in the state
(a comparative proportionality review)
Court held that what is required is a system of
procedural checks and precautions to prevent
arbitrariness
Death Penalty Sentences:
cont’d

In Woodson v. North Carolina (1976), the
Court rejected a death penalty system that
required the death penalty for all offenses
of a certain kind, such as first-degree
murder

Court saw as “unduly harsh and unworkably
rigid, ” that it eliminated consideration of the
individual defendant
Death Penalty Sentences:
cont’d

Court has clearly indicated that its
concern for individualizing the sentence
requires the jury to consider mitigating
circumstances in all death penalty cases
Death Penalty Sentences:
cont’d

In Eddings v. Oklahoma (1982), the
Court gave the following guidance

Looking for a death penalty system that is
“at once consistent and principled but also
humane and sensible to the uniqueness of
the individual”
Death Penalty Sentences:
cont’d

Court’s view on the death penalty in
other situations

In Coker v. Georgia (1977), the Court
rejected the death penalty for the crime of
rape – held it was unconstitutional on the
grounds that it is disproportionate to the
offense
Death Penalty Sentences:
cont’d

In Tison v. Arizona (1987), Court upheld death
penalty for a defendant who did not do the
murder, but was a significant accomplice
 Tison assisted his father and another inmate
to escape from prison, and then to
commandeer a car in which all four
passengers were killed
 Court held this showed “reckless indifference
to human life” and that Tison “knowingly
engaged in activities known to carry a grave
risk of death”
Death Penalty Sentences:
cont’d


Court has held that death sentences
imposed on 16 and 17 year olds are
constitutional (Stanford v. Kentucky,
1989)
All states forbid the execution of persons
who are (or have become) insane
Death Penalty Sentences:
cont’d

In 2002, Court rejected imposition of
the death penalty for persons who are
mentally retarded – Atkins v. Virginia


Atkins was convicted of abduction, armed
robbery, and capital murder
In assessing punishment, a forensic
psychologist testified that Atkins was
“mildly mentally retarded”
Death Penalty Sentences:
cont’d


The Court noted that a significant number
of states – 16 since 1990 – prohibited the
execution of the mentally retarded
This is in addition to the states that have
rejected capital punishment entirely
Death Penalty Sentences:
cont’d

The Court said “the large number of States
prohibiting the execution of mentally
retarded persons (and the complete
absence of States passing legislation
reinstating the power to conduct such
executions) provides powerful evidence
that today our society views mentally
retarded offenders as categorically less
culpable than the average criminal”
Death Penalty Sentences:
cont’d

As of 2002, 38 states and the federal
government have statutes authorizing
the death penalty


In 2001, there were 66 executions
Methods of execution

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28 use lethal injection exclusively
10 use lethal injection or an alternative
(lethal gas, hanging, electrocution, or firing
squad)
1 jurisdiction uses electrocution exclusively
Death Row Conditions

In states where the death penalty is authorized, it has
been a practice to have a separate prison area called
“death row”
 Security conditions are high
 Program facilities are low
 Recreation facilities are in, or attached to, the unit
 Inmates are allowed out of cells to shower and to
receive visits
 Meals are eaten in the unit
 Medical staff visit the unit to check on medical concerns
 Movement outside the unit may see the inmate
handcuffed and shackled
Death Row Conditions: cont’d

In re Medley (1890) was first Supreme Court
case on death row conditions



Medley under sentence of death for killing his
wife
Challenged his solitary confinement status
Court held solitary confinement was “additional
punishment,” and, in the circumstances of the
case, was unconstitutional
 “Circumstances of case” refers to fact that
the solitary confinement requirement was
enacted after the offense and was therefore
an ex post facto law
Death Row Conditions: cont’d

The Supreme Court has not
subsequently set any constitutional
requirements for death row conditions
of confinement

Court has given some indication that the
question of many years being spent on
death row may, in and of itself, raise a
question of cruel and unusual punishment
(Lackey v. Texas, 1995)
Death Row Conditions: cont’d

Lower courts have addressed
conditions:

In Sinclair v. Henderson (1971), the district
court held that denial of the opportunity
for regular outdoor exercise for inmates on
Louisiana’s death row, as a matter of law,
constitutes cruel and unusual punishment
Death Row Conditions: cont’d

A prison policy barring contact visits by
death row inmates with their attorneys was
struck down (Mann v. Reynolds (1995))


The appeals court noted the state allowed
these same inmates contact visits with
others, but singled out attorneys for the
prohibition
The appeals court held that absent a showing
that the ban on contact visits with attorneys
was necessitated by prison security concerns,
it was not rational for the ban to be enforced
Death Row Conditions: cont’d

Visiting with death row inmates may be
limited

Appeals court in Smith v. Coughlin (1984),
held that the decision by New York prison
authorities to limit visits to the inmate’s
immediate family was justifiably based on
security and administrative concerns
Cruel and Unusual Punishment in
Noncapital Sentencing Cases

In Rummel v. Estelle (1980), the
Supreme Court upheld a Texas
recidivist sentencing statute in which a
mandatory life sentence was required
for a third-time felony conviction

Jury convicted him of “felony theft” for
obtaining $120.75 by false pretenses
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d



Jury also found he had two prior felonies
(fraudulent use of a credit card, obtaining
$80 in goods; passing a forged check for
$28.68)
Court observed that the purpose of the
recidivist statute was to deter repeat
offenders and to separate the recidivist
from society for a lengthy period of time
Court upheld mandatory life sentence; the
sentence was not found to be
unconstitutional
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

In Solem v. Helm (1983), Court found
unconstitutional a South Dakota
recidivist sentence


Helm had been convicted of six prior nonviolent felonies; he then was convicted of
writing a “no account” check for $100
Ordinary penalty for that offense – a
maximum of 5 years
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d



Court held that the life sentence was
“significantly disproportionate to his crime,” and
therefore was in violation of the Eighth
Amendment
Court did not overrule Rummel – saying that the
South Dakota statute was “far more severe”
than the life sentence in Rummel
Apparently the key factor was that Rummel,
under Texas law was eligible for parole; Helm,
under South Dakota law, was not
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

In Ewing v. California (2003), the Court
examined the constitutionality of
California’s three-strikes law

The law provided that a defendant who is
convicted of a felony and has previously
been convicted of at least two serious or
violent felonies must receive an
indeterminate life imprisonment term
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d



Ewing, on parole from a nine year term,
tried to walk out of a golf pro shop with
three golf clubs ($399 each), concealed in
his pants leg
Convicted of felony grand theft
Under the three strikes law, received term
of 25 years to life
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d


Court upheld sentence – not grossly
disproportionate to the severity of the
crimes committed
Court held sentence is “justified by the
State’s public-safety interest in
incapacitating and deterring recidivist
felons, and amply supported by his own
long, serious criminal record”
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

Court: “To be sure, Ewing’s sentence is a
long one. But it reflects a rational
legislative judgment, entitled to deference,
that offenders who have committed serious
or violent felonies and who continue to
commit felonies must be incapacitated
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

In Lockyer v. Andrade (2003), the Supreme
Court declined to accept the argument that
two consecutive terms of 25 years to life for
stealing about $150 in video tapes were
grossly disproportionate to the offense, in
violation of the Eighth Amendment

Andrade, like Ewing, had a long criminal history,
and was therefore subject to the three-strikes
penalty
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

Court has not ruled on the
constitutionality of such statutes that
require a convicted sex offender to be
castrated, or allows the defendant to
choose castration to avoid many years
of imprisonment
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

Lower court opinions have split

State v. Brown (1985) – court held that
castration is a form of mutilation, violating
South Carolina’s state constitution ban on
cruel and unusual punishment; thus,
castration as a condition to suspension of
sentence and placement on probation was
void
Cruel and Unusual Punishment in
Noncapital Sentencing Cases: cont’d

People v. Foster (2002) – court upheld a plea
agreement where Foster, in exchange for the
dismissal of a number of serious felony
charges, agreed to a 30-year sentence that
included the possibility of undergoing
hormone suppression treatment
 The court said the inmate could not
maintain on appeal such treatment would
be cruel and unusual, and thus may not
be imposed; to do so would be to allow
the inmate “to have his cake and eat it
too”