Eighth Amendment: Further Guarantees In Criminal Cases

"This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. '. . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."[1] "The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept."[2] These two contrasting views of the "excessive bail" provision, uttered by the Court in the same Term, reflect the ambiguity inherent in the phrase and the absence of evidence regarding the intent of those who drafted and who ratified the Eighth Amendment.[3]

The history of the bail controversy in England is crucial to understanding why the ambiguity exists.[4] The Statute of Westminster the First of 1275[5] set forth a detailed enumeration of those offenses which were bailable and those which were not, and, though supplemented by later statutes, it served for something like five-and-a-half centuries as the basic authority.[6] Darnel's Case,[7] in which the judges permitted the continued imprisonment of persons without bail merely upon the order of the King, was one of the moving factors in the enactment of the Petition of Right in 1628.[8] The Petition cited Magna Carta as proscribing the kind of detention that was permitted in Darnel's Case. The right to bail was again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented,[9] and Parliament reacted by enacting the Habeas Corpus Act of 1679,[10] which established procedures for effectuating release from imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so high it could not be met, and Parliament responded by including in the Bill of Rights of 1689[11] a provision "[t]hat excessive bail ought not to be required." This language, along with essentially the rest of the present Eighth Amendment, was included within the Virginia Declaration of Rights,[12] was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state ratifying convention,[13] and was introduced verbatim by Madison in the House of Representatives.[14]

Thus, in England the right to bail generally was conferred by the basic 1275 statute, as supplemented, the procedure for assuring access to the right was conferred by the Habeas Corpus Act of 1679, and protection against abridgement through the fixing of an excessive bail was conferred by the Bill of Rights of 1689. In the United States, the Constitution protected habeas corpus in Article 1, § 9, but did not confer a right to bail. The question is, therefore, whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right to bail, or whether the phrase "excessive bail" was meant to be a shorthand expression of both rights.

Compounding the ambiguity is a distinctive trend in the United States which had its origin in a provision of the Massachusetts Body of Liberties of 1641,[15] guaranteeing bail to every accused person except those charged with a capital crime or contempt in open court. Copied in several state constitutions,[16] this guarantee was contained in the Northwest Ordinance in 1787,[17] along with a guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789,[18] enacted contemporaneously with the passage through Congress of the Bill of Rights. It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing right to bail could be abridged.

Long unresolved was the issue of whether "preventive detention"-the denial of bail to an accused, unconvicted defendant because it is feared or it is found probable that if released he will be a danger to the community-is constitutionally permissible. Not until 1984 did Congress authorize preventive detention in federal criminal proceedings.[19]

The Court first tested and upheld under the Due Process Clause of the Fourteenth Amendment a state statute providing for preventive detention of juveniles.[20] Then, in United States v. Salerno,[21] the Court upheld application of preventive detention provisions of the Bail Reform Act of 1984 against facial challenge under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court's role in adjudicating guilt or innocence. "[W]e reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release."[22] Instead, "the only arguable substantive limitation of the Bail Clause is that the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil."[23] Detention pending trial of "arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel" satisfies this requirement.[24]

Bail is "excessive" in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.[25] If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then "bail must be set by a court at a sum designed to ensure that goal, and no more."[26] To challenge bail as excessive, one must move for a reduction, and if that motion is denied appeal to the Court of Appeals, and if unsuccessful then to the Supreme Court Justice sitting for that circuit.[27] The Amendment is apparently inapplicable to postconviction release pending appeal, but the practice has apparently been to grant such releases.[28]

Excessive Fines

For years the Supreme Court had little to say about excessive fines. In an early case, it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record.[29] Justice Brandeis once contended in dissent that the denial of second-class mailing privileges to a newspaper on the basis of its past conduct, because it imposed additional mailing costs which grew day by day, amounted to an unlimited fine that was an "unusual" and "unprecedented" punishment proscribed by the Eighth Amendment.[30] The Court has elected to deal with the issue of fines levied upon indigents, resulting in imprisonment upon inability to pay, in terms of the equal protection clause,[31] thus obviating any necessity to develop the meaning of "excessive fines" in relation to ability to pay. The Court has held the Clause inapplicable to civil jury awards of punitive damages in cases between private parties, "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded."[32] The Court based this conclusion on a review of the history and purposes of the Excessive Fines Clause. At the time the Eighth Amendment was adopted, the Court noted, "the word 'fine' was understood to mean a payment to a sovereign as punishment for some offense."[33] The Eighth Amendment itself, as were antecedents of the Clause in the Virginia Declaration of Rights and in the English Bill of Rights of 1689, "clearly was adopted with the particular intent of placing limits on the powers of the new government."[34] Therefore, while leaving open the issues of whether the Clause has any applicability to civil penalties or to qui tam actions, the Court determined that "the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government."[35] The Court has held, however, that the excessive fines clause can be applied in civil forfeiture cases.[36]

In 1998, however, the Court injected vitality into the strictures of the clause. "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish."[37] In United States v. Bajakajian,[38] the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of the country forfeit the currency involved, which totaled $357,144. The Court held that the forfeiture[39] in this particular case violated the Excessive Fines Cause because the amount forfeited was "grossly disproportionate to the gravity of defendant's offense."[40] In determining proportionality, the Court did not limit itself to a comparison of the fine amount to the proven offense, but it also considered the particular facts of the case, the character of the defendant, and the harm caused by the offense.[41]

Cruel and Unusual Punishments

During congressional consideration of this provision one Member objected to "the import of [the words] being too indefinite" and another Member said: "No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[42] It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants,[43] but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments.[44] Though few in number, the decisions of the Supreme Court interpreting this guarantee have applied it in both senses.

Style of Interpretation

At first, the Court was inclined to an historical style of interpretation, determining whether or not a punishment was "cruel and unusual" by looking to see if it or a sufficiently similar variant was considered "cruel and unusual" in 1789.[45] But in Weems v. United States[46] it was concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of "a coercive cruelty being exercised through other forms of punishment." The Amendment therefore was of an "expansive and vital character"[47] and, in the words of a later Court, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[48] The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases.[49]

Application and Scope

"Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution."[50]

In upholding capital punishment inflicted by a firing squad, the Court not only looked to traditional practices but examined the history of executions in the territory concerned, the military practice, and current writings on the death penalty.[51] Relying on the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment, the Court next approved electrocution as a permissible method of administering punishment.[52] Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States, held that a second electrocution following a mechanical failure at the first which injured but did not kill the condemned man did not violate the proscription.[53]

Divestiture of the citizenship of a natural born citizen was held to be cruel and unusual punishment in Trop v. Dulles.[54] The Court viewed divestiture as a penalty more cruel and "more primitive than torture," inasmuch as it entailed statelessness or "the total destruction of the individual's status in organized society." "The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment." A punishment must be examined "in light of the basic prohibition against inhuman treatment," and the Amendment was intended to preserve the "basic concept . . . [of] the dignity of man" by assuring that the power to impose punishment is "exercised within the limits of civilized standards."[55]

Capital Punishment

The Court's 1972 decision in Furman v. Georgia,[56] finding constitutional deficiencies in the manner in which the death penalty was arrived at but not holding the death penalty unconstitutional per se, was a watershed in capital punishment jurisprudence. In the long run the ruling may have had only minor effect in determining who is sentenced to death and who is actually executed, but it had the indisputable effect of constitutionalizing capital sentencing law and of involving federal courts in extensive review of capital sentences.[57]Prior to 1972, constitutional law governing capital punishment was relatively simple and straightforward. Capital punishment was constitutional, and there were few grounds for constitutional review. Furman and the five 1976 followup cases that reviewed state laws revised in light of Furman re-affirmed the constitutionality of capital punishment per se, but also opened up several avenues for constitutional review. Since 1976, the Court has issued a welter of decisions attempting to apply and reconcile the sometimes conflicting principles it had announced: that sentencing discretion must be confined through application of specific guidelines that narrow and define the category of death-eligible defendants and thereby prevent arbitrary imposition of the death penalty, but that jury discretion must also be preserved in order to weigh the mitigating circumstances of individual defendants who fall within the death-eligible class.

While the Court continues to tinker with application of these principles, it also has taken steps to attempt to reduce the many procedural and substantive opportunities for delay and defeat of the carrying out of death sentences, and to give the states more leeway in administering capital sentencing. The early post-Furman stage involving creation of procedural protections for capital defendants and premised on a "death is different" rationale,[58] gave way to increasing impatience with the delays made possible through procedural protections, especially those associated with federal habeas corpus review.[59]Having consistently held that capital punishment is not inherently unconstitutional, the Court seems bent on clarifying and even streamlining constitutionally required procedures so that those states that choose to impose capital punishment may do so without inordinate delays. In the habeas context, the interest in finality has trumped a death-is-different approach.[60] The writ has also been restricted statutorily.[61]

Changed membership on the Court has had an effect. Gone from the Court are Justices Brennan and Marshall, whose belief that all capital punishment constitutes cruel and unusual punishment resulted in two automatic votes against any challenged death sentence.[62] Strong differences remain over such issues as the appropriate framework for consideration of aggravating and mitigating circumstances and the appropriate scope of federal review, but as of 2002 a Court majority still seemed committed to reducing obstacles created by federal review of death sentences imposed under state laws that have been upheld as constitutional.

General Validity and Guiding Principles

In Trop v. Dulles, the majority refused to consider "the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."[63] But a coalition of civil rights and civil liberties organizations mounted a campaign against the death penalty in the 1960s, and the Court eventually confronted the issues involved. The answers were not, it is fair to say, consistent.

A series of cases testing the means by which the death penalty was imposed[64] culminated in what appeared to be a decisive rejection of the attack in McGautha v. California.[65]Nonetheless, the Court then agreed to hear a series of cases directly raising the question of the validity of capital punishment under the cruel and unusual punishments clause, and, to considerable surprise, the Court held in Furman v. Georgia[66] that the death penalty, at least as administered, did violate the Eighth Amendment. There was no unifying opinion of the Court in Furman; the five Justices in the majority each approached the matter from a different angle in a separate concurring opinion. Two Justices concluded that the death penalty was "cruel and unusual" per se because the imposition of capital punishment "does not comport with human dignity"[67] or because it is "morally unacceptable" and "excessive."[68] One Justice concluded that because death is a penalty inflicted on the poor and hapless defendant but not the affluent and socially better defendant, it violates the implicit requirement of equality of treatment found within the Eighth Amendment.[69] Two Justices concluded that capital punishment was both "cruel" and "unusual" because it was applied in an arbitrary, "wanton," and "freakish" manner[70] and so infrequently that it served no justifying end.[71]

Because only two of the Furman Justices thought the death penalty to be invalid in all circumstances, those who wished to reinstate the penalty concentrated upon drafting statutes that would correct the faults identified in the other three majority opinions.[72]Enactment of death penalty statutes by 35 States following Furman led to renewed litigation, but not to the elucidation one might expect from a series of opinions.[73] Instead, while the Court seemed firmly on the path to the conclusion that only criminal acts that result in the deliberate taking of human life may be punished by the state's taking of human life,[74] it chose several different paths in attempting to delineate the acceptable procedural devices that must be instituted in order that death may be constitutionally pronounced and carried out. To summarize, the Court determined that the penalty of death for deliberate murder is not per se cruel and unusual, but that mandatory death statutes leaving the jury or trial judge no discretion to consider the individual defendant and his crime are cruel and unusual, and that standards and procedures may be established for the imposition of death that would remove or mitigate the arbitrariness and irrationality found so significant in Furman.[75] Divisions among the Justices, however, made it difficult to ascertain the form which permissible statutory schemes may take.[76]

Inasmuch as the three Justices in the majority in Furman who did not altogether reject the death penalty thought the problems with the system revolved about discriminatory and arbitrary imposition,[77] legislatures turned to enactment of statutes that purported to do away with these difficulties. One approach was to provide for automatic imposition of the death penalty upon conviction for certain forms of murder. More commonly, states established special procedures to follow in capital cases, and specified aggravating and mitigating factors that the sentencing authority must consider in imposing sentence. In five cases in 1976, the Court rejected automatic sentencing, but approved other statutes specifying factors for jury consideration.[78]

First, the Court concluded that the death penalty as a punishment for murder does not itself constitute cruel and unusual punishment. While there were differences of degree among the seven Justices in the majority on this point, they all seemed to concur in the position that reenactment of capital punishment statutes by 35 States precluded the Court from concluding that this form of penalty was no longer acceptable to a majority of the American people. Rather, they concluded, a large proportion of American society continued to regard it as an appropriate and necessary criminal sanction. Neither is it possible, the Court continued, to rule that the death penalty does not comport with the basic concept of human dignity at the core of the Eighth Amendment. Courts are not free to substitute their own judgments for the people and their elected representatives. A death penalty statute, just as all other statutes, comes before the courts bearing a presumption of validity which can be overcome only upon a strong showing by those who attack its constitutionality. Whether in fact the death penalty validly serves the permissible functions of retribution and deterrence, the judgments of the state legislatures are that it does, and those judgments are entitled to deference. Therefore, the infliction of death as a punishment for murder is not without justification and is not unconstitutionally severe. Neither is the punishment of death disproportionate to the crime being punished, murder.[79]

Second, a different majority, however, concluded that statutes mandating the imposition of death for crimes classified as first-degree murder violate the Eighth Amendment. A review of history, traditional usage, legislative enactments, and jury determinations led the plurality to conclude that mandatory death sentences had been rejected by contemporary standards. Moreover, mandatory sentencing precludes the individualized "consideration of the character and record of the . . . offender and the circumstances of the particular offense" that "the fundamental respect for humanity underlying the Eighth Amendment" requires in capital cases.[80]

A third principle established by the 1976 cases was that the procedure by which a death sentence is imposed must be so structured as to reduce arbitrariness and capriciousness as much as possible.[81] What emerged from the prevailing plurality opinion in these cases are requirements (1) that the sentencing authority, jury or judge,[82] be given standards to govern its exercise of discretion and be given the opportunity to evaluate both the circumstances of the offense and the character and propensities of the accused;[83] (2) that to prevent jury prejudice on the issue of guilt there be a separate proceeding after conviction at which evidence relevant to the sentence, mitigating and aggravating, will be presented;[84] (3) that special forms of appellate review be provided not only of the conviction but also of the sentence, to ascertain that the sentence was in fact fairly imposed both on the facts of the individual case and by comparison with the penalties imposed in similar cases.[85] The Court later ruled, however, that proportionality review is not constitutionally required.[86] Gregg, Proffitt, and Jurek did not require such comparative proportionality review, the Court noted, but merely suggested that proportionality review is one means by which a state may "safeguard against arbitrarily imposed death sentences."[87]

The Court added a fourth major guideline in 2002, holding that the Sixth Amendment right to trial by jury comprehends the right to have a jury make factual determinations on which a sentencing increase is based.[88] This means that capital sentencing schemes are unconstitutional if judges are allowed to make factual findings as to the existence of aggravating circumstances that are prerequisites for imposition of a death sentence.

Implementation of Procedural Requirements

Most states responded to the 1976 requirement that the sentencing authority's discretion be narrowed by enacting statutes spelling out "aggravating" circumstances, and providing that at least one such aggravating circumstance must be found to be present before the death penalty may be imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer, the desired result being a principled way to distinguish cases in which the death penalty should be imposed from other cases in which it should not be. Thus, the Court invalidated a capital sentence based upon a jury finding that the murder was "outrageously or wantonly vile, horrible, and inhuman," reasoning that "a person of ordinary sensibility could fairly [so] characterize almost every murder."[89] Similarly, an "especially heinous, atrocious or cruel" aggravating circumstance was held to be unconstitutionally vague.[90] The "especially heinous, cruel or depraved" standard is cured, however, by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim's death.[91]

The proscription against a mandatory death penalty has also received elaboration. The Court invalidated statutes making death the mandatory sentence for persons convicted of first-degree murder of a police officer,[92] and for prison inmates convicted of murder while serving a life sentence without possibility of parole.[93] On the other hand, if actual sentencing authority is conferred on the trial judge, it is not unconstitutional for a statute to require a jury to return a death "sentence" upon convicting for specified crimes.[94] Flaws related to those attributed to mandatory sentencing statutes were found in a state's structuring of its capital system to deny the jury the option of convicting on a lesser included offense, when that would be justified by the evidence.[95] Because the jury had to choose between conviction or acquittal, the statute created the risk that the jury would convict because it felt the defendant deserved to be punished or acquit because it believed death was too severe for the particular crime, when at that stage the jury should concentrate on determining whether the prosecution had proved defendant's guilt beyond a reasonable doubt.[96]

The overarching principle of Furman and of the Gregg series of cases was that the jury should not be 'without guidance or direction' in deciding whether a convicted defendant should live or die. The jury's attention was statutorily 'directed to the specific circumstances of the crime . . . and on the characteristics of the person who committed the crime.'[97]Discretion was channeled and rationalized. But in Lockett v. Ohio,[98] a Court plurality determined that a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in the law. In other words, the jury's discretion was curbed too much. "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."[99] Similarly, the reason that a three-justice plurality viewed North Carolina's mandatory death sentence for persons convicted of first degree murder as invalid was that it failed "to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant."[100] Lockett and Woodson have since been endorsed by a Court majority.[101] Thus, a great measure of discretion was again accorded the sentencing authority, be it judge or jury, subject only to the consideration that the legislature must prescribe aggravating factors.[102]

The Court has explained this apparent contradiction as constituting recognition that "individual culpability is not always measured by the category of crime committed,"[103] and as the product of an attempt to pursue the "twin objectives" of "measured, consistent application" of the death penalty and "fairness to the accused."[104] The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps consistency of application; absence of restriction on mitigating evidence helps promote fairness to the accused through an "individualized" consideration of his circumstances. In the Court's words, statutory aggravating circumstances "play a constitutionally necessary function at the stage of legislative definition [by] circumscribing the class of persons eligible for the death penalty,"[105] while consideration of all mitigating evidence requires focus on "the character and record of the individual offender and the circumstances of the particular offense" consistent with "the fundamental respect for humanity underlying the Eighth Amendment."[106] As long as the defendant's crime falls within the statutorily narrowed class, the jury may then conduct "an individualized determination on the basis of the character of the individual and the circumstances of the crime."[107]

So far, the Justices who favor abandonment of the Lockett and Woodson approach have not prevailed. The Court has, however, given states greater leeway in fashioning procedural rules that have the effect of controlling how juries may use mitigating evidence that must be admitted and considered.[108] States may also cure some constitutional errors on appeal through operation of "harmless error" rules and reweighing of evidence by the appellate court.[109] Also, the Court has constrained the use of federal habeas corpus to review state court judgments. As a result of these trends, the Court recognizes a significant degree of state autonomy in capital sentencing in spite of its rulings on substantive Eighth Amendment law.

While holding fast to the Lockett requirement that sentencers be allowed to consider all mitigating evidence,[110] the Court has upheld state statutes that control the relative weight that the sentencer may accord to aggravating and mitigating evidence.[111] "The requirement of individualized sentencing is satisfied by allowing the jury to consider all relevant mitigating evidence"; there is no additional requirement that the jury be allowed to weigh the severity of an aggravating circumstance in the absence of any mitigating factor.[112] So too, the legislature may specify the consequences of the jury's finding an aggravating circumstance; it may mandate that a death sentence be imposed if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance,[113] or if the jury finds that aggravating circumstances outweigh mitigating circumstances.[114] And a court may instruct that the jury "must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling," since in essence the instruction merely cautions the jury not to base its decision "on factors not presented at the trial."[115]However, a jury instruction that can be interpreted as requiring jury unanimity on the existence of each mitigating factor before that factor may be weighed against aggravating factors is invalid as in effect allowing one juror to veto consideration of any and all mitigating factors. Instead, each juror must be allowed to give effect to what he or she believes to be established mitigating evidence.[116] Due process considerations can also come into play; if the state argues for the death penalty based on the defendant's future dangerousness, due process requires that the jury be informed if the alternative to a death sentence is a life sentence without possibility of parole.[117]

Appellate review under a harmless error standard can preserve a death sentence based in part on a jury's consideration of an aggravating factor later found to be invalid,[118] or on a trial judge's consideration of improper aggravating circumstances.[119] In each case the sentencing authority had found other aggravating circumstances justifying imposition of capital punishment, and in Zant evidence relating to the invalid factor was nonetheless admissible on another basis.[120] Even in states that require the jury to weigh statutory aggravating and mitigating circumstances (and even in the absence of written findings by the jury), the appellate court may preserve a death penalty through harmless error review or through a reweighing of the aggravating and mitigating evidence.[121] By contrast, where there is a possibility that the jury's reliance on a "totally irrelevant" factor (defendant had served time pursuant to an invalid conviction subsequently vacated) may have been decisive in balancing aggravating and mitigating factors, a death sentence may not stand in spite of the presence of other aggravating factors.[122]

Focus on the character and culpability of the defendant led the Court initially to hold that introduction of evidence about the character of the victim or the amount of emotional distress caused to the victim's family or community was inappropriate because it "creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner."[123] Changed membership on the Court resulted in overruling of these decisions, however, and a holding that "victim impact statements" are not barred from evidence by the Eighth Amendment.[124] "A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed."[125] In the view of the Court majority, admissibility of victim impact evidence was necessary in order to restore balance to capital sentencing. Exclusion of such evidence had "unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering 'a glimpse of the life' which a defendant 'chose to extinguish,' or demonstrating the loss to the victim's family and to society which has resulted from the defendant's homicide."[126]

Limitations on Capital Punishment: Proportionality

In Coker v. Georgia,[127] the Court held that the state may not impose a death sentence upon a rapist who did not take a human life.[128] The Court announced that the standard under the Eighth Amendment was that punishments are barred when they are "excessive" in relation to the crime committed. A "punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime."[129] In order that judgment not be or appear to be the subjective conclusion of individual Justices, attention must be given to objective factors, predominantly "to the public attitudes concerning a particular sentence-history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions...."[130] While the Court thought that the death penalty for rape passed the first test, it felt it failed the second. Georgia was the sole State providing for death for the rape of an adult woman, and juries in at least nine out of ten cases refused to impose death for rape. Aside from this view of public perception, the Court independently concluded that death is an excessive penalty for an offender who rapes but does not kill; rape cannot compare with murder "in terms of moral depravity and of injury to the person and the public."[131]

Applying the Coker analysis, the Court ruled in Enmund v. Florida[132] that death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or intend that anyone be killed. While a few more States imposed capital punishment in felony murder cases than had imposed it for rape, nonetheless the weight was heavily against the practice, and the evidence of jury decisions and other indicia of a modern consensus similarly opposed the death penalty in such circumstances. Moreover, the Court determined that death was a disproportionate sentence for one who neither took life nor intended to do so. Because the death penalty is a likely deterrent only when murder is the result of premeditation and deliberation, and because the justification of retribution depends upon the degree of the defendant's culpability, the imposition of death upon one who participates in a crime in which a victim is murdered by one of his confederates and not as a result of his own intention serves neither of the purposes underlying the penalty.[133]In Tison v. Arizona, however, the Court eased the "intent to kill" requirement, holding that, in keeping with an "apparent consensus" among the states, "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."[134] A few years earlier, Enmund had also been weakened by the Court's holding that the factual finding of requisite intent to kill need not be made by the guilt/innocence factfinder, whether judge or jury, but may be made by a state appellate court.[135]

Limitations on Capital Punishment: Diminished Capacity

The Court has recently grappled with several cases involving application of the death penalty to persons of diminished capacity. The first such case involved a defendant whose competency at the time of his offense, at trial, and at sentencing had not been questioned, but who subsequently developed a mental disorder. The Court held in Ford v. Wainwright[136] that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of execution-time sanity must be determined in a proceeding satisfying the minimum requirements of due process.[137] The Court noted that execution of the insane had been considered cruel and unusual at common law and at the time of adoption of the Bill of Rights, and continued to be so viewed. And, while no states purported to permit the execution of the insane, Florida and a number of others left the determination to the governor. Florida's procedures, the Court held, fell short of due process because the decision was vested in the governor without the defendant having the opportunity to be heard, the governor's decision being based on reports of three state-appointed psychiatrists.[138]

When first confronted with the issue of whether execution of the mentally retarded is constitutional, the Court in 1989 found "insufficient evidence of a national consensus against executing mentally retarded people."[139] In 2002, however, the Court determined in Atkins v. Virginia[140] that "much ha[d] changed" since 1989, that the practice had become "truly unusual," and that it was "fair to say" that a "national consensus" had developed against it.[141] In 1989, only two states and the Federal Government prohibited execution of the mentally retarded while allowing executions generally. By 2002, an additional 16 states had prohibited execution of the mentally retarded, and no states had reinstated the power. But the important element of consensus, the Court explained, was "not so much the number" of states that had acted, but instead "the consistency of the direction of change."[142]

The Court's "own evaluation of the issue" reinforced the consensus. Neither of the two generally recognized justifications for the death penalty-retribution and deterrence-apply with full force to mentally retarded offenders. Retribution necessarily depends on the culpability of the offender, yet mental retardation reduces culpability. Deterrence is premised on the ability of offenders to control their behavior, yet "the same cognitive and behavioral impairments that make these defendants less morally culpable . . . 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 on that information."[143]

So far the Court has not imposed a categorical prohibition on execution of juveniles. A closely divided Court has invalidated one statutory scheme which permitted capital punishment to be imposed for crimes committed before age 16, but has upheld other statutes authorizing capital punishment for crimes committed by 16 and 17 year olds. Important to resolution of the first case was the fact that Oklahoma set no minimum age for capital punishment, but by separate provision allowed juveniles to be treated as adults for some purposes.[144] While four Justices favored a flat ruling that execution of anyone younger than 16 at the time of his offense is barred by the Eighth Amendment, concurring Justice O'Connor found Oklahoma's scheme defective as not having necessarily resulted from the special care and deliberation that must attend decisions to impose the death penalty.[145] The following year Justice O'Connor again provided the decisive vote when the Court in Stanford v. Kentucky[146] held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17. Like Oklahoma, neither Kentucky nor Missouri[147] directly specified a minimum age for the death penalty. To Justice O'Connor, however, the critical difference was that there clearly was no national consensus forbidding imposition of capital punishment on 16 or 17-year- old murderers, whereas there was such a consensus against execution of 15 year olds.[148]This lack of consensus apparently continued in 2002. In Atkins v. Virginia, the Court contrasted the national consensus said to have developed against executing the mentally retarded with the situation regarding execution of juvenile offenders over age 15, and noted that only two state legislatures had raised the threshold age.[149]

The Stanford Court was split over the appropriate scope of inquiry in cruel and unusual punishment cases. Justice Scalia's plurality would focus almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment.[150] The Stanford dissenters would have broadened this inquiry with a proportionality review that considers the defendant's culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, and that looks to other statutory age classifications to arrive at a conclusion about the level of maturity and responsibility that society expects of juveniles.[151] As indicated above, the Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own "evaluation" into play along with their analysis of consensus on the issue of executing the mentally retarded.

Limitations on Capital Punishment: Equality of Application

One of the principal objections to imposition of the death penalty, voiced by Justice Douglas in his concurring opinion in Furman, was that it was not being administered fairly-that the capital sentencing laws vesting "practically untrammeled discretion" in juries were being used as vehicles for racial discrimination, and that "discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments."[152] This argument has not carried the day. Although the Court has acknowledged the possibility that the death penalty may be administered in a racially discriminatory manner, it has made proof of such discrimination quite difficult.

A measure of protection against jury bias was provided by the Court's holding that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias."[153]

Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp[154] that a strong statistical showing of racial disparity in capital sentencing cases is insufficient to establish an Eighth Amendment violation. Statistics alone do not establish racial discrimination in any particular case, the Court concluded, but "at most show only a likelihood that a particular factor entered into some decisions."[155] Just as important to the outcome, however, was the Court's application of the two overarching principles of prior capital punishment cases: that a state's system must narrow a sentencer's discretion to impose the death penalty (e.g., by carefully defining "aggravating"' circumstances), but must not constrain a sentencer's discretion to consider mitigating factors relating to the character of the defendant. While the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty,[156] the majority emphasized the need to preserve jury discretion not to impose capital punishment. Reliance on statistics to establish a prima facie case of discrimination, the Court feared, could undermine the requirement that capital sentencing jurors "focus their collective judgment on the unique characteristics of a particular criminal defendant"- a focus that can result in "final and unreviewable" leniency.[157]

Limitations on Habeas Corpus Review of Capital Sentences

The Court's rulings limiting federal habeas corpus review of state convictions, reinforced by the Antiterrorism and Effective Death Penalty Act of 1996,[158] may be expected to reduce significantly the amount of federal court litigation over state imposition of capital punishment. In the habeas context, the Court has flatly rejected the "death is different" approach by applying to capital cases the same rules that limit federal petitions in non-capital cases.[159]

The Court held in Penry v. Lynaugh[160] that its Teague v. Lane[161] rule of nonretroactivity applies to capital sentencing challenges. Under Teague, "new rules" of constitutional interpretation announced after a defendant's conviction has become final will not be applied in habeas cases unless one of two exceptions applies. The exceptions will rarely apply. One exception is for decisions placing certain conduct or defendants beyond the reach of the criminal law, and the other is for decisions recognizing a fundamental procedural right "without which the likelihood of an accurate conviction is seriously diminished."[162] Further restricting the availability of federal habeas review is the Court's definition of "new rule." Interpretations that are a logical outgrowth or application of an earlier rule are nonetheless "new rules" unless the result was "dictated" by that precedent.[163] While in Penry itself the Court determined that the requested rule (requiring an instruction that the jury consider mitigating evidence of the defendant's mental retardation and abused childhood) was not a "new rule" because it was dictated by Eddings and Lockett, in subsequent habeas capital sentencing cases the Court has found substantive review barred by the "new rule" limitation.[164]

A second restriction on federal habeas review also has ramifications for capital sentencing review. Claims that state convictions are unsupported by the evidence are weighed by a "rational factfinder" inquiry: "viewing the evidence in the light most favorable to the prosecution, [could] any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt."[165] This same standard for reviewing alleged errors of state law, the Court determined, should be used by a federal habeas court to weigh a claim that a generally valid aggravating factor is unconstitutional as applied to the defendant.[166] In addition, the Court has held that, absent an independent constitutional violation, habeas corpus relief for prisoners who assert innocence based on newly discovered evidence should generally be denied.[167] While a majority of the Justices accepted the general principle that execution of the innocent is unconstitutional,[168] the different five-Justice majority that determined the outcome in the case indicated that the "traditional remedy" has been executive clemency.[169]

Third, a different harmless error rule is applied when constitutional errors are alleged in habeas proceedings. The Chapman v. California[170] rule applicable on direct appeal, requiring the State to prove beyond a reasonable doubt that a constitutional error is harmless, is inappropriate for habeas review, the Court concluded, given the "secondary and limited" role of federal habeas proceedings.[171] The appropriate test is that previously used only for non-constitutional errors: "whether the error has substantial and injurious effect or influence in determining the jury's verdict."[172]

A fourth rule was devised to prevent successive "abusive" or defaulted habeas petitions. Federal courts are barred from hearing such claims unless the defendant can show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law.[173]

The Antiterrorism and Effective Death Penalty Act prohibits federal habeas relief based on claims that were adjudicated on the merits in state court unless the state decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."[174] The Court's decision in Bell v. Cone,[175] rejecting a claim that an attorney's failure to present mitigating evidence during the capital sentencing phase of a trial and his waiver of a closing argument at sentencing should entitle a condemned prisoner to relief, illustrates how these restrictions can operate to defeat challenges to state-imposed death sentences.[176]

The Court has also ruled that a death row inmate has no constitutional right to an attorney to help prepare a petition for state collateral review.[177]

Proportionality

Justice Field in O'Neil v. Vermont[178] argued in dissent that in addition to prohibiting punishments deemed barbarous and inhumane the Eighth Amendment also condemned "all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged." In Weems v. United States,[179] this view was adopted by the Court in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveil-lance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: "This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice."[180]Punishments as well as fines, therefore, can be condemned as excessive.[181]

In Robinson v. California[182] the Court carried the principle to new heights, setting aside a conviction under a law making it a crime to "be addicted to the use of narcotics." The statute was unconstitutional because it punished the "mere status" of being an addict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the State or had committed any act at all within the State's power to proscribe, and because addiction is an illness which-however it is acquired- physiologically compels the victim to continue using drugs. The case could stand for the principle, therefore, that one may not be punished for a status in the absence of some act,[183]or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct he is unable to control, a holding of far-reaching importance.[184] In Powell v. Texas,[185] a majority of the Justices took the latter view of Robinson, but the result, because of a view of the facts held by one Justice, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether the Eighth Amendment or the due process clauses will govern the requirement of the recognition of capacity defenses to criminal charges, or whether either will, remains to be decided in future cases.

The Court has gone back and forth in its acceptance of proportionality analysis in noncapital cases. It appeared that such analysis had been closely cabined in Rummel v. Estelle,[186] upholding a mandatory life sentence under a recidivist statute following a third felony conviction, even though the defendant's three nonviolent felonies had netted him a total of less than $230. The Court reasoned that the unique quality of the death penalty rendered capital cases of limited value, and Weems was distinguished on the basis that the length of the sentence was of considerably less concern to the Court than were the brutal prison conditions and the post-release denial of significant rights imposed under the peculiar Philippine penal code. Thus, in order to avoid improper judicial interference with state penal systems, Eighth Amendment judgments must be informed by objective factors to the maximum extent possible. But when the challenge to punishment goes to the length rather than the seriousness of the offense, the choice is necessarily subjective. Therefore, the Rummel rule appeared to be that States may punish any behavior properly classified as a felony with any length of imprisonment purely as a matter legislative grace.[187] The Court dismissed as unavailing the factors relied on by the defendant. First, the fact that the nature of the offense was nonviolent was found not necessarily relevant to the seriousness of a crime, and the determination of what is a "small" amount of money, being so subjective, was a legislative task. In any event, the State could focus on recidivism, not the specific acts. Second, the comparison of punishment imposed for the same offenses in other jurisdictions was found unhelpful, differences and similarities being more subtle than gross, and in any case in a federal system one jurisdiction would always be more severe than the rest. Third, the comparison of punishment imposed for other offenses in the same State ignored the recidivism aspect.[188]

Rummel was distinguished in Solem v. Helm,[189] the Court stating unequivocally that the cruel and unusual punishments clause "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed," and that "[t]here is no basis for the State's assertion that the general principle of proportionality does not apply to felony prison sentences."[190] Helm, like Rummel, had been sentenced under a recidivist statute following conviction for a nonviolent felony involving a small amount of money.[191] The difference was that Helm's sentence of life imprisonment without possibility of parole was viewed as "far more severe than the life sentence we described in Rummel."[192] Rummel, the Court pointed out, had been eligible for parole after 12 years' imprisonment, while Helm had only the possibility of executive clemency, characterized by the Court as "nothing more than a hope for 'an ad hoc exercise of clemency."'[193] In Helm the Court also spelled out the "objective criteria" by which proportionality issues should be judged: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."[194] Measured by these criteria Helm's sentence was cruel and unusual. His crime was relatively minor, yet life imprisonment without possibility for parole was the harshest penalty possible in South Dakota, reserved for such other offenses as murder, manslaughter, kidnapping, and arson. In only one other state could he have received so harsh a sentence, and in no other state was it mandated.[195]

The Court remained closely divided in holding in Harmelin v. Michigan[196] that a mandatory term of life imprisonment without possibility of parole was not cruel and unusual as applied to the crime of possession of more than 650 grams of cocaine. There was an opinion of the Court only on the issue of the mandatory nature of the penalty, the Court rejecting an argument that sentencers in non-capital cases must be allowed to hear mitigating evidence.[197] As to the length of sentence, three majority Justices-Kennedy, O'Connor, and Souter-would recognize a narrow proportionality principle, but considered Harmelin's crime severe and by no means grossly disproportionate to the penalty imposed.[198]

Twelve years after Harmelin the Court still could not reach a consensus on rationale for rejecting a proportionality challenge to California's "three-strikes" law, as applied to sentence a repeat felon to 25 years to life imprisonment for stealing three golf clubs valued at $399 apiece.[1] A plurality of three Justices (O'Connor, Kennedy, and Chief Justice Rehnquist) determined that the sentence was "justified by the State's public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the petitioner's] long, serious criminal record,"and hence was not the "rare case" of "gross disproportional [ity]." [2] The other two Justices voting in the majority were Justice Scalia, who objected that the proportionality principle cannot be intelligently applied when the penological goal is incapacitation rather than retribution,[3] and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause "contains no proportionality principle." [4] Not surprisingly, the Court also rejected a habeas corpus challenge to California's "three-strikes" law for failure to clear the statutory hurdle of establishing that the sentencing was contrary to, or an unreasonable application of, "clearly established federal law." [5] Justice O'Connor's opinion for a five-Justice majority explained, in under-statement, that the Court's precedents in the area "have not been a model of clarity . . . that have established a clear or consistent path for courts to follow." [6]

Prisons and Punishment

"It is unquestioned that '[c]onfinement' in a prison . . . is a form of punishment subject to scrutiny under the Eighth Amendment standards."[199] "Conditions in prison must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.... Conditions . . . , alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities.... But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society."[200] These general principles apply both to the treatment of individuals[201] and to the creation or maintenance of prison conditions that are inhumane to inmates generally.[202] Ordinarily there is both a subjective and an objective inquiry. Before conditions of confinement not formally meted out as punishment by the statute or sentencing judge can qualify as "punishment," there must be a culpable, "wanton" state of mind on the part of prison officials.[203] In the context of general prison conditions, this culpable state of mind is "deliberate indifference";[204] in the context of emergency actions, e. g., actions required to suppress a disturbance by inmates, only a malicious and sadistic state of mind is culpable.[205] When excessive force is alleged, the objective standard varies depending upon whether that force was applied in a good-faith effort to maintain or restore discipline, or whether it was applied maliciously and sadistically to cause harm. In the good-faith context, there must be proof of significant injury. When, however, prison officials "maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated," and there is no need to prove that "significant injury" resulted.[206]

Beginning with Holt v. Sarver,[207] federal courts found prisons or entire prison systems violative of the cruel and unusual punishments clause, and broad remedial orders directed to improving prison conditions and ameliorating prison life were imposed in more than two dozen States.[208] But while the Supreme Court expressed general agreement with the thrust of the lower court actions, it set aside two rather extensive decrees and cautioned the federal courts to proceed with deference to the decisions of state legislatures and prison administrators.[209] In both cases, the prisons involved were of fairly recent vintage and the conditions, while harsh, did not approach the conditions described in many of the lower court decisions that had been left undisturbed.[210] Thus, concerns of federalism and of judicial restraint apparently actuated the Court to begin to curb the lower federal courts from ordering remedial action for systems in which the prevailing circumstances, given the resources States choose to devote to them, "cannot be said to be cruel and unusual under contemporary standards."[211]

Congress initially encouraged litigation over prison conditions by enactment in 1980 of the Civil Rights of Institutionalized Persons Act,[212] but then in 1996 added restrictions through enactment of the Prison Litigation Reform Act.[213] The Court upheld the latter law's provision for an automatic stay of prospective relief upon the filing of a motion to modify or terminate that relief, ruling that separation of powers principles were not violated.[214]

Limitation of the Clause to Criminal Punishments

The Eighth Amendment deals only with criminal punishment, and has no application to civil processes. In holding the Amendment inapplicable to the infliction of corporal punishment upon schoolchildren for disciplinary purposes, the Court explained that the cruel and unusual punishments clause "circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished as such."[215]These limitations, the Court thought, should not be extended outside the criminal process.

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[1] Stack v. Boyle, 342 U.S. 1, 4 (1951). Note that in Bell v. Wolfish, 441 U.S. 520, 533 (1979), the Court enunciated a narrower view of the presumption of innocence, describing it as "a doctrine that allocates the burden of proof in criminal trials," and denying that it has any "application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun."

[2] Carlson v. Landon, 342 U.S. 524, 545 (1952). Justice Black in dissent accused the Court of reducing the provision "below the level of a pious admonition" by saying in effect that "the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away." Id. at 556.

[3] The only recorded comment of a Member of Congress during debate on adoption of the "excessive bail" provision was that of Mr. Livermore. "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be judges?" 1 ANNALS OF CONGRESS 754 (1789).

[4] Still the best and most comprehensive treatment is Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REV. 959, 965-89 (1965), reprinted in C. FOOTE, STUDIES ON BAIL 181, 187-211 (1966).

[5] 3 Edw. 1, ch. 12.

[6] 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 233-43 (1833). The statute is summarized at pp. 234-35.

[7] 3 How. St. Tr. 1 (1627).

[8] 3 Charles 1, ch. 1. Debate on the Petition, as precipitated by Darnel's Case, is reported in 3 How. St. Tr. 59 (1628). Coke especially tied the requirement that imprisonment be pursuant to a lawful cause reportable on habeas corpus to effectuation of the right to bail. Id. at 69.

[9] Jenkes' Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676).

[10] 31 Charles 2, ch. 2. The text is in 2 DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 327-340 (Z. Chafee ed., 1951).

[11] I W. & M. 2, ch. 2, clause 10.

[12] 7 F. Thorpe, The Federal and State Constitutions, H. R. DOC. NO. 357, 59TH CONG., 2D SESS. 3813 (1909). "Sec. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

[13] 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 658 (2d ed. 1836).

[14] 1 ANNALS OF CONGRESS 438 (1789).

[15] "No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, If he can put in sufficient securtie, bayle, or mainprise, for his appearance, and good behavior in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it." Reprinted in I DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS 79, 82 (Z. Chafee ed., 1951).

[16] "That all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great." 5 F. Thorpe, The Federal and State Constitutions, H. DOC. NO. 357, 59TH Congress, 2d Sess. 3061 (1909) (Pennsylvania, 1682). The 1776 Pennsylvania constitution contained the same clause in section 28, and in section 29 was a clause guaranteeing against excessive bail. Id. at 3089.

[17] "All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted." Art. II, 32 JOURNALS OF THE CONTINENTAL CONGRESS 334 (1787), reprinted in 1 Stat. 50 n.

[18] "And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion herein...." 1 Stat. 91 § 33 (1789).

[19] Congress first provided for pretrial detention without bail of certain persons and certain classes of persons in the District of Columbia. D.C. Code, §§ 23-1321 et seq., held constitutional in United States v. Edwards, 430 A.2d 1321 (D. C. App. 1981), cert. denied, 455 U.S. 1022 (1982). The law applies only to persons charged with violating statutes applicable exclusively in the District of Columbia, United States v. Thompson, 452 F.2d 1333 (D.C. Cir. 1971), cert. denied, 405 U.S. 998 (1978), while in other federal courts, the Bail Reform Act of 1966, as amended, applies. 80 Stat. 214, 18 U.S.C. §§ 3141-56. Amendments contained in the Bail Reform Act of 1984 added general preventive detention authority. See 18 U.S.C. § 3142(d) and (e). Those amendments authorized pretrial detention for persons charged with certain serious crimes (e.g., crimes of violence, capital crimes, and crimes punishable by 10 or more years' imprisonment) if the court or magistrate finds that no conditions will reasonably assure both the appearance of the person and the safety of others. Detention can also be ordered in other cases where there is a serious risk that the person will flee or that the person will attempt to obstruct justice. Preventive detention laws have also been adopted in some States. Parker v. Roth, 202 Neb. 850, 278 N.W. 2d 106, cert. denied, 444 U.S. 920 (1979).

[20] Schall v. Martin, 467 U.S. 253 (1984).

[21] 481 U.S. 739 (1988).

[22] 481 U.S. at 753.

[23] 481 U.S. at 754.

[24] 481 U.S. at 755. The Court also ruled that there was no violation of due process, the governmental objective being legitimate and there being a number of procedural safeguards (detention applies only to serious crimes, the arrestee is entitled to a prompt hearing, the length of detention is limited, and detainees must be housed apart from criminals).

[25] Stack v. Boyle, 342 U.S. 1, 4-6 (1951).

[26] United States v. Salerno, 481 U.S. at 754.

[27] Stack v. Boyle, 342 U.S. at 6-7.

[28] Hudson v. Parker, 156 U.S. 277 (1895).

[29] Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574 (1833).

[30] Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 435 (1921).

[31] Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).

[32] Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989).

[33] 492 U.S. at 265.

[34] 492 U.S. at 266.

[35] 492 U.S. at 268.

[36] In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the excessive fines clause to civil forfeiture did not depend on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be seen as punishment. The Court was apparently willing to consider any number of factors in making this evaluation; civil forfeiture was found to be at least partially intended as punishment, and thus limited by the clause, based on its common law roots, its focus on culpability, and various indications in the legislative histories of its more recent incarnations.

[37] United States v. Bajakajian, 524 U.S. 321, 334 (1998).

[38] 524 U.S. 321 (1998).

[39] The Court held that a criminal forfeiture, which is imposed at the time of sentencing, should be considered a fine, because it serves as a punishment for the underlying crime. 524 U.S. at 328. The Court distinguished this from civil forfeiture, which, as an in rem proceeding against property, would generally not function as a punishment of the criminal defendant. 524 U.S. at 330-32.

[40] 524 U.S. at 334.

[41] In Bajakajian, the lower court found that the currency in question was not derived from illegal activities, and that the defendant, who had grown up a member of the Armenian minority in Syria, had failed to report the currency out of distrust of the government. 524 U.S. at 325-26. The Court found it relevant that the defendant did not appear to be among the class of persons for whom the statute was designed, i.e. a money launderer or tax evader, and that the harm to the government from the defendant's failure to report the currency was minimal. 524 U.S. at 338.

[42] 1 ANNALS OF CONGRESS 754 (1789).

[43] E.g., 2 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 111 (2d ed. 1836); 3 id. at 447-52.

[44] See Granucci, 'Nor Cruel and Unusual Punishments Inflicted' : The Original Meaning, 57 CALIF. L. REV. 839 (1969). Disproportionality, in any event, was utilized by the Court in Weems v. United States, 217 U.S. 349 (1910). It is not clear what, if anything, the word "unusual" adds to the concept of "cruelty" (but see Furman v. Georgia, 408 U.S. 238, 276 n.20 (1972) (Justice Brennan concurring)), although it may have figured in Weems, 217 U.S. at 377, and in Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958) (plurality opinion), and it did figure in Harmelin v. Michigan, 501 U.S. 957 , 994-95 (1991) ("severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history").

[45] Wilkerson v. Utah, 99 U.S. 130 (1878); In re Kemmler, 136 U.S. 436 (1890); cf. Weems v. United States, 217 U.S. 349, 368-72 (1910). On the present Court, Chief Justice Rehnquist subscribes to this view (see, e.g., Woodson v. North Carolina, 428 U.S. 280, 208 (dissenting)), and the views of Justices Scalia and Thomas appear to be similar. See, e.g., Harmelin v. Michigan, 501 U.S. 957 , 966-90 (1991) (Justice Scalia announcing judgment of Court) (relying on original understanding of Amendment and of English practice to argue that there is no proportionality principle in non-capital cases); and Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Justice Thomas dissenting) (objecting to Court's extension of the Amendment "beyond all bounds of history and precedent" in holding that "significant injury" need not be established for sadistic and malicious beating of shackled prisoner to constitute cruel and unusual punishment).

[46] 217 U.S. 349 (1910).

[47] 217 U.S. at 376-77.

[48] Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion). This oft- quoted passage was recently repeated, the Court adding that cruel and unusual punishment "is judged not by the standards that prevailed in 1685 . . . or when the Bill of Rights was adopted, but rather by those that currently prevail." Atkins v. Virginia, 122 S. Ct. 2242, 2247 (2002).

[49] See Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978).

[50] Wilkerson v. Utah, 99 U.S. 130 , 135 (1878).

[51] Hanging was the other method of execution commonly used at the time, and implicitly approved by the Court.

[52] In re Kemmler, 136 U.S. 436 (1890).

[53] Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Justice Frankfurter tested the issue by due process standards. Id. at 470 (concurring). Years earlier the Court, although recognizing that the Eight Amendment was then inapplicable to the states, opined in dictum that a fine and brief imprisonment for illegal sale of alcohol was not cruel and unusual punishment. Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 479-80 (1867).

[54] 356 U.S. 86 (1958). Again the Court was divided. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. Id. at 114. Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. Id. at 121, 124-27.

[55] 356 U.S. at 99-100. The action of prison guards in handcuffing a prisoner to a hitching post for long periods of time violated basic human dignity and constituted "gratuitous infliction of 'wanton and unnecessary pain"' prohibited by the Clause. Hope v. Pelzer, 122 S. Ct. 2508, 2515 (2002).

[56] 408 U.S. 238 (1972).

[57] See Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355 (1995).

[58] See, e.g., Gardner v. Florida, 430 U.S. 349, 357-58 (1977): "From the point of view of the defendant, [death] is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance . . . that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion."

[59] See, e.g., Barefoot v. Estelle, 463 U.S. 880, 888 (1983): "unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding. Accordingly, federal courts must isolate the exceptional cases where constitutional error requires retrial or resentencing as certainly and swiftly as orderly procedures will permit." See also Gomez v. United States District Court, 503 U.S. 653 (1992) (vacating orders staying an execution, and refusing to consider, because of "abusive delay," a claim that "could have been brought more than a decade ago"-that California's method of execution (cyanide gas) constitutes cruel and unusual punishment).

[60] In Herrera v. Collins, 506 U.S. 390, 405 (1993), the Court rejected the position that "the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus," and also declared that, because of "the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, . . . the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417.

[61] See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

[62] Gone too is Justice Blackmun, whose early support for capital punishment gave way near the end of his career to a belief that the Court's effort to reconcile the twin goals of fairness to the individual defendant and consistency and rationality of sentencing had failed, and that the death penalty "as currently administered, is unconstitutional." Callins v. Collins, 510 U.S. 1141 , 1159 (1994) (dissenting from denial of cert.)

[63] 356 U.S. 86, 99 (1958).

[64] In Rudolph v. Alabama, 375 U.S. 889 (1963), Justices Goldberg, Douglas, and Brennan, dissenting from a denial of certiorari, argued that the Court should have heard the case to consider whether the Constitution permitted the imposition of death "on a convicted rapist who has neither taken nor endangered human life," and presented a line of argument questioning the general validity of the death penalty under the Eighth Amendment. The Court addressed exclusion of death-scrupled jurors in Witherspoon v. Illinois, 391 U. S. 510 (1968). See also Davis v. Georgia, 429 U.S. 122 (1976), and Adams v. Texas, 448 U.S. 38 (1980) (explicating Witherspoon). The Eighth Amendment was the basis for grant of review in Boykin v. Alabama, 395 U.S. 238 (1969) and Maxwell v. Bishop, 398 U.S. 262 (1970), but membership changes on the Court resulted in decisions on other grounds.

[65] 402 U.S. 183 (1971). McGautha was decided in the same opinion with Crampton v. Ohio. McGautha raised the question whether provision for imposition of the death penalty without legislative guidance to the sentencing authority in the form of standards violated the due process clause; Crampton raised the question whether due process was violated when both the issue of guilt or innocence and the issue of whether to impose the death penalty were determined in a unitary proceeding. Justice Harlan for the Court held that standards were not required because, ultimately, it was impossible to define with any degree of specificity which defendant should live and which die; while bifurcated proceedings might be desirable, they were not required by due process.

[66] 408 U.S. 238 (1972). The change in the Court's approach was occasioned by the shift of Justices Stewart and White, who had voted with the majority in McGautha.

[67] 408 U.S. at 257 (Justice Brennan).

[68] 408 U.S. at 314 (Justice Marshall).

[69] 408 U.S. at 240 (Justice Douglas).

[70] 408 U.S. at 306 (Justice Stewart).

[71] 408 U.S. at 310 (Justice White). The four dissenters, in four separate opinions, argued with different emphases that the Constitution itself recognized capital punishment in the Fifth and Fourteenth Amendments, that the death penalty was not "cruel and unusual" when the Eighth and Fourteenth Amendments were proposed and ratified, that the Court was engaging in a legislative act to strike it down now, and that even under modern standards it could not be considered "cruel and unusual." Id. at 375 (Chief Justice Burger), 405 (Justice Blackmun), 414 (Justice Powell), 465 (Justice Rehnquist). Each of the dissenters joined each of the opinions of the others.

[72] Collectors of judicial "put downs" of colleagues should note Justice Rehnquist's characterization of the many expressions of faults in the system and their correction as "glossolalial." Woodson v. North Carolina, 428 U.S. 280 , 317 (1976) (dissenting).

[73] Justice Frankfurter once wrote of the development of the law through "the process of litigating elucidation." International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 619 (1958). The Justices are firm in declaring that the series of death penalty cases failed to conform to this concept. See, e.g., Chief Justice Burger, Lockett v. Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) ("The signals from this Court have not . . . always been easy to decipher"); Justice White, id. at 622 ("The Court has now completed its about-face since Furman") (concurring in result); and Justice Rehnquist, id. at 629 (dissenting) ("the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed"), and id. at 632 ("I am frank to say that I am uncertain whether today's opinion represents the seminal case in the exposition by this Court of the Eighth and Fourteenth Amendments as they apply to capital punishment, or whether instead it represents the third false start in this direction within the past six years").

[74] On crimes not involving the taking of life or the actual commission of the killing by a defendant, see Coker v. Georgia, 433 U.S. 584 (1977) (rape); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder committed by confederate). Those cases in which a large threat, though uneventuated, to the lives of many may have been present, as in airplane hijackings, may constitute an exception to the Court's narrowing of the crimes for which capital punishment may be imposed. The federal hijacking law, 49 U.S.C. § 1472, imposes death only when death occurs during commission of the hijacking. But the treason statute does not require a death to occur and represents a situation in which great and fatal danger might be presented. 18 U.S.C. § 2381.

[75] Justices Brennan and Marshall adhered to the view that the death penalty is per se unconstitutional. E.g., Coker v. Georgia, 433 U.S. 584, 600 (1977); Lockett v. Ohio, 438 U.S. 586, 619 (1978); Enmund v. Florida, 458 U.S. 782, 801 (1982).

[76] A comprehensive evaluation of the multiple approaches followed in Furman- era cases may be found in Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. PA. L. REV. 989 (1978).

[77] Thus, Justice Douglas thought the penalty had been applied discriminatorily, Furman v. Georgia, 408 U.S. 238 (1972), Justice Stewart thought it had been applied in an arbitrary, "wanton," and "freakish" manner , id. at 310, and Justice White thought it had been applied so infrequently that it served no justifying end. Id. at 313.

[78] The principal opinion was in Gregg v. Georgia, 428 U.S. 153 (1976) (upholding statute providing for a bifurcated proceeding separating the guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court). Statutes of two other States were similarly sustained, Proffitt v. Florida, 428 U.S. 242 (1976) (statute generally similar to Georgia's, with the exception that the trial judge, rather than jury, was directed to weigh statutory aggravating factors against statutory mitigating factors), and Jurek v. Texas, 428 U.S. 262 (1976) (statute construed as narrowing death-eligible class, and lumping mitigating factors into consideration of future dangerousness), while those of two other States were invalidated, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating death penalty for first-degree murder).

[79] Gregg v. Georgia, 428 U.S. 153, 168-87 (1976) (Justices Stewart, Powell, and Stevens); Roberts v. Louisiana, 428 U.S. 325 , 350-56 (1976) (Justices White, Black-mun, Rehnquist, and Chief Justice Burger). The views summarized in the text are those in the Stewart opinion in Gregg. Justice White's opinion basically agrees with this opinion in concluding that contemporary community sentiment accepts capital punishment, but did not endorse the proportionality analysis. Justice White's Furman dissent and those of Chief Justice Burger and Justice Blackmun show a rejection of proportionality analysis. Justices Brennan and Marshall dissented, reiterating their Furman views. Gregg, 428 U.S. at 227, 231.

[80] Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Justices Stewart, Powell, and Stevens composed the plurality, and Justices Brennan and Marshall concurred on the basis of their own views of the death penalty. 428 U.S. at 305, 306, 336.

[81] Here adopted is the constitutional analysis of the Stewart plurality of three. "[T]he holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds," Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976), a comment directed to the Furman opinions but equally applicable to these cases and to Lockett. See Marks v. United States, 430 U.S. 188, 192-94 (1977).

[82] The Stewart plurality noted its belief that jury sentencing in capital cases performs an important societal function in maintaining a link between contemporary community values and the penal system, but agreed that sentencing may constitutionally be vested in the trial judge. Gregg v. Georgia, 428 U.S. 153, 190 (1976). A definitive ruling came in Spaziano v. Florida, 468 U.S. 447 (1984), upholding a provision under which the judge can override a jury's advisory life imprisonment sentence and impose the death sentence. "[Tlhe purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge." Id. at 462-63. Consequently, a judge may be given significant discretion to override a jury sentencing recommendation, as long as the court's decision is adequately channeled to prevent arbitrary results. Harris v. Alabama, 513 U.S. 504 (1995) (Eighth Amendment not violated where judge is only required to "consider" a capital jury's sentencing recommendation). The Sixth Amendment right to jury trial is violated, however, if the judge makes factual findings (e.g., as to the existence of aggravating circumstances) on which a death sentence is based. Ring v. Arizona, 122 S. Ct. 2258 (2002).

[83] Gregg v. Georgia, 428 U.S. 153, 188-95 (1976). Justice White seemed close to the plurality on the question of standards, id. at 207 (concurring), but while Chief Justice Burger and Justice Rehnquist joined the White opinion "agreeing" that the system under review "comports" with Furman, Justice Rehnquist denied the constitutional requirement of standards in any event. Woodson v. North Carolina, 428 U.S. 280 , 319-21 (1976) (dissenting). In McGautha v. California, 402 U.S. 183, 207- 08 (1971), the Court had rejected the argument that the absence of standards violated the due process clause. On the vitiation of McGautha, see Gregg, 428 U.S. at 195 n.47, and Lockett v. Ohio, 438 U.S. 586, 598-99 (1978). In assessing the character and record of the defendant, the jury may be required to make a judgment about the possibility of future dangerousness of the defendant, from psychiatric and other evidence. Jurek v. Texas, 428 U.S. 262 , 275-76 (1976). Moreover, testimony of psychiatrists need not be based on examination of the defendant; general responses to hypothe

Eighth Amendment: Further Guarantees In Criminal Cases

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Excessive Bail