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Limitations on the Death Penalty

Limitations within the United States

After World War II, many European countries abandoned or restricted the death penalty after signing and ratifying the Universal Declaration of Human Rights and subsequent human rights treaties. The U.S. retained the death penalty, but established limitations on capital punishment.

In 1977, the United States Supreme Court held in Coker v. Georgia (433 U.S. 584) that the death penalty is an unconstitutional punishment for the rape of an adult woman when the victim was not killed. Other limits to the death penalty followed in the next decade.

Mental Illness and Mental Retardation
 In 1986, the Supreme Court banned the execution of insane persons in Ford v. Wainwright (477 U.S. 399). However, in 1989, the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment in Penry v. Lynaugh (492 U.S. 584). Mental retardation would instead be a mitigating factor to be considered during sentencing.

On June 20, 2002, the Supreme Court issued a landmark ruling ending the execution of those with mental retardation. In Atkins v. Virginia, the Court held that it is a violation of the Eighth Amendment ban on cruel unusual punishment to execute death row inmates with mental retardation.

Race
Race became the focus of the criminal justice debate when the Supreme Court held in Batson v. Kentucky (476 U.S. 79 (1986)) that a prosecutor who exercises his or her peremptory challenges to remove a disproportionate number of citizens of the same race in selecting a jury is required to show neutral reasons for the strikes.

Race was again in the forefront when the Supreme Court decided a 1987 case, McCleskey v. Kemp (481 U.S. 279). McCleskey argued that there was racial discrimination in the application of Georgia's death penalty by presenting a statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The Supreme Court held, however, that racial disparities would not be recognized as a constitutional violation of “equal protection of the law” unless intentional racial discrimination against the defendant could be shown.

Juveniles
In March 2005, the United States Supreme Court ruled in Roper v. Simmons that the death penalty for those who had committed their crimes at under 18 years of age was cruel and unusual punishment and hence barred by the Constitution.

The Court reaffirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual.  The Court reasoned that the rejection of the juvenile death penalty in the majority of states, the infrequent use of the punishment even where it remains on the books, and the consistent trend toward abolition of the juvenile death penalty demonstrated a national consensus against the practice.  The Court determined that today our society views juveniles as categorically less culpable than the average criminal.

In the late 1980s, the Supreme Court decided three cases regarding the constitutionality of executing juvenile offenders. In 1988, in Thompson v. Oklahoma (487 U.S. 815), four Justices held that the execution of offenders aged fifteen and younger at the time of their crimes was unconstitutional. The fifth vote was Justice O'Connor's concurrence, which restricted Thompson to states without a specific minimum age limit in their death penalty statute. The combined effect of the opinions by the four Justices and Justice O'Connor in Thompson is that no state without a minimum age in its death penalty statute can execute someone who was under sixteen at the time of the crime.

The following year, the Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen. (Stanford v. Kentucky, and Wilkins v. Missouri (collectively, 492 U.S. 361)). 

In 1992, the United States ratified the International Covenant on Civil and Political Rights. Article 6(5) of this international human rights treaty requires that the death penalty not be used on those who committed their crimes when they were below the age of 18. However, although the U.S. ratified the treaty, they reserved the right to execute juvenile offenders.

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