Last updated on: 6/6/2013 | Author:

Is the Death Penalty Unconstitutional?

  1. Amendment V
    1. Does the death penalty violate the 5th Amendment?
  2. Amendment VIII
    1. Does the death penalty violate the 8th Amendment?
    2. Does the death penalty violate the 8th Amendment when applied specifically to mentally retarded criminals?
    3. Does the death penalty violate the 8th Amendment when applied specifically to juveniles?
  3. Amendment XIV
    1. Does the death penalty violate the 14th Amendment?

A. Amendment V (ratified 1791):

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


1. Does the death penalty violate the 5th Amendment?
Jed S. Rakoff, JD, US District Judge in the Southern District of New York, ruled that the death penalty violates the due process clause of the 5th Amendment in his July 1, 2002 ruling in US v. Quinones:

“[T]o this Court, the unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected (and then often only fortuitously or by application of newly-developed techniques), compels the conclusion that execution under the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.”

July 1, 2002 Jed S. Rakoff, JD

[Editor’s note: The US Court of Appeals for the Second District overturned the ruling of Judge Rakoff on the grounds that lower courts must adhere to precedents set by Supreme Court decisions.]

  William D. Richardson, PhD, Chair of the Department of Political Science at the University of South Dakota, et al., in their 2002 book The Leviathan’s Choice, wrote:

“[F]ar from supporting the position advocated by death penalty opponents, the Fifth Amendment can be read as evidence that the Founders inherently supported the death penalty… If a person can never be deprived of life by the state, why is the clause ‘without due process of law’ necessary?… By including a phrase that allowed for the possibility that citizens might be denied their life, liberty, or property if certain procedural safeguards were in place–‘due process’–they implied that individual life might be taken by the state under the right circumstances.”

2002 William D. Richardson, PhD



B. Amendment VIII (ratified 1791):

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


1. Does the death penalty violate the 8th Amendment?
William J. Brennan, JD, Justice of the US Supreme Court, in the July 2, 1976 dissenting opinion in Gregg v. Georgia, stated:

“Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment… The fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.’ As such it is a penalty that ‘subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].’ I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause… I would set aside the death sentences imposed… as violative of the Eighth and Fourteenth Amendments.”

July 2, 1976 William J. Brennan, JD



The 4th Global Summit of Nobel Peace Laureates, in a Nov. 30, 2003 meeting in Rome (attended by Mikhail Gorbachev, Simon Peres, the Dalai Lama, Mairead Corrigan Maguire, Lech Walesa, Betty Williams, Jody Williams, Arias Sanchez, and others), issued their formal position on the death penalty, which stated:

“After a special session, the Nobel Peace Prize Winners have agreed that the death penalty is a particularly cruel and unusual punishment that should be abolished. It is especially unconscionable when imposed on children.”

Nov. 30, 2003 4th Global Summit of Nobel Peace Laureates Final Statement



Amnesty International, in the Death Penalty Q&A section on its website (accessed Aug. 6, 2008), wrote:

“Amnesty International opposes the death penalty in all cases without exception. The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.”

Aug. 6, 2008 Amnesty International


The National Coalition Against the Death Penalty (NCADP) stated in an article titled “Problems Associated with Lethal Injection,” posted on its website (accessed Aug. 6, 2008):

“Recently, concerns have surfaced regarding Pavulon [a drug used in lethal injections], which could paralyze inmates to the point where they are unable to communicate any pain they are feeling from the following dose of potassium chloride. Painful, lengthy executions constitute violations of the 8th Amendment, which prohibits cruel and unusual punishment.

Aug. 6, 2008 National Coalition Against the Death Penalty

  In Baze v. Rees (decided Apr. 16, 2008), the US Supreme Court, in a decision written by Chief Justice John G. Roberts, held that:

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm” that qualifies as cruel and unusual…

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States… Kentucky’s decision to adhere to its protocol…cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment…

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment.”

Apr. 16, 2008 Baze v. Rees



In Trop v. Dulles (decided Mar. 31, 1958), the US Supreme Court, in a decision written by then Chief Justice Earl Warren, held that:

“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…

Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect…

The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Mar. 31, 1958 Trop v. Dulles



Kyle Janek, MD, anesthesiologist and former Texas State Senator, in his Feb. 1, 2004 article “Attack on Texas’ Lethal Injections is Bogus,” published in the Houston Chronicle, wrote:

“In what amounts to practicing medicine without a license, those critics have started to attack the inclusion of pancuronium bromide as one of the medications used in the lethal injection process. They claim its use is ‘cruel and unusual…’ As any other anesthesiologist will tell you, this argument involving pancuronium bromide is bogus…

The current argument against executions seems to hinge on the supposition that the second and 3rd drugs in this regimen would be cruel to someone who could feel them…

Yet for that argument to be valid in any way, you must ignore the 1st drug in the process – sodium pentothal – that (1) renders the inmate to be completely unconscious, (2) has been used for decades to induce anesthesia in surgical patients and (3) is given in doses far exceeding what is needed to keep the inmate from being aware or feeling anything.”

Feb. 1, 2004 Kyle Janek, MD


2. Does the death penalty violate the 8th Amendment when applied specifically to mentally retarded criminals?
In Atkins v. Virginia (decided June 20, 2002), the US Supreme Court, in a decision written by John Paul Stevens, held that:

“[D]eath is not a suitable punishment for a mentally retarded criminal… Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.”

June 20, 2002 Atkins v. Virginia

  Antonin Scalia, JD, Justice of the US Supreme Court, in his June 20, 2002 dissenting opinion in Atkins v. Virginia, stated:

“The [US Supreme] Court throws one last factor into its grab bag of reasons why execution of the retarded is ‘excessive’ in all cases: Mentally retarded offenders ‘face a special risk of wrongful execution’… I suppose a similar ‘special risk’ could be said to exist for just plain stupid people, inarticulate people, even ugly people… [B]ut it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual.”

June 20, 2002 Antonin Scalia, JD


3. Does the death penalty violate the 8th Amendment when applied specifically to juveniles?
In Roper v. Simmons (decided Mar. 1, 2005), the US Supreme Court, in a decision written by Justice Anthony Kennedy, held that:

“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed…

Once juveniles’ diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty–retribution and deterrence of capital crimes by prospective offenders–provides adequate justification for imposing that penalty on juveniles.”

Mar. 1, 2005 Roper v. Simmons

  Antonin Scalia, JD, Justice of the US Supreme Court, in the Mar. 1, 2005 dissenting opinion in Roper v. Simmons, stated:

“The Court ignores entirely the threshold inquiry in determining whether a particular punishment complies with the Eighth Amendment: whether it is one of the ‘modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.’ As we have noted in prior cases, the evidence is unusually clear that the Eighth Amendment was not originally understood to prohibit capital punishment for 16- and 17-year-old offenders.”

Mar. 1, 2005 Antonin Scalia, JD



C. Amendment XIV, Section I (ratified 1868):

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


1. Does the death penalty violate the 14th Amendment?
Ivan Eland, MBA, PhD, Senior Fellow and Director of the Center on Peace and Liberty, in his Aug. 18, 2003 article titled “Death to Capital Punishment,” posted on the Independent Institute website, wrote:

“Juries mete out the death penalty unfairly. The implementation of capital punishment includes discrimination on the basis of race, gender, and social class. That bias violates the Fourteenth Amendment’s guarantee that all persons will have equal protection under the law.”

Aug. 18, 2003 Ivan Eland, MBA, PhD

  In Gregg v. Georgia (decided July 2, 1976), the US Supreme Court, in a decision written by Justice Potter Stewart, held that:

“We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question. The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common law rule imposed a mandatory death sentence on all convicted murderers.”

July 2, 1976 Gregg v. Georgia