United States Supreme Court
The U.S. Supreme Court has the final say on whether use of the death penalty is consistent with the U.S. Constitution. Since the 1970s, when the Court paused and then revived the death penalty nationwide, the Court has played a critical role in regulating how Americans use capital punishment.
Overview
The United States Supreme Court is the final arbiter of all legal questions about the U.S. Constitution. This power is especially critical in capital cases, because, in the Court’s words, “death is different” from all other punishments. It is irreversible — and therefore requires a “greater degree of reliability” in how it is used.
Until the 20th century, the Supreme Court left much of the practice of the death penalty and other punishments to the states’ discretion. Following several decades of decline in the use of the death penalty, the Court struck down existing capital statutes in 1972 because the arbitrary way the death penalty was being used amounted to cruel and unusual punishment. In response, dozens of state legislatures and elected officials rushed to draft new death penalty laws, with new protections and procedures to address the Court’s concerns. In 1976, the Court refused to find the death penalty unconstitutional per se — and upheld several of the new state laws, signaling the beginning of the “modern era” of the death penalty.
Since then, the Supreme Court has decided hundreds of cases regulating the constitutional protections and limits of nearly every aspect of capital punishment, including defendants, attorneys, trials, appeals, and executions. The Court regularly decides multiple capital cases each term out of hundreds of requests to hear arguments or stay executions. As appointments to the Court have become more ideological, the Court’s approach to death penalty cases often reflects deep division among the justices.
DPI tracks and analyzes the Supreme Court’s decisions in capital cases, and publishes research, studies, and reports that illuminate the Court’s role as an architect of the American death penalty system.
When the Supreme Court upheld Oklahoma’s lethal injection protocol in Glossip v. Gross (2015), Justice Stephen Breyer issued an impassioned dissent, joined by Justice Ruth Bader Ginsburg. “[R]ather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, it was time for the Court to reconsider the constitutionality of the death penalty itself.
The Court upheld the death penalty in 1976 under the belief that certain legal “safeguards” would keep the practice constitutional — but the “circumstances and the evidence…have changed radically since then,” Justice Breyer argued. “Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”
Justice Stephen Breyer
In his 41-page dissenting opinion, Justice Breyer cited a wealth of research to support each point, including data from the Death Penalty Information Center. To demonstrate unreliability, he highlighted “convincing evidence that…innocent people have been executed,” as well as high exoneration and error rates on appeal. Regarding arbitrariness, he found that “the factors that most clearly ought to affect application of the death penalty — namely, comparative egregiousness of the crime — often do not,” while “circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do.”
Justice Breyer then turned to one of his longstanding concerns: the delay before execution. He argued that the death penalty faced a “dilemma”: ensuring procedural fairness and reliability required complex appeals which could last decades. This delay could increase the psychological and physical cruelty of the punishment, while undermining its rationales of retribution and deterrence. However, minimizing those delays would jeopardize critical constitutional protections. “We cannot have both,” he concluded.
With the first three points making the punishment “cruel,” Justice Breyer cited data suggesting it was now “unusual”: significant declines in death sentences, executions, public support for the death penalty, and use of the practice internationally. While he acknowledged that countries and states abolishing the death penalty had most often done so through the legislature rather than the courts, he argued that the problems with the death penalty are “quintessentially judicial matters” going to the heart of the Eighth Amendment. “Thus we are left with a judicial responsibility,” he wrote. Justice Breyer retired from the Court in 2022; the Court has yet to hear the broad challenge to the death penalty he envisioned.
In its first major cases directly confronting use of the death penalty, the Court upheld the firing squad (Wilkerson v. Utah [1879]) and the newly invented electric chair (In re Kemmler [1890]) as constitutional methods of execution.
The Court expanded some protections for criminal defendants. In the 1930s, the Court overturned the convictions and death sentences of several of the “Scottsboro Boys,” nine Black teenagers falsely accused of raping two white women in Alabama. The Court held that the Constitution guarantees effective assistance of counsel in capital cases and bars the exclusion of jurors based on race.
Under Chief Justice Earl Warren, the Supreme Court held in a series of decisions that key constitutional protections applied in state criminal cases, including rights against unlawful search and seizure, self-incrimination, and cruel and unusual punishment, as well as rights to a speedy trial, an impartial jury, and the confrontation of adverse witnesses. At the same time, public support for the death penalty markedly declined, and advocacy groups such as the NAACP’s Legal Defense Fund set their sights on challenging the death penalty at the high court.
In a series of landmark decisions, the Court found that the death penalty was cruel and unusual as applied to people with intellectual disabilities (Atkins v. Virginia [2002]) and juveniles (Roper v. Simmons [2005]), due to their vulnerability and reduced culpability in the legal system. The Court also barred the death penalty for non-homicide crimes (Kennedy v. Louisiana [2008]). At the same time, the Court upheld and refined many death penalty procedures, including imposing a virtually unattainable legal standard to challenge methods of execution.
In recent years, alongside changes in the Court’s composition, the Court has pivoted from the major substantive decisions on capital punishment that defined prior decades. Since 2018, the Court’s capital cases have most often involved narrow questions of appellate procedure. Capital activity on the Court’s “shadow docket” — including summary decisions without oral argument, dissents from denials of review, and orders lifting stays of execution — often eclipses capital activity on the traditional docket.
What is originalism? This legal theory, first introduced in the 1980s, argues that laws should be interpreted based on their original meaning when they were adopted. In particular, originalists argue that the Constitution’s meaning is fixed at its adoption in 1789, and each amendment at its time of passage. By contrast, “living constitutionalists” argue that the text’s meaning should evolve with the times.
Originalism was prominently advocated by former Supreme Court Justice Antonin Scalia and has since gained several adherents on the Court. Critics argue, however, that determining a law’s original meaning is easier said than done, and the theory invites courts to cherry-pick historical evidence to support their desired outcome. By definition, originalism also limits the interpretation of most constitutional principles to an era when women and people of color were treated as second-class citizens — or not citizens at all.
In the death penalty context, originalists have primarily targeted the Eighth Amendment’s prohibition against cruel and unusual punishment. Since the 1950s, the Court has determined which punishments are unconstitutional based on the “evolving standards of decency” of American society. This legal standard undergirds landmark decisions exempting juveniles, people with intellectual disability, and people convicted of non-homicide crimes from execution. However, originalists argue that only punishments prohibited at the time of the Founding, such as medieval tortures, are barred by the Eighth Amendment. Some have advocated for those longstanding protections to be overturned.