The use of the death penalty in the Americas dates to the 15th century when European settlers brought with them the practice of capital punishment. Because nowhere in the US Constitution is capital punishment explicitly addressed, the death penalty was imbued with intrinsic constitutionality by the Founding Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due process clause) of the Bill of Rights have attempted to provide guidelines on how capital punishment should be handled. The Fifth Amendment states that “no person shall be held to answer for a capital [crime], unless on a presentment or indictment of a Grand Jury,” while the Eighth Amendment states that “nor cruel and unusual punishments [be] inflicted.”
Although the death penalty was viewed as an acceptable form of punishment at the time the US Constitution was created, it did not take long for various states to begin to limit or even ban such practices. The first state to do so was Michigan in 1846. Today, 31 states still permit capital punishment. Although this number may represent a majority of the states, it may not represent the true national mood regarding capital punishment because many of these states have not had an execution in more than 10 years.
Over the years, the US Supreme Court has ruled on many cases that have addressed the topic of evolving standards of decency in regards to the Eighth Amendment. The 1910 Supreme Court case Weems v US helped define the notion of evolving standards as a basis to view historically accepted punishments as no longer acceptable in modern society. In the Weems case, a man was sentenced to multiple years of “hard and painful labor [in chains]” for the crime of falsifying documents.
Although the use of “irons” was common in the 1700s, the Court found that its use was not appropriate for a sentence in the 1900s. The term “evolving standards of decency” was coined by Chief Justice Earl Warren in Trop v Dulles (1958) when he noted that, when determining what punishment the Eighth Amendment prohibits, “evolving standards of decency . . . mark the progress of a maturing society.”1,2
The 1972 case of Furman v Georgia (1972) resulted in a brief national moratorium on the death penalty because of a 5 to 4 ruling that “[the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”3 In an unusual scenario, each justice wrote his own opinion, with Justices Brennan and Marshall citing evolving standards of decency to explain why they believed the death penalty was unconstitutional.
The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005) determined that because of evolving standards of decency, certain definable groups such as individuals with intellectual disability and minors could not be sentenced to death.4,5 In both instances, the Court, within a relatively short period, revisited the issue of an evolving standard after already having ruled on the issue, ie, execution of people with intellectual deficiencies previously addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky (1989).6,7 The majority opinion for Atkins v Virginia, written by Justice Stevens, noted that the “consistency of the direction of change,” but “not so much the number of these States [prohibiting the execution of individuals with intellectual disabilities],” was important in determining an evolving standard.4
The cases of Atkins v Virginia and Roper v Simmons are particularly interesting because the opinions were based on legal as well as scientific and medical principles. The legal principles that were discussed included whether the death penalty had a deterrent effect for these populations and whether these populations were at a fundamental disadvantage in defending themselves in the court system against the ultimate irreversible punishment. In Atkins v Virginia, Justice Stevens wrote, “. . . frequently [individuals with intellectual disability] know the difference between right and wrong and are competent to stand trial . . . [but] because of their impairments . . . by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.”4
Mr. Lee is a medical student at the University of Central Florida College of Medicine, Orlando, FL. Dr. Hall is Assistant Professor of Medicine, University of Central Florida College of Medicine; Affiliated Associate Professor, University of South Florida, Tampa, FL; and Adjunct Faculty Member, Barry University Law School, Orlando, FL.
The authors report no conflicts of interest concerning the subject matter of this article.
1. Death Penalty Information Center. https://deathpenaltyinfo.org/. Accessed May 4, 2017.
2. Trop v Dulles, 356 US 86 (1958).
3. Furman v Georgia, 408 US 238 (1972).
4. Atkins v Virginia, 536 US 304 (2002).
5. Roper v Simmons, 543 US 551 (2005).
6. Penry v Lynaugh, 302 US 492 (1989).
7. Stanford v Kentucky, 492 US 361 (1989).
8. Jones v Chappell, 31 F Supp.3d 1050 (CD Cal 2014).
9. American Psychiatric Association. Position Statement on Moratorium on Capital Punishment in the United States; 2000.
10. American Psychological Association. The Death Penalty in the United States. 2001. http://www.apa.org/about/policy/death-penalty.aspx. Accessed May 4, 2017.
11. American Bar Association. Mental Illness Resolution. 2006. http://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-policy/mental-illness-2006.html. Accessed May 5, 2017.
12. American Bar Association. Severe Mental Illness and the Death Penalty. Death Penalty Due Process Review Project. 2016. http://www.americanbar.org/groups/crsj/projects/death_penalty_due_process_review_project.html. Accessed May 4, 2017.
13. McDonald v United States, 335 US 451 (1948).
14. Hall v Florida, 572 US (2014).