Eighth Amendment and the Death Penalty

Does the Eighth Amendment prevent the death penalty from being carried out?

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As of July 2025, the death penalty is currently active in 27 of the 50 states in the United States (deathpenaltyinfo.org). The death penalty has been contested since about 1970s where in multiple instances the conviction was contested under the Eighth Amendment. The connection to the Eighth Amendment and the death penalty may seem inconspicuous, but with a deep dive begins to surface as two deeply connected ideas.

The Eight Amendment is written in the Constitution as  

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

In short a court may not be cruel or unusual in its punishments, bail, nor fine. 

For some, a death penalty may seem completely fitting for a crime that calls for it. For others, no matter the crime it is excessive and should be deemed as unusual. The facts of the matter have been constantly changing, thus they will be viewed. 

For the government, the death penalty was a way of preventing future capital crimes by preventing an offender from ever being able to repeat their crime or from more people committing capital crimes in fear of the death penalty.

The death penalty had existed in the United States since its birth. In McGautha v. California, a case ending in the death penalty, it was stated that there had almost always been a "rebellion against the common law rule imposing a mandatory death sentence on all convicted murderers." McGautha v. California, 402 U.S. 183 (1971)

The death penalty continued to exist in the United States up until 1972 where in Furman v. Georgia it was deemed as unconstitutional (deathpenaltyinfo.org). In Furman v. Georgia, three men were accused of high level crimes and charged with the death penalty. Fruman, one of the three men, was granted certiorari for his trial rising to the supreme court of Georgia. There, the court ruled that the death penalty was unconstitutional under the Eighth and Fourteenth Amendment.

Many years later in 1988 Maynard v. Cartwright was fought, changing the tone for the future. Cartwright had entered the house of his previous employer and killed her husband and had brutally injured her. The facts of this case being so horrendous, it got the death penalty from the jury. Initially, the ruling was denied under the Furman v. Georgia ruling, however, was later reinstated as the facts of the case were so cruel that it was unclear whether a death penalty wasn't fitting under the Eighth Amendment. No final call was made on the death penalty until 1994 when the Federal Death Penalty Act limited the amount of annual state executions to a set amount with federal executions being even more rare than state.

In summary, based on my assessment, the government allows the death penalty in all US states, however only a few states instate it. 

“​​State by State.”Death Penalty Information Center, 26 July 2025 ,https://deathpenaltyinfo.org/state-and-federal-info/state-by-state.

“​​Federal Death Penalty.”Death Penalty Information Center, 26 July 2025 https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty

Furman v. Georgia, 408 U.S. 238 (1972)

Maynard v. Cartwright, 486 U.S. 356 (1988)