Capital punishment is a controversial issue. The Eighth Amendment provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Over the years, the Supreme Court has construed the clause to prohibit torture, barbarism, and punishment grossly disproportionate to the offense. The death penalty has often been challenged on the grounds that it is per se (in and of itself) cruel and unusual punishment. But the Supreme Court has never accepted this argument. The death penalty is assumed to be constitutional because capital punishment was permissible when the Eighth Amendment was adopted and has been used ever since.  A majority of the justices have consistently held that the death penalty is cruel and unusual punishment for some crimes, but permissible for murder, attempted murder, or acting as an accomplice to murder.

During the 1970s, the Supreme Court decided that the administration of the death penalty constituted cruel and unusual punishment. Most of the controversy arose because of racial bias in the way death sentences were handed out. A majority of the justices held that the laws and procedures gave too much discretion to those who administered the punishment and too much arbitrariness and discrimination for minorities who received it. In Furman v. Georgia (1972), the Supreme Court found that the death penalty was administer in racially discriminatory manner in violation of cruel and unusual punishment clause. Concerns of randomness led Justice Potter Stewart to conclude that "death sentences are cruel and unusual in the same way that being struck by lightening is cruel and usual." A majority of the justices held that capital punishment was not cruel and unusual in principle, only in practice.

The decision overturned the laws of forty states and commuted the death sentences of 629 inmates. In response, the states rewrote their capital punishment statutes and created a bifurcated two-stage capital punishment procedure. The first stage is the trial where a jury considers whether the defendant is guilty of the criminal charges, while the second stage is a sentencing hearing where the jury decides whether there are aggravating to warrant a death sentence. About three-fourths of the states adopted new laws that permitted less discretion in an effort to be less arbitrary and discriminatory. After a ten year moratorium on executions, the Supreme Court held that capital punishment is not cruel and unusual for the crime of murder if administered fairly. A majority explained that the procedures must "ensure that death sentences are not meted out wantonly or freakishly" and "confer on the sentencer sufficient discretion to take account of the character and record of the individual offender and the circumstances of the particular offense to ensure that death is the appropriate punishment in a specific case." The death penalty cannot be imposed automatically for anyone convicted of murder because the fact-finder is required to consider any mitigating factors calling for a lesser punishment. A majority of the justices have held that the death penalty is cruel and unusual punishment for some crimes but permissible for murder, attempted murder, or acting as an accomplice to murder. For example, the justices have held that capital punishment for the crime of rape is disproportionate to the offense.  These decisions make clear that the judicial standard for judging what is cruel and unusual punishment changes with the evolving standards of a maturing society.

During the 1980s and 1990s, the Supreme Court made it easier to impose the death penalty and carry out executions. More states also added capital punishment  (now there are 38 states) and the national government increased the number of crimes for which offenders are eligible for the death penalty. As a result, the number of people on death row has increased dramatically. Since capital punishment was reinstated in 1976, more 600 people have be executed nationwide and more than 3,600 are currently on death row. Although the punishment is irrevocable, most people dismissed suggestions that innocent defendants might be put to death. They assumed that the criminal justice system used careful procedures and made no mistakes in these cases. But since capital punishment was reinstated in the 1970s with stricter procedures, eighty-five inmates awaiting execution have been released because new evidence actually proved their innocence beyond a reasonable doubt.

As the number of executions has increased, the concerns have also grown about the fairness of the administration of the death penalty. Due to patterns of racial discrimination and wrongful conviction, the American Bar Association called for a moratorium on the use of capital punishment in 1997. The American Civil Liberties Union and other prominent groups have called for a halt to executions because the death penalty is administered in ways that deny persons of the due process and equal protection of law. Even Christian televangelist Pat Robinson and Catholic Bishops favor a moratorium on executions. Illinois Republican Governor George Ryan declared such a moratorium after his state released its thirteenth innocent inmate on death row. More death row inmates were released from Illinois prisons in recent years who had been wrongly convicted than were even executed. Other prominent Republicans and Democrats are also beginning to question the fairness of the sentencing process for deciding whether to impose the death penalty.

The debate about the fairness of capital punishment was sparked by the increasing number of inmates who have been released because new DNA evidence proved their innocence and usually after spending a decade or more on death row. DNA evidence is useful only in rape or murder cases where blood, semen, or tissue samples remain. A recent Gallup poll found that 92 percent of Americans believe that prison inmates convicted before technology was available should be given the opportunity to submit to DNA tests now. This debate has refocused the controversy by drawing into question the fairness of the process of capital punishment. Critics point to the seemingly randomness in imposing the death penalty. Prosecutors seek the death penalty in less than 5 percent of all murder cases, and more when the victim is affluent and the defendant is a minority. Many defendants agree to plea bargains in exchange for life sentences. When murder trials are held, some juries refuse to impose the death penalty others do so rather quickly. And of the people sentenced to die, some receive clemency or are pardoned while others sit on death row for years before being executed or having their convictions reversed on appeal.

A recent study of 4,500 capital cases released in June 2000 found that more than two-thirds of all death sentences are overturned. The primary reasons are that the police overlook evidence, witnesses commit perjury, forensic experts exaggerate results, defense lawyers fail to provide adequate representation, and sometimes prosecutors withhold evidence. Besides the apparent randomness of the imposition of the death penalty, there is ample evidence showing that the imposition of the death penalty discriminates on the basis of race, gender, and wealth. Studies show discrimination against black or white defendants who murder white victims. Blacks who kill whites are much more likely to receive death sentences than either whites who murder blacks or blacks who kill blacks, and especially when the prosecutor is white. Data in Georgia show that defendants who kill whites are more than four times as likely to be given the death penalty than defendants who kill blacks. People who affect the decision to impose the death penalty--prosecutors, defense lawyers, judges, and jurors--appear to value white lives more. The new laws have not addressed an equally serious problem due to the unwillingness of the criminal justice system to impose death sentences on females and wealthy defendants. 

The American public generally supports the death penalty, but support has dropped recently to 66 percent in 2000, the lowest since 1978. Most people believe that the death penalty should be inflicted on persons who commit heinous murders. Others maintain that the death penalty is arbitrarily imposed and irreversible even when mistakes are discovered. Some people are morally opposed to capital punishment because they perceive the state as committing murder itself. The United States Japan are the only two industrialized countries to retain the death penalty. The fifteen members of the European Union outlawed capital punishment and courts in South Africa, Hungary, and other central and east European counties have declared the death penalty to be unconstitutional. Can capital punishment ever be fairly imposed given concerns about race, gender, wealth, and wrongful conviction?