The Death Penalty in the Supreme Court, a Timeline From Furman to Bucklew

Nine lawyers in black robes have spent half a century deciding which people the government may execute, how, and for what. They have not done it in one sweeping decision. They have done it the way the common law always does, one case at a time, each ruling closing one door and cracking another.

That makes the subject hard to follow from the outside. So here is a timeline: dated entries, a line on what each case held, and a line on why it mattered. Read it in order and you will see that the law is more settled than the shouting suggests, and also where it is still being fought.

A few terms before the dates

The Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nearly every case below is an argument about those last four words. Two ideas recur.

• Evolving standards of decency. Since Trop v. Dulles (1958), the Court has said the meaning of "cruel and unusual" is measured by the evolving standards of decency that mark the progress of a maturing society. Critics, including originalists, say that phrase hands judges a roving commission. Supporters say it is how the Constitution has always worked. Hold onto this, because it drives the cases in the 2000s.
• Categorical bars versus procedures. Some cases ask whether a punishment is ever allowed for a certain crime or kind of defendant. Others ask whether a state followed fair procedures or used an acceptable method. The first kind removes a category from the penalty. The second regulates how the penalty is carried out.

Now the dates.

1972 to 1977: the modern system is built

1972: Furman v. Georgia

June 29, 1972. In Furman v. Georgia, the Court struck down the death penalty as then administered. The decision was five to four, and it came as a short unsigned opinion followed by nine separate opinions, one from each justice, which is unusual and tells you how divided the Court was. No single rationale commanded a majority. The justices in the majority focused on the arbitrary way sentences were handed out: juries had nearly unlimited discretion, and the result looked random, with the penalty falling on a few seemingly at whim.

Why it mattered. Furman did not hold the death penalty unconstitutional in all circumstances. It held that the systems then in use were unconstitutional. The effect was to empty death rows across the country and to halt executions. States began rewriting their statutes at once, and the question became whether a rewritten system could meet the Court's objections.

1976: Gregg v. Georgia and its companions

July 2, 1976. Four years later, the Court answered. In Gregg v. Georgia, a plurality of the justices upheld Georgia's new death penalty statute. The Georgia law had a bifurcated trial, with separate phases for guilt and sentence, required the jury to find at least one statutory aggravating circumstance before imposing death, and provided automatic review by the state supreme court. The plurality held that capital punishment is not in itself cruel and unusual, and that a guided system could avoid the arbitrariness Furman condemned.

On the same day the Court decided companion cases. It approved the guided-discretion statutes of Florida and Texas in Proffitt v. Florida and Jurek v. Texas, and in Woodson v. North Carolina it struck down a mandatory death sentence, holding that the Constitution requires the sentencer to consider the individual defendant and the circumstances of the crime. Notice the middle path: not unguided discretion, not automatic death, but guided discretion with individualized consideration.

Why it mattered. Gregg is the foundation of the modern system. It established that the penalty can be constitutional, and it set the template that states followed. Executions resumed. The first execution after Gregg took place in Utah in January 1977.

1977: Coker v. Georgia

June 29, 1977. In Coker v. Georgia, the Court held that the death penalty is a grossly disproportionate and excessive punishment for the rape of an adult woman, and therefore forbidden by the Eighth Amendment. The decision looked at the practice of the states and at the principle of proportionality, which says punishment must fit the crime.

Why it mattered. Coker opened the line of cases saying that for crimes in which the victim was not killed, death is not available. It set up the question that returned decades later with Kennedy v. Louisiana: how far does the proportionality principle go?

2002 to 2008: the categorical bars and lethal injection

2002: Atkins v. Virginia

June 20, 2002. In Atkins v. Virginia, the Court held that executing a person with intellectual disability violates the Eighth Amendment. Six justices joined the majority opinion, which relied on the trend in state legislatures: a growing number of states had banned the practice, and the Court saw a national consensus. Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas, arguing that the Court was substituting its own moral judgment for the judgment of the people's representatives.

Why it mattered. Atkins is a categorical bar. It also left to the states the job of defining intellectual disability, which produced years of further litigation over who qualifies. And it set the pattern of the next decade: look at state legislation, find a consensus, then add the Court's own judgment.

2005: Roper v. Simmons

March 1, 2005. In Roper v. Simmons, the Court held, five to four, that the Eighth and Fourteenth Amendments forbid the execution of anyone who was under eighteen when the crime was committed. Justice Kennedy wrote for the majority, relying on the national trend against the juvenile death penalty, on scientific and social-science evidence that juveniles are less mature and more susceptible to pressure, and on international practice, a reference that drew criticism. Justice Scalia's dissent was sharp: he objected to citing foreign law and to the Court appointing itself the arbiter of the nation's moral progress.

Why it mattered. Roper is the second categorical bar, and it is the case in which the conservative objection to "evolving standards" was argued most forcefully. It also pointed the way for later decisions on juvenile sentencing outside the capital context.

2008: Baze v. Rees and Kennedy v. Louisiana

April 16, 2008. In Baze v. Rees, the Court upheld Kentucky's lethal injection protocol. The controlling opinion, by Chief Justice Roberts, held that to prove an Eighth Amendment violation a prisoner must show that the method presents a substantial or objectively intolerable risk of serious harm, and that he must identify a feasible, readily implemented alternative that would significantly reduce that risk. The vote was seven to two on the judgment, with several concurring opinions.

Why it mattered. Baze set the standard for method-of-execution claims for the next decade and gave states a safe harbor: if you follow a protocol substantially like Kentucky's, you are generally on solid ground. It also began the litigation over lethal injection drugs that would intensify as supplies of certain drugs dried up.

June 25, 2008. In Kennedy v. Louisiana, the Court held, five to four, that the death penalty cannot be imposed for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. Justice Kennedy again wrote for the majority, and the opinion rested on the same two pillars, the pattern of state laws and the Court's own judgment about proportionality. Justice Alito dissented, joined by the Chief Justice and Justices Scalia and Thomas, arguing that the majority had miscounted the national consensus, since several states had recently enacted such laws.

Why it mattered. Kennedy extended the line from Coker. Outside of murder and a few narrow categories, death is not available. It is also an example of how the Court's reading of "consensus" can be contested, and the dissent said the majority had cut off a developing democratic debate.

2015: Glossip v. Gross

June 29, 2015. In Glossip v. Gross, the Court held, five to four, that Oklahoma's use of the sedative midazolam in its lethal injection protocol did not violate the Eighth Amendment. Justice Alito wrote the opinion. He applied Baze, holding that the prisoners had failed to identify a known and available alternative method that would significantly reduce the risk, and that they had not shown the drug was very likely to cause serious pain. The decision turned on the burden of proof.

Why it mattered. Glossip confirmed that a prisoner challenging a method must offer an alternative, which made it harder to win such challenges. It came amid drug shortages, as manufacturers declined to supply drugs for executions, and states were turning to new protocols.

2019: Bucklew v. Precythe

April 1, 2019. In Bucklew v. Precythe, the Court held, again five to four, that a prisoner with a rare medical condition who challenged Missouri's lethal injection protocol as applied to him had to meet the Baze and Glossip test and identify a feasible alternative. Justice Gorsuch wrote the opinion. He said the Eighth Amendment forbids methods that superadd terror, pain or disgrace, but that the Constitution does not guarantee a prisoner a painless death. The Court also warned against last-minute litigation, saying courts may stop eleventh-hour claims that are dilatory tactics.

Why it mattered. Bucklew is, in effect, the endpoint of this line. The law of method challenges is settled in favor of the states, as long as they follow a recognized protocol and the prisoner cannot show a better alternative. It also signaled impatience with delay, which touches the cost-and-delay complaint on both sides of the debate.

2020: federal executions resume

July 14, 2020. The federal government carried out its first execution since 2003, resuming executions after a gap of about seventeen years. Several more federal executions followed in the following months.

Why it mattered. The federal death penalty had been on the books throughout, but it had gone unused for years. Its return showed that the legal framework built since Gregg was usable, and that the question of whether to carry out the penalty is as much a matter of executive choice as of constitutional law.

What the timeline tells us

Step back and look at the whole.

1. The big question was settled in 1976. Since Gregg, the penalty has been constitutionally permissible when administered with guided discretion. No Court majority since has reversed that.
2. The categories have been narrowed. The Court has barred the penalty for crimes that do not involve the death of the victim (Coker, Kennedy), for intellectually disabled defendants (Atkins) and for juvenile offenders (Roper). Those are categorical bars, grounded in proportionality and in the Court's reading of national consensus.
3. The methods have been left to the states. Baze, Glossip and Bucklew give states broad room to choose how to carry out executions, so long as they are not designed to torture.
4. The Court's method has shifted. The first set of cases was about process and consistency. The 2000s cases leaned on evolving standards. The later cases tilted toward text, history and the burden on the challenger.

That last point deserves a sentence of commentary. A conservative can fairly think that Atkins and Roper and Kennedy went further than the text justifies, and that the democratic process should have been left to run its course. A conservative can also fairly think that the Court's decisions have helped keep the penalty to the cases where it commands the most agreement. These are exactly the kinds of questions that divide the right, and the debate is laid out in Capital Punishment Divides the Right, and Both Camps Deserve a Real Hearing.

What is still open

Three questions are still live, and a timeline that ended without them would be misleading.

• Who counts as intellectually disabled. Atkins left the definition to the states, and the Court has had to police how they define it.
• What counts as a feasible alternative. The burden under Baze, Glossip and Bucklew is on the prisoner, but what qualifies as an available alternative method remains contested as drug supplies and state laws change.
• Whether further categorical bars will come. Litigants periodically ask the Court to extend the reasoning of Roper and Atkins to other groups, such as those with severe mental illness or those who were young adults at the time of the crime. Whether the Court as now constituted will entertain those claims is uncertain.

You can follow all of this in the Court's own opinions. They are public, and they are readable. If you want more on how the Court works, the courts page is a good place to start. For how the justices were chosen and how their philosophy shapes these cases, see Graham v. Connor and the Officer's View in a Split Second for another example of the Court shaping a field case by case, and Gonzales v. Raich and the Marijuana Case That Split Conservative Justices for a case where the conservative justices divided.

The case in brief

1. Furman v. Georgia (1972) struck down the death penalty as then administered for arbitrariness, and Gregg v. Georgia (1976) approved guided, bifurcated systems.
2. Coker (1977) and Kennedy (2008) bar death for crimes that did not take a life, Atkins (2002) bars it for intellectual disability, and Roper (2005) bars it for juveniles.
3. Baze (2008), Glossip (2015) and Bucklew (2019) leave method of execution largely to the states and require a challenger to identify a feasible alternative.
4. Federal executions resumed in July 2020 after a gap since 2003, showing that the framework since Gregg remains usable.
5. The big question is settled, the categories have narrowed, and the fights that remain are about definitions, methods and whether the Court should add new bars.

What you can do: pick one case from this timeline, read the opinion's first page on the Supreme Court's website, and compare it with how the news described it.