death penalty: an overview Congress or any state legislature may
prescribe the death penalty, also known as capital punishment,
for murder and other capital crimes. The Supreme Court has ruled
that the death penalty is not a per se violation of the Eighth
Amendment's ban on cruel and unusual punishment, but the Eighth
Amendment does shape certain procedural aspects regarding when a
jury may use the death penalty and how it must be carried out.
Because of the Fourteenth Amendment's Due Process Clause, the
Eighth Amendment applies against the states, as well as the
federal government. Eighth Amendment analysis requires that
courts consider the evolving standards of decency to determine
if a particular punishment constitutes a cruel or unusual
punishment. When considering evolving standards of decency,
courts both look for objective factors to show a change in
community standards and also make independent evaluations about
whether the statute in question is reasonable. The U.S. Supreme
Court has determined that