I. Introduction

The death penalty is as American as apple pie, and the U.S. Constitution, but why? The Eighth Amendment expressly prohibits “cruel and unusual punishments inflicted,”1. While some view capital punishment as an anachronistic practice that has no place in modern America, there are still others who endorse its continued use. They commonly cite it as an effective means to deter crime, serve as retribution for victims, and prevent criminals from reoffending. These claims have been proven to be mistaken2. They are often rooted in an individual’s background, experiences, and emotions. But what does the law have to say? In Gregg v. Georgia3, the Supreme Court alludes to the idea that opposition to capital punishment is an “enlightened”4 view. More specifically, the Court states that the interpretation of the Cruel and Unusual Punishment Clause is not tied to some nebulous concept of 17th- or 18th-century punishment but that it evolves through the enlightenment of public opinion5. This article will briefly unpack this interpretation of the Eighth Amendment and then explore the jurisprudence in Gregg v. Georgia (1976), where the Court applies it directly to capital punishment. Can constitutional “change” actually be affected through the evolution of societal values?

II. Enlightenment and the “Evolving Standards of Decency”

It is not a new idea that the interpretation of the Cruel and Unusual Punishment Clause is based, in part, on public opinion and evolving societal views. In Weems v. United States, the Court attributes the origins of this interpretation to Michigan Supreme Court Chief Justice Thomas Cooley’s 1871 treatise “Constitutional Limitations”7,8. There9, the Court cites the 1884 case, Ex Parte Wilson, in which it uses society’s evolving standards of punishment as its basis for interpreting the Cruel and Unusual Punishment Clause. It is important to note that in Ex Parte Wilson, the Court explicitly states the mode and the level of punishment— whipping and thirty stripes, respectively— before it concludes, “But at the present day either stocks or whipping might be thought an infamous punishment.”10 It appears that, when specifying the matter being modified by public opinion, the Court was referring to whipping, the mode of punishment rather than the level of punishment. Here, the Court also never refers to the process of selecting the punishment; rather, it rules specifically on the essence of the punishment. We will revisit this idea shortly in the context of Justice Brennan’s dissent in Gregg.

In Gregg v. Georgia, this idea, that shifting societal views are in part responsible for shaping interpretation of the Cruel and Unusual Punishment Clause, took center stage in the debate over the constitutionality of capital punishment. In the majority opinion authored by Justices Stewart, Powell, and Stevens, the Court began by exploring the origins of the phrase “cruel and unusual punishment,” attributing its initial use to the English Bill of Rights of 1689. They determined that its original intent was to prevent punishments from exceeding the limits of a statute or a court’s jurisdiction11. The Court also established that the intent of the framers of the U.S. Constitution was to expressly prohibit “torture” and “barbarous methods”12. While the Court initially explores the history of the clause, it quickly shifted its focus to what appears to be the primary method of interpreting the clause— evaluating it against societal views of what is considered just and humane during a given time.

The Court quotes a statement by Chief Justice Warren from Trop v. Dulles in its opinion: “’[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society [italicized for emphasis].’”13 Again, it is clear that, regardless of its ruling on the constitutionality of capital punishment, the Court views the death penalty as unenlightened and a sign of an immature society. Here, the Court directly applies a societal view standard to capital punishment. Following Furman v. Georgia, in which the Court ruled that statutes giving “untrammeled discretion”14 to a jury to sentence a defendant to death were unconstitutional, the State of Georgia developed new statutes creating a “bifurcated trial” system15. First, guilt of the defendant must be established. The jury would then be presented with evidence of aggravating and mitigating circumstances. Only then, if at least one of ten specified aggravating circumstances were found beyond a reasonable doubt, would the jury be able to recommend the death penalty16. It appears that the Court found this bifurcated system to sufficiently negate any concerns of “cruel” or “unusual punishment”17. In the four years between the Furman ruling and Gregg, the state legislatures of 35 states modified their capital punishment statutes. This indicated to the Court that there must have been sufficient public support for the use of capital punishment since the democratic process had elected for its continued use18. In all cases, the Court strongly cautions that judicial restraint must be adhered to. The state legislatures serve as the voice of the people, and through their enactment of legislation, the courts can accurately evaluate public perception19.

In the dissent by Justice Brennan, he expounds on his colleagues’ views. He understands their ruling in Gregg to be a general objection to applying a societal view standard to the “essence of the death penalty”; rather, it should be applied “primarily20 (italicized for emphasis) upon the procedures employed by the State to single out persons to suffer the penalty of death”21. He strongly objects to this interpretation, preferring to apply the standard more generally to the mode of punishment. This reads well into the language of Ex Parte Wilson, where the Court appears to object to the mode of punishment, which there is whipping, rather than the level of punishment or how the punishment was determined. It appears that the decision to apply a societal view standard primarily to the method of selecting an individual for execution was an intentional act of judicial restraint by the Court. That being said, even interpreting the majority opinion through Justice Brennan’s view, it can still be understood that the Court would be obligated to rule that capital punishment violates the Cruel and Unusual Punishment Clause in the event that public opinion changes drastically to oppose it22.

III. In a Democracy, Public Opinion Matters!

America is the great democratic experiment. Democracy is rooted in public opinion. The core purpose of any constitution is to serve as a grounding document. It must be difficult to amend, yet times change, and ideas along with them. The drafters of the U.S. Constitution understood this; hence, Article V, but the interpretation of the Constitution also requires some level of inherent flexibility. The Cruel and Unusual Punishment Clause of the Eighth Amendment is one such area where the people have a direct say. While today there is indeed still support for capital punishment, that support appears to be waning. According to a 2025 poll by Gallup, 52 percent of Americans favored the death penalty, down 17 percent from its peak in 198823. The rate of support among college students, America’s future leaders, is even lower. A 2008 study found that student support for the death penalty was 21 percent lower than the general population24.

These trends open a new route in the constitutional journey of capital punishment. If public support for the death penalty wanes to such an extent, will the Supreme Court be forced to rule that the practice is unconstitutional? If so, at what point does capital punishment become so unpopular that it is sufficient for such a ruling? These questions remain unanswered, but it appears we may be nearing a resolution. Constitutional change, whether through the amendment process laid out in Article V or through judicial interpretation, is a slow and arduous process; nevertheless, it is a vital component of the enlightenment of our country, our world, and democracy itself.

  1. U.S. Const. amend. VIII. ↩
  2. See Eric G. Lambert et al., The Death Penalty Attitudes of Criminal Justice Students: Are they Different from Other Students?, 21 Criminal Justice Studies 193–212 (2008). ↩
  3. Quoting from Weems v. United States. There the Court is generally referring to all cruel and unusual punishment. ↩
  4. Gregg v. Georgia, 428 U.S. 153, 171, 96 S. Ct. 2909, 2924, 49 L. Ed. 2d 859, 873, 1976 U.S. LEXIS 82, *28 (U.S. July 2, 1976). ↩
  5. Id. ↩
  6. Id. at 173. ↩
  7. Weems v. United States, 217 U.S. 349, 378, 30 S. Ct. 544, 553, 54 L. Ed. 793, 803, 1910 U.S. LEXIS 1966, *52 (U.S. May 2, 1910). ↩
  8. The full name of is: “A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union”. ↩
  9. In Weems. ↩
  10. Ex parte Wilson, 114 U.S. 417, 428, 5 S. Ct. 935, 940, 29 L. Ed. 89, 93, 1885 U.S. LEXIS 1776, *20 (U.S. March 30, 1885). ↩
  11. See Gregg v. Georgia, 428 U.S. 153, 170, 96 S. Ct. 2909, 2924, 49 L. Ed. 2d 859, 873, 1976 U.S. LEXIS 82, *28 (U.S. July 2, 1976). ↩
  12. Id. ↩
  13. Id. at 173. ↩
  14. Furman v. Ga., 408 U.S. 238, 247, 92 S. Ct. 2726, 2730, 33 L. Ed. 2d 346, 354, 1972 U.S. LEXIS 169, *14 (U.S. June 29, 1972). ↩
  15. See Gregg v. Georgia, 428 U.S. 153, 158, 96 S. Ct. 2909, 2924, 49 L. Ed. 2d 859, 873, 1976 U.S. LEXIS 82, *28 (U.S. July 2, 1976). ↩
  16. Id. ↩
  17. U.S. Const. amend. VIII. ↩
  18. See Gregg v. Georgia, 428 U.S. 153, 179-183 96 S. Ct. 2909, 2924, 49 L. Ed. 2d 859, 873, 1976 U.S. LEXIS 82, *28 (U.S. July 2, 1976). ↩
  19. Id. at 174-177. ↩
  20. Id. While this is the primary application, it is not the only way it can be applied. It appears, to some extent, both in the majority opinion and in Justice Brennan’s dissent, that societal values must be applied to the mode of punishment when they strongly object to the use of a specific punishment. This may be when the state legislatures, or other representatives of the people, object to the use of a punishment, though this may not be a requirement in all cases and is purely speculation. ↩
  21. Id. at 227. ↩
  22. Supra note 2. ↩
  23. See Lydia Saad, Americans prefer tempered crime-fighting methods Gallup.com (2025), https://news.gallup.com/poll/697244/americans-prefer-tempered-crime-fighting-methods.aspx (last visited Oct 2, 2026). ↩
  24. Lambert et al., supra note at 2, at 200. ↩