Thurgood Marshall’s steadfast opposition to the death penalty stands among the most defining elements of his Supreme Court career. From his powerful concurrence in Furman v. Georgia (1972)—which temporarily halted executions nationwide—to his resolute dissents following Gregg v. Georgia (1976)—which reinstated capital punishment under revised state statutes—Marshall maintained that the death penalty, in all its forms, violated the Eighth Amendment’s prohibition on cruel and unusual punishment. While he never persuaded a majority of his colleagues to abolish the practice entirely, his arguments anticipated and influenced subsequent developments in capital punishment jurisprudence. Over the ensuing decades, the Court has carved out significant limitations on the death penalty’s application, partially reflecting Marshall’s insistence on robust constitutional scrutiny and evolving standards of decency. This chapter section surveys the most notable progeny cases and legal debates that trace their lineage to Marshall’s unyielding critique, revealing the enduring impact of his moral and constitutional stance on America’s most severe punishment.
Before turning to the progeny that followed Marshall’s era, it is useful to situate his arguments in context. In Furman, a fractured Supreme Court halted the death penalty by holding that then-existing statutes allowed for arbitrary and capricious imposition of death sentences. Marshall (and Justice William J. Brennan, Jr.) took the position even further: they found the death penalty per se unconstitutional, arguing that it violated human dignity and reflected outdated, historically contingent notions of retribution. They also raised concerns about racial bias and unequal administration of the death penalty, foreshadowing sociological studies that would soon underscore disproportionate sentencing along racial and economic lines.
Once the Court decided Gregg in 1976, effectively reinstating capital punishment under “guided discretion” statutes, Marshall dissented in every subsequent capital case. His unwavering opposition rested on two core propositions:
Evolving Standards of Decency: The Eighth Amendment, read in light of modern values, cannot reconcile a punishment that is irrevocable, unequally applied, and rooted in retributive violence.
Racial and Class Disparities: Centuries of discrimination, combined with the practical realities of criminal justice, ensured that minorities and the poor would face the brunt of capital punishment. Rather than remedy systemic inequities, death penalty statutes exacerbated them.
These foundational critiques—about moral repugnance, racial bias, and the dynamic nature of constitutional protections—would reemerge in later cases, sometimes in narrower forms and at times informing the arguments of other justices who took up the mantle of scrutinizing capital punishment.
Coker v. Georgia (1977) and Early Limitations
Soon after Gregg, the Court confronted the question of whether the death penalty could be imposed for crimes other than murder. In Coker v. Georgia, the defendant had been sentenced to death for raping an adult woman—an offense Georgia still considered capital-worthy. In a 7–2 decision, the Court ruled that imposing the death penalty for rape of an adult woman was disproportionate under the Eighth Amendment. While Marshall, of course, concurred with vacating the death sentence, he reiterated his broader stance that the death penalty could never be consonant with constitutional values. The majority, however, focused more narrowly on the disproportionality of capital punishment for a crime not resulting in death.
Coker was a harbinger of how courts would continue to refine the limits of capital punishment. Although it did not endorse Marshall’s full abolitionist view, it reflected the principle that not all serious crimes necessarily merited the ultimate penalty. This line of reasoning—assessing the “narrow proportionality” of death sentences—would shape future rulings, effectively shrinking the universe of offenses eligible for capital punishment.
Enmund v. Florida (1982) and Tison v. Arizona (1987)
A major question soon arose concerning “felony murder”—whether individuals minimally involved in a fatal crime could be sentenced to death. In Enmund v. Florida, the Supreme Court ruled that a death sentence for a getaway driver who neither killed nor intended to kill was disproportionate. Although Justice Marshall was part of the majority, he wrote separately to emphasize that, in his view, every death sentence was unconstitutional. Still, Enmund underscored the principle that capital punishment must reflect individual culpability, not simply the fact that a homicide occurred during a felony.
Yet only five years later, in Tison v. Arizona, the Court partially retreated from Enmund by allowing the death penalty if a defendant’s participation in the underlying felony was considered “major” and displayed “reckless indifference to human life.” Marshall dissented, warning that this shift risked erasing important distinctions in culpability. While Tison limited the worst-case scenarios for felony murder liability, it nonetheless left significant room for broad prosecutorial discretion—an outcome Marshall believed would perpetuate arbitrariness and disparate racial impacts. Even so, the line drawn by Enmund and Tison came to define the evolving Eighth Amendment analysis around culpability, a conversation Marshall’s own arguments helped to shape.
McCleskey v. Kemp (1987) and the Question of Racial Bias
One of the most consequential capital punishment cases to directly confront race was McCleskey v. Kemp. Here, the defendant presented a comprehensive statistical study (the “Baldus study”) showing that in Georgia, defendants who killed white victims were far more likely to receive the death penalty than those who killed Black victims. Despite the study’s rigor, the Court, in a 5–4 ruling, held that a defendant must prove intentional discrimination in his particular case, not just systemic bias. This decision effectively insulated capital punishment from broad-based statistical challenges.
Justice Marshall’s dissent in McCleskey drew on arguments he had been making since Furman. He contended that the Court’s refusal to engage with systemic bias rendered the Eighth Amendment guarantee hollow for Black defendants. He also warned that ignoring statistical evidence risked perpetuating a racial caste system in capital sentencing. While the majority was unwilling to accept the study’s implications for constitutional standards, McCleskey remains a touchstone for critiques of how the Court handles allegations of systemic racism in the criminal justice system—critiques that trace directly back to Marshall’s early warnings about race and the death penalty.
In his Furman concurrence, Marshall outlined what later scholars dubbed the “Marshall Hypothesis”: the claim that most Americans would oppose the death penalty if they were sufficiently informed about its discriminatory application, high error rates, and questionable deterrent effect. Social scientists and legal theorists have since tested this hypothesis through studies on public opinion. While results are mixed, it remains a frequently invoked concept in debates about capital punishment, with some research showing that support for the death penalty declines when participants are exposed to information about wrongful convictions, racial inequities, and the costliness of death row procedures.
The significance of the “Marshall Hypothesis” transcends empirical debate: it also highlights his belief in the moral conscience of the public. Marshall argued that capital punishment endures not because it is inherently just, but because many people remain shielded from its harsh realities. Over the decades, as DNA exonerations and other revelations of wrongful convictions have captured headlines, the moral underpinnings of Marshall’s position have found renewed resonance. Although the death penalty remains on the books in many states, public support has ebbed and flowed, influenced in part by exactly the kind of information Marshall championed for transparency’s sake.
Constitutional Shifts in the 21st Century
Atkins v. Virginia (2002): Banning Execution of the Intellectually Disabled
A major turning point in modern capital jurisprudence came with Atkins v. Virginia, where the Court held that executing individuals with intellectual disabilities violates the Eighth Amendment. In a 6–3 decision, Justice John Paul Stevens’ majority opinion relied on “evolving standards of decency,” referencing the principle that legal norms cannot remain static when confronted with changing societal values and new understandings of human cognition. This notion of an evolving Constitution was central to Marshall’s broader jurisprudence—not just with respect to the death penalty but across issues from affirmative action to reproductive rights.
Although Marshall had left the Court more than a decade before Atkins, the ruling evinced a partial acceptance of the logic he had advanced: that the Eighth Amendment must be interpreted in light of contemporary human rights norms. If the intellectually disabled are exempt on grounds of moral decency, the door opened to reexamine other categories of defendants as well, effectively narrowing capital punishment’s reach.
Roper v. Simmons (2005): Extending the Principle to Juveniles
Another watershed came in Roper v. Simmons, which forbade the execution of individuals who were under 18 at the time of their offenses. Again, the Court anchored its decision in the concept of evolving standards of decency. It reasoned that juvenile offenders, due to their lack of maturity and susceptibility to external pressures, lacked the culpability to warrant the ultimate punishment. The Court also pointed to emerging national and international consensus against juvenile capital sentencing.
Though Marshall had argued in the 1970s and 1980s for a blanket prohibition on the death penalty, Roper illustrated how the Court was belatedly adopting bits and pieces of his moral framework. By excluding entire classes of people—intellectually disabled defendants in Atkins, juveniles in Roper—the Court was inching closer to the notion that capital punishment’s cruelty could not be constitutionally tamed simply by refining procedural safeguards. Instead, the logic behind Atkins and Roper mirrored Marshall’s core emphasis that the state cannot exact the extreme penalty when fundamental moral or developmental considerations render the punishment grossly disproportionate.
Hall v. Florida (2014) and Moore v. Texas (2017): Refining Atkins
Post-Atkins, states grappled with defining “intellectual disability,” sometimes imposing rigid IQ cutoffs. In Hall v. Florida (2014) and Moore v. Texas (2017), the Supreme Court intervened to invalidate overly strict standards that risked executing defendants who were intellectually disabled by clinical definitions but failed to meet narrow state tests. While not radical expansions of the Eighth Amendment, these decisions showcased the Court’s willingness to refine and enforce the principles set out in Atkins.
In both cases, the majority cast the Eighth Amendment as a dynamic standard, requiring sensitivity to the scientific and medical consensus around intellectual disability. This logic dovetails neatly with Marshall’s “evolving standards of decency” approach, reinforcing the idea that the Constitution demands vigilance in protecting vulnerable defendants. Justice Marshall’s enduring influence is evident in how the Court continues to treat capital punishment as a fluid area of law rather than a settled domain—constantly reassessing which defendants can justly face a penalty as irrevocable as death.
Contemporary Debates and Calls for Abolition
The Glossip v. Gross (2015) Concurrence/Dissent: Echoes of Marshall
Although Marshall’s seat was filled by Clarence Thomas—who takes a distinctly different position on most constitutional questions—subsequent justices have carried forward, in varying degrees, the critique of capital punishment. In Glossip v. Gross, the Court addressed the constitutionality of a particular lethal injection protocol. While the majority upheld the procedure, Justices Stephen Breyer and Ruth Bader Ginsburg penned a notable dissent, questioning the death penalty’s constitutionality on grounds of wrongful convictions, arbitrary application, and excessive delays.
Many scholars have noted how Breyer’s and Ginsburg’s critique echoed the tone and substance of Marshall’s dissents. Their lengthy dissent effectively called for a wholesale reconsideration of whether capital punishment can be administered fairly—a call reminiscent of Marshall’s unwavering stance. Although the Court did not overturn the death penalty in Glossip, the dissent signaled that at least some members of the modern Court are willing to revisit fundamental questions about whether the death penalty violates the Eighth Amendment.
Shifting State Landscape
Another critical dimension of the death penalty’s “progeny” relates to legislative changes at the state level. In the past two decades, multiple states—among them New York, New Jersey, Illinois, Connecticut, Maryland, and more—have repealed or effectively halted executions. Public opinion polls sometimes show declining support for capital punishment compared to mid-20th-century peaks, aligning with the idea that evolving social values might gradually push the practice toward obsolescence.
In a sense, these legislative repeals represent the real-world manifestation of Marshall’s moral arguments: as more citizens and lawmakers learn about wrongful convictions, racial disparities, and the ballooning costs associated with capital punishment, the appetite for state-sanctioned executions diminishes. While many states still maintain the death penalty, the national picture is increasingly fragmented, suggesting a partial vindication of Marshall’s conviction that increased public awareness would undermine support for execution.
International Trends and Influence
When Marshall penned his earliest dissents, the United States was already an outlier among Western democracies in retaining capital punishment. Subsequent decades have only reinforced that disparity, as international human rights norms have trended decisively against the death penalty. Decisions like Roper v. Simmons, which explicitly referenced international consensus, hint at how Marshall’s perspective resonates in a global context. Even if the Supreme Court does not always explicitly cite foreign law, the broader alignment of many nations around abolition or severe limitation of capital punishment buttresses Marshall’s historical argument that capital punishment is out of step with modern conceptions of decency.
Evolving Standards of Decency as a Doctrinal Touchstone
Marshall’s repeated invocations of “evolving standards of decency” have become part of the Supreme Court’s standard lexicon for interpreting the Eighth Amendment. Although the phrase was not his invention—it dates back to cases like Trop v. Dulles (1958)—Marshall arguably applied it more comprehensively to the death penalty than any of his contemporaries. Over time, the Court has increasingly used that concept to strike down particular applications of capital punishment (e.g., for juveniles, the intellectually disabled, and non-homicide offenses). In that sense, the case-by-case approach to limiting executions often channels Marshall’s insight that the Eighth Amendment should not remain static but must reflect contemporary moral and social insights.
Racial Justice and the Death Penalty
The ongoing conversation about racial bias in the death penalty remains firmly tethered to the critiques that Marshall—and later, in McCleskey, Brennan—brought into the judicial mainstream. Although the Supreme Court has not embraced systemic challenges to capital sentencing, many lower courts have begun to consider how to address evidence of disproportionate impact. Some jurisdictions have passed Racial Justice Acts (e.g., North Carolina’s short-lived version) allowing defendants to argue that statistical patterns of bias infected their case. Though these legislative experiments often face political headwinds, they reflect an underlying principle that Marshall vigorously championed: that a punishment so final must be scrutinized for the structural injustices it may perpetuate.
The Debate Over Per Se Unconstitutionality
While the Court continues to treat capital punishment as theoretically constitutional, an undercurrent of legal scholarship calls for an outright ban. Many of these scholarly arguments borrow from Marshall’s logic—specifically, the notion that no set of procedural reforms can adequately address the risk of error, arbitrariness, or discrimination when dealing with a penalty as irrevocable as death. Justice Sonia Sotomayor has hinted at reexamining the practice in certain opinions, and Justices Breyer and Ginsburg openly questioned the death penalty’s constitutionality in Glossip. Though the Court remains divided, the revival of such arguments testifies to the enduring legacy of Marshall’s once-solitary stance.
Thurgood Marshall’s sweeping condemnation of the death penalty was, during his lifetime, considered a minority position on the Supreme Court. Yet, in the decades since his retirement, his vision has subtly and persistently shaped capital punishment jurisprudence. Progeny cases have progressively trimmed the scope of executions: they cannot be imposed on juveniles, the intellectually disabled, or those who played only minor roles in homicide. Courts scrutinize state procedures more thoroughly, grappling with everything from racial bias to lethal injection protocols. Public opinion, legislative action, and international norms have all shifted in directions that Marshall forecast—if not fully, then at least partially vindicating his belief that thorough public education and moral reflection would erode support for the death penalty.
Of course, Marshall’s ultimate dream—a nation free from capital punishment—remains unrealized. The Supreme Court has not embraced a blanket prohibition, and multiple states carry on with executions. Yet the seeds Marshall planted through his Furman concurrence and subsequent dissents have sprouted in the narrower rulings of Atkins, Roper, Hall, and others, suggesting that the Court increasingly shares portions of his moral and constitutional critique. Whether one views these incremental developments as transitional steps toward eventual abolition or as modest reforms in a system that persists in doling out death, Marshall’s arguments continue to frame the debate.
Crucially, the “Marshall Hypothesis” remains an intellectual pivot for those seeking to educate the public about capital punishment’s moral, racial, and procedural failings. Wrongful convictions, exonerations via DNA testing, and heightened awareness of prosecutorial misconduct have cast new light on issues Marshall highlighted decades ago. While the Supreme Court’s majorities have not invalidated the death penalty outright, the “progeny” of Marshall’s views—embodied in evolving Eighth Amendment jurisprudence, legislative abolitions in certain states, and persistent calls for further reform—testify to his enduring influence on America’s most contested form of punishment.
Ultimately, the legacy of Marshall’s capital punishment stance is twofold. On one hand, he provided a comprehensive moral blueprint for those who believe the practice inherently contravenes the Constitution’s core values of dignity and equality. On the other, he introduced into the judicial record a robust critique of race- and class-based disparities that remains central to present-day reforms. In these ways, his imprint on capital punishment jurisprudence extends well beyond his years on the Court, continuing to shape the legal landscape and fueling ongoing debates about the constitutional limits of the state’s power to take a life.