The Constitutionality of the Death Penalty

Capital Punishment itself is not mentioned in the constitution, however it does come into question under the 8th Amendment; no "cruel or unusual punishment". But whether or not the death penalty falls under cruel or unusual punishment is the question. Cruel obviously means painful or brutal, so castration or any form of torture, etc. Unusual has come has generally been understood to mean a punishment that is not usually associated with a particular crime but which is nonetheless applied arbitrarily in some cases. It also implies that the punishment should be proportionate to the crime committed. For example if nine out of ten jaywalkers were fined 10 dollars but the tenth was fined 1000, that would fall under unusual. The death penalty has been but under scrutiny for violating both the cruel and the unusual aspects of this amendment. It has had to adapted over the years to stray away from the "cruel" aspect, for example phasing out hanging and the electric chair, and due to the the arbitrary application of the death penalty and the disproportionate number of minorities that were executed, the "usualness" has come into question. The Supreme Court has stated that the term "cruel and unusual punishment" changes over time. For example in the late 1700s, in the early days of the constitution, whipping was an expectable punishment and obviously that would not be okay in 2011. The other piece of the constitution that applies to the death penalty is the 5th amendment which guarantees that no one shall be deprived of "life, liberty, or property, without due process of law, which can be interpreted that one can be deprived of their life with due process of law.