In a 5-4 decision in 1972, Furman v. Georgia , (2) the Supreme Court invalidated federal and state capital punishmentlaws which permitted wide discretion in the application of the death penalty. With one Justicecharacterizing the death penalty laws as "capricious," (3) the majority ruled that they constituted cruel and unusualpunishment in violation of the Eighth Amendment and the due process guarantees of the FourteenthAmendment based upon the inherent arbitrariness of their application particularly in the case ofracial minorities and the poor. These statutes were held to be unconstitutional. The discretion mustbe limited and directed in order to minimize the potential for arbitrary and capricious actions. Aggravating factors, established either as elements of the capital offense or as statutoryfactors to be found by the sentencing judge or jury, must be sufficiently clear and restricting. (11) 
In Lockett v. Ohio , (12) the Supreme Court required many states to revise their deathpenalty statutes by ruling that the sentencing authority in capital cases must consider every possiblemitigating factor to the crime rather than limiting the mitigating factors that could be considered toa specific list. (16) However, the case was significant because the Court decided that the chronological age of a minoris a relevant mitigating factor that must be considered at sentencing. (34) On his initialappeal, Simmons could not argue that his youth prohibited his execution because the U.S.Supreme Court held in 1989 in Stanford v. Kentucky that there was no national consensusagainst the execution of young adults who were 16 or 17-years-of-age at the time of theircrimes and, as a result, executing juveniles was not considered "cruel and unusual"punishment under the Eighth Amendment. (54) 
The Court included another reason for its elimination of the death penalty for juvenileoffenders: "Our determination that the death penalty is disproportionate punishment foroffenders under 18 finds confirmation in the stark reality that the United States is the onlycountry in the world that continues to give official sanction to the juvenile deathpenalty." (71) 
The Court also decided against executing the mentally retarded based on the theorythat they are disadvantaged at trial because of their mental impairments. (137)
In the most recent Supreme Court decision on the issue of "ineffective assistance ofcounsel", the Court in Rompilla v. Beard , (138) followed a series of rulings, including Wiggins v.Smith (139) which faulted lawyers for failing to investigate defendants' records for mitigating evidencewhich "was the result of inattention, not reasoned strategic judgment," and may have madethe difference between a life or death sentence. (146) 
In 2002, Thomas Miller-El asked the Supreme Court to enforce the rule of Batson prohibiting racial discrimination in the exercise of peremptory challenges in jury selection. (156) On appeal,Johnson raised the Batson claims and his conviction was set aside. The Supreme Court, divided (5-4), did not touch Thompson's death sentence butdecided that the Sixth Circuit's decision remanding the case for an ineffective assistance ofcounsel hearing was an abuse of discretion. The Court noted that with the policiesembodied in the Antiterrorism and Effective Death Penalty Act of 1996 in cases arising fromfederal habeas corpus review of a state conviction, the court's discretion under Rule 41 mustbe exercised "in a way that is consistent with the 'State's interest in the finality of convictionsthat have survived direct review within the state court system'" (201) 

	Retroactive Applications

The "...threshold question in every habeas case...." is whether the petitioner's claim isdefeated by the nonretroactivity of the rule he/she seeks to apply to his/her petition.
Executions declined through the 1950s and 1960s and ceased after 1967, pending definitiveSupreme Court decisions. This interval ended only after States altered their laws in response to the1972 Supreme Court decision in Furman v. Georgia , a 5-4 decision deciding that the death penalty,as imposed under existing law, constituted cruel and unusual punishment in violation of the Eighthand Fourteenth Amendments of the U.S. Constitution. In Furman, the Court ruled that the deathpenalty was arbitrarily and capriciously applied under existing law based on the unlimited discretionaccorded to sentencing authorities in capital trials. In response, States began to revise their statutesto modify the discretion given to sentencing authorities. These statutes went untested until the Courtdecided Gregg v. Georgia in 1976 in which it found in a 7-2 decision, that the death penalty did notper se violate the Eighth Amendment. The Gregg decision allowed States to establish the deathpenalty under guidelines that excluded the arbitrariness of sentencing in capital cases. As a result,statutory safeguards were developed to make sentencing more just and fair. Some of the changesincluded (1) in death penalty cases, the determination of guilt or innocence must be decidedseparately from hearings in which sentences of life imprisonment or death are decided; (2) the courtmust consider aggravating and mitigating circumstances in relationship to the crime and thedefendant; and (3) the death sentence must be subject to review by the highest State court of appealsto make sure that the penalty is in proportion to the seriousness or gravity of the offense and isimposed even-handedly under State law. Like the statutory safeguards, the capital cases decided bythe Court in the 2004-5 term also reflect its sentiment that if there is going to be a death penalty, theprocess must be fair.
The Supreme Court abolished the practice of executing mentally retarded persons in Atkinsv. Virginia and juveniles who commit a capital crime while under the age of 18 in Roper v. Simmons . The Court ruled that these executions were prohibited on Eighth Amendment "cruel and unusualpunishment" grounds. The Court expanded its doctrine on the "ineffective assistance of counsel"in setting aside the death sentence for the petitioner in Rompilla v. Beard because his lawyers failedto search files on his past convictions for mitigating evidence in spite of their conscientious effortswhich led them to believe that it would be a waste of time. However, the Court determined in Bellv. Thompson that the scheduling of an execution was reasonable and the actions of the Court ofAppeals were an abuse of discretion, although the case was remanded for an ineffective assistanceof counsel hearing by the Court of Appeals while acting upon an honest belief that its previous rulinghad been decided erroneously. Also, the Court's decision in Miller-El v. Dretke reflected anaffirmation of its condemnation of racial discrimination in the use of peremptory challenges.