PRIOR TO FORMAN V. GEORGIA (1972), THE CONSTITUTIONALITY OF THE DEATH PENALTY UNDER THE EIGHTH AMENDMENT AHD NEVER RECEIVED EXPLICIT CONSIDERATION BY THE SUPREME COURT. IN FACT, THE EIGHTH AMENDMENT ITSELF HAD BEEN INTERPRETED AND DISCUSSED AT LENGTH ON ONLY TEN OCCASIONS IN THE COURT'S HISTORY. EARLY SUPREME COURT DECISIONS IN WHICH THE COURT RULED ON THE MODE OF INFLICTING ASSUMEDLY VALID PUNISHMENTS SUCH AS CAPITAL PUNISHMENT ARE FIRST REVIEWED. THE AUTHOR THEN REVIEWS THE 1910 SUPREME COURT DECISION IN WEEMS V. UNITED STATES, WHICH SET STANDARDS FOR APPLYING THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE BASED NOT ONLY ON THE MODE OF PUNISHMENT, BUT THE SEVERITY OF PUNISHMENT AS WELL. APPLICATIONS OF THE WEEMS TESTS TO THE DEATH PENALTY ARE OUTLINED. THE AUTHOR CONCLUDES, BASED ON THE WEEMS DECISION, THAT THE DEATH PENALTY, UNDER ANY CIRCUMSTANCES, IS INVALID UNDER THE BAN AGAINST CRUEL AND UNUSUAL PUNISHMENTS. FINALLY, THE AUTHOR DISCUSSES THE OPINIONS EXPRESSED IN FORMAN V. GEORGIA, AND EXAMINES THEIR BEARING ON RECENT PROPOSALS TO MAKE THE DEATH PENALTY MANDATORY IN CERTAIN SITUATIONS. (AUTHOR ABSTRACT MODIFIED)