CHANGING JUDICIAL OPINIONS REGARDING CAPITAL PUNISHMENT ARE EXAMINED BY TRACING THE HISTORY OF THE EIGHTH AMENDMENT'S PROSCRIPTION AGAINST CRUEL AND UNUSUAL PUNISHMENT, EXAMINING ITS APPLICATIONS TO CASES NOT INVOLVING THE DEATH PENALTY, AND FINALLY, ITS APPLICATION TO CASES OF CAPITAL PUNISHMENT. IN 1878 THE U.S. SUPREME COURT HELD THAT THE DEATH PENALTY PER SE WAS NOT CRUEL AND UNUSUAL PUNISHMENT (WILKERSON V. UTAH). IN KEMMLER (1890) DEATH BY THE ELECTRIC CHAIR WAS UPHELD AND IN LOUISIANA EX REL. FRANCIS V. RESWEBER (1946) THE COURT UPHELD A STATE'S RIGHT TO ATTEMPT A SECOND EXECUTION WHEN THE FIRST ATTEMPT FAILED. THE RESTRICTIONS ON CAPITAL PUNISHMENT SET FORTH IN FURMAN V. GEORGIA (1972) ARE EXAMINED. A SERIES OF CASES IN THE 1970'S EXAMINED VARIOUS ASPECTS OF THE DEATH PENALTY AND THE MEANS USED TO IMPOSE THIS SENTENCE. THESE ARE SUMMARIZED AND THE PHILOSOPHIES UNDERLYING THE DECISIONS ARE EXAMINED. THE RESULT HAS BEEN A LIMITED ACCEPTANCE OF CAPITAL PUNISHMENT. THE DEATH PENALTY MAY NOT BE IMPOSED FOR RAPE, ROBBERY, OR KIDNAPING. IT MAY BE IMPOSED ONLY WHEN THE VICTIM WAS KILLED. CAPITAL PUNISHMENT MAY NOT BE MANDATORY; IT MUST BE IMPOSED ONLY AFTER DUE CONSIDERATION OF THE CIRCUMSTANCES SURROUNDING THE CRIME. AT THE TIME OF WRITING STATUTES WHICH ALLOW THE DEATH PENALTY FOR MASS TERRORISM, SUCH AS AIRPLANE HIJACKING, IN WHICH NO VICTIM IS KILLED HAVE NOT BEEN TESTED BY THE U.S. SUPREME COURT. BASED ON CRITERIA ESTABLISHED IN COKER (1977) THIS COMMENT ASSUMES THAT THE COURT WOULD REJECT CAPITAL PUNISHMENT IN SUCH CASES. THE 164 FOOTNOTES CONTAIN CASE CITATIONS AND ADDITIONAL DISCUSSION. (GLR)