Some people find it strange that so many of the guarantees included in the original Bill of Rights deal with the protection of people accused of committing crimes. The Fourth Amendment requires warrants for search or arrest; the Fifth requires indictment by a grand jury, prohibits double jeopardy to defendants in legal proceedings, protects against having to testify against oneself, and assures due process of law. The Sixth Amendment guarantees a jury trial, the right to know the charges and be confronted by witnesses, and to have assistance of counsel. And the Eighth Amendment ensures that even if a person is found guilty after a fair trial, then the punishment inflicted must be proportional to the crime. One should not be fined a million dollars for a traffic violation, have a hand cut off for forging a check, or be put to death for illegal gambling. Here again, the rights afforded even to those convicted of a crime must be respected, in order that a democratic society have faith in the criminal justice system, and that the system itself not be perverted into a means of political repression. This is the ideal, and if reality sometimes falls short of the ideal, the Bill of Rights protections nonetheless serve as a benchmark of what a democratic society should strive for.

And he that smiteth any man mortally shall surely be put to death. . . . And if a man maim his neighbor; as he hath done, so shall it be done to him: breach for breach, eye for eye, tooth for tooth; as he hath maimed a man, so shall it be rendered unto him.

The catalogue of modes of punishment and the crimes they applied to is, to the modern sensibility, appalling. In ancient Athens, the Draconian Code of the seventh century B.C. made death the penalty for every crime committed. Two centuries later the Roman Law of the Twelve Tablets imposed death as the punishment for crimes such as cutting another farmer's crops, perjury, or making disturbances at night in a city. The Romans came up with a variety of ways of imposing the death penalty, including crucifixion, drowning at sea, burial alive, beating to death, and impalement. For the murder of a parent, the condemned was put into a sack with a dog, a rooster, a viper, and an ape and then submerged in water.

During the Middle Ages torture often accompanied execution, and English barons had a drowning pit as well as gallows, both of which were used for petty as well as major crimes. For treason, women were burned at the stake, while men were hanged, cut down before they were dead, disemboweled, and then dismembered. Those who would not confess to the charges suffered pressing, in which heavy weights were placed on the person's chest. On the first day, the executioner gave the victim a small amount of bread, on the second a small quantity of bad water, and so on until the person either confessed or died. In 1531, the Crown approved boiling to death as a suitable means of execution. Nearly all executions took place in public, both as a popular spectacle and a way to teach the lesson that breaking the law would lead to dire consequences.

He is to be drawn to the gallows as a traitor to the king who made him a knight, to be hanged as the murderer of the gentleman taken in the Castle of Hawarden, to have his limbs burnt because he had profaned by assassination the solemnity of Christ's Passion, and to have his quarters dispersed through the country because he had in different places compassed [conceived of] the death of his lord the king.

By the time of the Revolution, most colonies had laws that provided the death penalty for arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and counterfeiting, with death by hanging the usual mode of execution. Some colonies had more severe criminal codes, but in all of them the record seems to indicate that even though a particular crime could be punished by death, judges and juries imposed this penalty only in the cases of the most heinous crimes.

Although whipping, dunking in water, and the shaming post — convicts were chained to a post in a public place where they could be taunted — remained staples in several colonies, the more horrific forms of torture and punishment quickly disappeared in America. This reflected reformist movements in the mother country that had begun to arouse popular opinion against institutionalized cruelty. A major debate over what constituted cruel and unusual punishment took place at the time of the Revolution and extended through the drafting of the Constitution and the Bill of Rights, a debate that in many ways foreshadowed the modern controversy over whether capital punishment is cruel and unusual punishment.

The Eighth Amendment to the Constitution repeats almost word for word the same ban embodied in Article 10 of the 1689 English Bill of Rights, which was later incorporated by George Mason in the Virginia Bill of Rights (1776), and by the Confederation Congress in the Northwest Ordinance of 1787. During the debate over the Constitution, objections were raised in several states that the new document did not go far enough in protecting individual liberties. In Massachusetts, one delegate to the ratifying convention noted that the Constitution failed to impose limits on the methods of punishment, and theoretically the use of the rack and the gibbet could be legally employed. In Virginia, Patrick Henry feared that torture could be used. While both men were in fact arguing for the inclusion of a broader bill of rights, both also saw the need to protect against the cruelties so prevalent in English history.

Whether the English Bill of Rights' prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or both, there is no doubt whatever that in borrowing the language and including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments.

There were some significant voices raised at the time in favor of abolishing capital punishment. Some argued that the success of the new republic should depend upon the virtue of its citizens and not on their fear of a harsh penal code, which many saw as the hallmark of tyranny. Benjamin Rush, one of the signers of the Declaration of Independence, declared that "capital punishments are the natural offspring of monarchical governments." Even a conservative like Alexander Hamilton believed that "the idea of cruelty inspires disgust," and that the death penalty undermined republican values and behavior.

During the First Congress under the U.S. Constitution in 1789, there was little debate over the proposed ban on cruel and unusual punishment. Samuel Livermore of New Hampshire made the only extended comment:

The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. . . . No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.

Unlike some of the other sections of the Bill of Rights, there has been relatively little case law on the subject of "cruel and unusual punishment" handed down by the Supreme Court. Torture has never been part of authorized punishment in the United States, and the few comments made on the subject dealt with local authorities resorting to physical abuse in attempting to get confessions. There have been occasional cases about what constitutes excessive bail or fines, but there is no "bright line" test on this subject. Rather, the high court has indicated that this is a matter of judgment best left to the trial courts, and if a defendant felt aggrieved, he or she could appeal for relief.

The debate, both in the nation and in the courts, has been over whether the death penalty itself should be banned as a violation of the Eighth Amendment. Consistent with the wording of the amendment, the first cases the Supreme Court heard dealt with the manner of execution, rather than with the actual punishment. In 1878, the Court upheld the use of a firing squad as a means of executing prisoners, and a little over a decade later, approved the use of the electric chair, which had been introduced as a humane means of execution. A century later, the Court has not heard any challenges to the current form of "humane" execution, lethal injection. In essence, the Court has said that as long as the death penalty survived, it will leave it to the states to determine the means used, provided torture or other patently cruel or unusual methods are not used. The Court itself very reluctantly got involved in the 1970s in the controversy over abolition of the death penalty, and it appears that it may soon be involved again as the current discussion once again takes a prominent role in public policy debate.

In the first two decades of the 20th century, the United States reduced the number of federal crimes that could be punished by death, and several states abolished capital punishment altogether. There the abolition movement stalled until the early 1960s, when the controversy over the death penalty once again captured the interest of the nation. In part this new abolition movement drew strength from victories that had been achieved in other countries.

Shortly after World War II, reformers promoted the abolition of the death penalty as a goal of civilized nations in the drafting of the Universal Declaration of Human Rights in 1948. A few European nations, like Norway, had already abolished capital punishment, and others agreed that there should be certain limitations on its use. Over the years, a number of nations began signing multilateral agreements that precluded application of the penalty to juveniles, pregnant women, and the elderly, and also reduced the number of crimes for which it could be imposed.

Eventually, three international treaties were drafted that aimed at complete abolition of the death penalty, one in 1983 and the other two, six years later. More than 50 nations have signed these protocols. A half-century after the Nuremberg Tribunal sentenced a number of Nazi figures to death, international law now precludes the death penalty in prosecutions for war crimes and crimes against humanity. In many countries that have recently overthrown the yoke of tyranny, one of the first laws passed by democratically elected parliaments has been the abolition of capital punishment, since under the previous autocratic governments execution had been an important means of subduing the population.

The United States has not signed these protocols, for a number of reasons. One is the simple fact that the Supreme Court does not hold capital punishment per se to be a violation of the Eighth Amendment ban on cruel and unusual punishment. Imposition of the death penalty is thus left to Congress to determine for federally defined crimes, and to the 50 states, and the District of Columbia for crimes under their jurisdictions. Three-fourths of the states still impose the death penalty; the rest do not. This aspect of federalism is often difficult to understand in countries where the parliament prescribes the criminal code that governs the entire country. But in the federal system of the United States, each state is free to devise its own code, bound only by the strictures of the Constitution as well as by areas where Congress has successfully claimed federal jurisdiction.

Perhaps the most important reason for the continuation of capital punishment in the United States is that there is no consensus among the American people on the appropriateness of the death penalty. The debate ranges from one side that would abolish it completely to those who believe it is a good thing and ought to be utilized more often. A majority of the American people probably fall between these two poles, upset that the death penalty involves the state in killing, yet concerned that, without it, there might be no deterrent to heinous crimes. This view was well stated by the former attorney general of Florida, Robert L. Shevin, when he said "The human capacity for good and for compassion makes the death penalty tragic; the human capacity for evil and depraved behavior makes the death penalty necessary."

Those who oppose the death penalty do so for a variety of reasons. Some think it inhumane to put anyone to death. In this view, people who commit crimes should be incarcerated and prevented from harming others, but all life is sacred, even that of a convicted criminal. It is the perceived immorality of the death penalty, more than anything else, that leads some people to oppose it.

A second reason involves the finality of the death penalty, and the fear that innocent people will be executed. Over five centuries ago, John Fortescue, the Lord Chief Justice of England, declared that "one would much rather that 20 guilty persons should escape the punishment of death, than that one innocent person should be condemned, and suffer capitally." If a person is wrongfully convicted of a crime and sent to prison, and if the error is discovered, then the person can go free. While no one can ever make up for the time spent in jail, at least the person is still alive and can enjoy the rest of his life. When a person is executed there is no way to emend error.

A third reason is the supposed futility of the death penalty for any of the normal criteria for punishment, with one exception. The death penalty, opponents argue, does not serve as a deterrent, because people who commit capital crimes rarely, if ever, think of the consequences when committing the crime. The cold-blooded professional killer will believe that he can get away with the crime and does not worry about punishment. The aggrieved spouse who discovers her husband is cheating on her is mad and wants revenge; she has little idea in the heat of passion of the consequences that she might have to pay for her actions.

The only purpose execution serves, according to its opponents, is retribution, the revenge that society imposes on those who stray outside the bounds of accepted social behavior. They do not deny that there ought to punishment, but it should be civilized, and executing someone for what is basically revenge is, in their view, barbarous. They find religious backing in the biblical passage: "Vengeance is mine, saith the Lord."

A fourth reason is that capital punishment is clearly not imposed in an even-handed manner. Juries are reluctant to impose the death penalty on women, even when they convict them of capital murder. Civil rights proponents argue that in crimes involving African-American or other minority defendants, the death penalty is likely to be imposed at a far higher percentage rate for similar crimes than it will be against white defendants.

Proponents of the death penalty argue the contrary. Above all, they say, the punishment must be proportional to the crime, and if one knowingly and deliberately takes a life, then that is the minimum that society demands. It is unfair to allow a murderer to live out his days in prison when his victim lies dead.

Second, there are some crimes so heinous that only the death penalty will appease the conscience of the public. When a murderer tortures or rapes his victim, when the crime is committed in a particularly horrific manner, then that criminal has forfeited any claim of morality. Just as we would put a rabid animal away, and thus remove a threat to the community, so certain criminals must be "put away" permanently, death penalty supporters would say.

Third, they believe that capital punishment can serve as a deterrent. It will not, proponents admit, stop the professional killer or a person temporarily deranged by jealousy, but it will stop petty, if rational, criminals from enlarging on their crimes. They point to the fact that burglars both in the United States and Great Britain rarely carry guns. If they are caught, the penalty for simple breaking and entering is far less than for armed robbery, and without a gun criminals will not be tempted to use a weapon either against the householder or police. This, they believe, shows legal deterrence works.

A fourth argument involves retribution; those in favor of the death penalty see nothing wrong with that. The families of victims are entitled to know that the murderer did not get away with it, and that as he took an innocent life, so he will now lose his own. Moreover, unless the state provides the punishment that will satisfy the need for retribution, private parties will take the law into their own hands, and the United States would disintegrate into a vigilante society.

The hardest argument for advocates of capital punishment to answer is that of error. Even if they do not agree with Lord Fortescue that 20 guilty parties should go free rather than one innocent person be executed, they acknowledge that mistakes can happen. Their argument is that mistakes always happen, no matter how perfect a system one devises, and that to allow 20 guilty men to escape with their lives is itself a crime against society, for which the life of the occasional wrongfully convicted person is an unfortunate but necessary price to pay.

The variety of state criminal justice systems, the vagaries in sentencing criteria, and the disproportional imposition of the death sentence in cases involving minorities finally led the Supreme Court to act. A number of appeals reaching the Court in the 1960s showed the imperfections in the system. In many instances the conviction could be reversed on a technicality, without the Court having to reach the core issue of the constitutionality of the death penalty. Finally, the justices decided that they would have to deal with that issue.

The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.

Over the next few years, much to the chagrin of opponents of capital punishment, every one of the 37 states that had previously imposed the death sentence rewrote its legislation in an attempt to meet the constitutional standards implied in the Furman opinion. In 1976, the Court began to sort through these new statutes in an effort to articulate workable standards, and finally upheld the revised Georgia death penalty law in Gregg v. Georgia. The new law provided that in a jury trial, the jury would first determine guilt or innocence; if it found the defendant guilty, it would then vote separately on punishment. Both the jury and a judge in a bench trial had to take into account mitigating as well as aggravating circumstances, and the state supreme court would automatically review all death sentences to protect against excessive or disproportionate punishment.

Our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty must also accord with "the dignity of man," which is the basic concept underlying the Eighth Amendment. . . . This means, at least, that the punishment must not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime.

The wide variety of capital punishment schemes, their arbitrary and often discriminatory application, and a lack of clear applicable constitutional standards had led to some support for the Court's original 1972 decision. The majority, however, did not consider capital punishment per se unconstitutional, but only the ways in which states imposed this most extreme punishment. The revised statutes avoided many of those problems, and the automatic review now required by all states that impose the death penalty assures some measure of uniformity in application and the avoidance of prejudiced cases.

Yet many of the Court's later decisions, in which it tried to avoid a lockstep approach to imposing the death sentence, reintroduced the elements of uncertainty to which the Court had originally objected. Chief Justice Warren Burger was unquestionably correct for asserting in several death penalty cases during the 1970s that the death penalty is different and therefore must be treated so as to individualize the punishment as much as possible. This requires that judge or jury take full account of a variety of mitigating and/or aggravating conditions. Despite efforts by the states to rationalize this process, in the end, the decision whether or not to impose the death penalty involves a largely subjective determination. If the jury thinks a particular murder is heinous, it will often be able to justify the death penalty; if the jury is sympathetic toward a particular defendant, it will find mitigating circumstances to avoid imposing death.

As we have seen in discussions of other rights, constitutional meanings do change over time as conditions evolve. What may seem appropriate in one era may look vastly different to another generation. Although the U.S. judicial system, in interpreting the Constitution, is bound by the words of that document, and, to a degree, by the intent of the Framers, courts have attempted to make the application of their words relevant to contemporary society.

It is clear from the historical evidence that at the end of the 18th century, despite the reservations of a few about the efficacy of the death penalty, a majority of the population both in the United States and Europe accepted capital punishment as a legitimate sentence for the commission of specific crimes. In large measure, many people in the United States, most likely a majority, still do. Less than a decade ago, the Court noted that no great shift had occurred in the public's attitude toward the death penalty. It is possible that a shift has begun, but difficult to tell how far it will go.

One precipitant may be that despite closer scrutiny of death sentences by state appellate courts following the guidelines laid down by the Supreme Court, studies show that the sentence is still applied disproportionately to minority defendants.

A second factor has been the exposure of far larger numbers of mistaken convictions than had been assumed. In many instances, poor defendants received inadequate legal assistance from court-appointed attorneys who were poorly versed in criminal law. Recently, projects at several law schools led to teams of law students doing the type of investigation that a properly funded law team should have done before the trial, and coming up with conclusive evidence that the person convicted of the crime had not committed it.

If these studies by themselves did not cast doubt upon the reliability of the system, new technological advances have. In recent years, DNA testing has led to the overturning of literally dozens of capital convictions throughout the United States. Physical evidence taken from a rape victim can be used to identify her assailant with near certainty, and several men on death row for rape-murder were pardoned when DNA testing, not available at the time of their trials, showed they had not been the attackers. In non-rape cases, blood sample tests used to be able to show only that the blood on the defendant's coat was or was not of the same type as that of the victim; new tests can say with precision whether in fact the blood came from a particular person. Once again, the use of these new tests has led to overturning convictions.

This type of evidence not only reinforces the arguments of abolitionists, but it also affects supporters of the death penalty, both liberal and conservative. At the core of the criminal justice system in a democracy is the idea that the system will work fairly, that mistakes should be few and far between, and that everyone should receive equal justice before the law. It has become clear to many people in the United States in the last few years that the death penalty system is flawed and must be fixed.

We have nothing to guide us in defining what is cruel and unusual apart from our own consciences. A punishment which is considered fair today may be considered cruel tomorrow. And so we are not dealing with a set of absolutes. Our decision must necessarily spring from the mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the human personality.

The U.S. Supreme Court has agreed to hear several cases that while not attacking capital punishment per se, do bring into question its application to certain groups, such as minors (who may be subject to it if tried as adults), and the mentally retarded. In June 2002, the Court handed down two decisions that indicated that the justices had heard the debate over capital punishment, and that at least some of them shared the growing concern over its fairness in application. In one case, a majority of the Court agreed that public opinion had coalesced around the idea that executing the mentally retarded did, in fact, constitute cruel and unusual punishment. It has been a staple of Anglo-American common law that punishment should not be inflicted on those who did not understand the nature of either their crime or their punishment. Insanity has long been recognized as a defense against severe punishment, and people found criminally insane are institutionalized, not executed.

In the other case, the Court severely limited the power of judges to impose death sentences on their own volition, and placed greater authority for deciding upon capital punishment with juries. While one can argue that this gives greater sway to popular passions, it also reinforces the power and the responsibility of the jury, which, according to Justice Antonin Scalia, is at the heart of the American criminal justice system.

Whether this current re-evaluation will lead to abolition of the death penalty is difficult to say. But at the very least it ought to ensure that this most severe of all forms of punishment is applied in a more objective and fair manner. In the United States at the beginning of the 21st century, capital punishment is not seen as a violation of the Eighth Amendment ban on cruel and unusual punishment. Its flawed application, on the other hand, is.

For further reading:

Larry Charles Berkson, The Concept of Cruel and Unusual Punishment (Lexington, Mass.: D.C. Heath & Company, 1975).

Charles L. Black, Jr., Capital Punishment: The Inevitability of Caprice and Mistake (2nd ed., New York: W.W. Norton, 1981).

Walter Burns, For Capital Punishment: Crime and the Morality of the Death Penalty (New York: Basic Books, 1979).

John Laurence, A History of Capital Punishment (New York: The Citadel Press, 1960).

Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (New York: Random House, 1973).

Louis P. Pojman and Jeffrey Reiman, The Death Penalty — For and Against (Lanham, MD: Rowman & Littlefield, 1998).

Chapter 11: Equal Protection of the Law »