Niehoff: When is the death penalty cruel and unusual? | Opinion
The Eighth Amendment to the Constitution protects us from “cruel and unusual punishment” by the government. This seemingly simple language raises a host of complicated questions. “Cruel” by what standard? “Unusual” in what sense? Does this provision have a fixed meaning? Or does its meaning change over time?
History offers a few clues.
In 1689, England adopted a Declaration of Rights that prohibited “cruell and unusuall punishments.” Some of the founders argued that we needed a similar provision in our own Bill of Rights.
They were concerned about the power the Constitution gave to the federal government. Congress could create new criminal laws and enforce them through abusive punishments.
Patrick Henry argued that Congress might approve the tools of the Spanish Inquisition, allowing torture “to extort a confession of the crime.” Having secured an unreliable confession, the federal government could then punish the accused “with still more relentless severity.”
He concluded, with his typical rhetorical flare: “We are then lost and undone.”
This history makes clear that the Eighth Amendment prohibits the use of punishments viewed as barbaric at the time of ratification, like the rack or thumbscrews. But how much further does it go? Supreme Court justices and legal scholars have disagreed.
One view holds that the founders intended the protections of the Eighth Amendment to change organically. Chief Justice Earl Warren took this position in the 1958 case of Trop v. Dulles, declaring that the words of the Eighth Amendment are “not precise” and “their scope is not static.” He added: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Another view, held by originalists like Justices Clarence Thomas and Antonin Scalia, maintains that the amendment has a historically fixed meaning and generally does not bar punishments that were accepted in 1791. This theory leaves things in a worrisome place. As legal scholar John Stinneford observes, punishments like “flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century.”
Over the years, the court has struggled with the question of whether the Eighth Amendment completely bars the use of capital punishment. Arguments that it does have focused on the disproportionate numbers of minorities and poor people who receive death sentences, on distressing rates of error, on studies questioning its effectiveness as a deterrent, and on changing social attitudes.
In Trop v. Dulles, Chief Justice Warren found these arguments forceful but nevertheless concluded that the Eighth Amendment doesn’t prohibit all uses of capital punishment. “The death penalty has been employed throughout our history,” he wrote, and so is not in itself cruel or unusual.
In its 1972 ruling in Furman v. Georgia, however, the court took a less sympathetic view of capital punishment. The decision held that imposing the death penalty on the three defendants before the court would violate the Eighth Amendment.
The court’s ruling, which consisted of a few sentences followed by a collection of individual opinions, proved difficult to decipher. On the one hand, the decision addressed only the particular defendants before the court. On the other hand, it reflected a broad sensibility that many (if not all) uses of the death penalty violated the Constitution. The decision resulted in a moratorium on capital punishment until things got sorted out.
Additional clarity came in 1976, when the court issued a ruling that addressed another set of cases that were reviewed together on appeal. There, the court upheld the capital punishment regimes of some states while striking down others.
In essence, the court held that a legislative scheme that allows for capital punishment must have two features. First, it must include objective criteria that direct and limit the sentencer’s discretion in imposing the penalty. Second, it must allow the sentencer to consider the individual defendant’s character and record.
The Court thought these measures helped protect against the discriminatory and arbitrary imposition of the death penalty. Critics disagree.
An otherwise permissible capital punishment regime may still violate the Constitution if applied to certain defendants. For example, the court has declared that the Eighth Amendment bars the execution of intellectually disabled criminals and of juvenile offenders.
Although individual justices (like William Brennan and Thurgood Marshall) have argued that the Eighth Amendment forbids all uses of the death penalty, that viewpoint has never commanded a majority of the Court.
Nor will it do so anytime soon.
Some justices who had serious concerns about the death penalty — like Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer — are no longer on the court. They’ve been replaced by justices — like Brett Kavanagh and Amy Coney Barrett — whose lower court rulings suggest strong support for capital punishment.
No one should hold their breath waiting for the most conservative Supreme Court in modern memory to breathe fresh life into the Eighth Amendment.
In a sense, that’s surprising. Although we often associate opposition to the death penalty with the liberal end of the political spectrum, many libertarian conservatives oppose it as well.
Stay tuned for cases in which a majority of the current Supreme Court says, if not quite in so many words: “Sorry. We’re not that kind of conservative.”
Len Niehoff is a professor at the University of Michigan Law School and serves as legal counsel to The Detroit News. This is the ninth in his series of pieces on the Bill of Rights.
For more in this series:
► Bill of Rights a vital document that doesn't get its due
► How much do you really know about free speech and the First Amendment?
► Lives and liberty hang on Second Amendment debate
► How the Third Amendment's privacy rights put government in its place
► The Fourth Amendment protects against invasion of privacy. What does that mean?
► Does the Fifth Amendment mean you have the right to remain silent?
► How facing an accuser in court became a Supreme Court battleground
► Here's what the Seventh Amendment's right to a trial by jury can teach us
