Constitution Daily

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The Supreme Court’s evolving record on capital punishment

July 28, 2014 by Scott Bomboy


The debate over the death penalty as cruel and unusual punishment dates back to the Founding Fathers, and recent court decisions have confirmed the practice as constitutional, but with limitations.


kemmler _Electric_chair
The Kemmler electric chair

Recent executions in three states using an untested combination of drugs have reopened a bigger discussion about the legality or morality of executions in general, and the use of these drug combinations as violating the Constitution’s Eighth Amendment.


The Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


In consulting the authoritative Constitution of the United States of America: Analysis and Interpretation (or Constitution Annotated), the Library of Congress historians and experts list in detail how the Founders viewed cruel penalties and the later battles in the Supreme Court over the issue.


In 1789, during the debate over the Bill of Rights in the First Congress, one argument was over the extent of the death penalty. Samuel Livermore of New Hampshire proposed that, “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 would 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,” Livermore said.


Congress adopted a more moderate view when it proposed the Eighth Amendment for ratification in the Bill of Rights. It was also concerned about the use of harsh punishments in an arbitrary and disproportionate way.


The Supreme Court initially considered these factors as they would have applied in the Founders’ time. In 1878, the Court ruled in Wilkerson v. Utah that death by firing squad was permissible, but it agreed that old English practices of execution where prisoners were “emboweled alive, beheaded, and quartered,” publicly dissected and burned alive were unconstitutional.


But in 1910, the Court broadened its criteria in a decision called Weems v. United States, which wasn’t a capital punishment case, but dealt with cruel and unusual punishment.


The Justices referenced an earlier death sentence case, In re Kemmler from 1890, which held that the first use of the electric chair was constitutional, but under the 14th Amendment.


“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution,” the Court said in Kemmler.


In the Weems case, a clerk was sentenced in a Philippines court to 15 years of harsh punishment for falsifying documents. The Court had jurisdiction in the case, and the majority said the punishment was unconstitutional. The Eighth Amendment was of “expansive and expansive and vital character” the Justices said, a ruling interpreted by later courts as confirming modern considerations about the appropriateness of punishments must be considered.


“The proper approach to an interpretation of this provision has been one of the major points of difference among the Justices in the capital punishment cases,” the Congressional Research Service said in its analysis of the Court’s treatment of Eighth Amendment cases.


Later, the Court ruled that it was permissible to execute a person with the electric chair, for a second time, after a first attempted failed.


However, in 1972 the Court changed direction in the case of Furman v. Georgia, when in a very complicated ruling a split Court decided the death penalty application in this one specific case was unconstitutional. Furman, an armed burglar, had tripped while fleeing a scene, causing his gun to discharge and kill a victim.


The Justices issued a one-page overall opinion, which wasn’t attributed to one Justice, with five concurring opinions and four dissenting opinions. The ambiguity in the Furman case led 35 states to pass their own death-penalty statutes.


In 1976, in a series of decisions called the Gregg cases, the Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic sentencing to death, and said death sentences can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use by states of aggravating and mitigating circumstances in determining capital sentencing.


In later years, the Court has excluded certain classes of people from capital punishment, including the mentally handicapped and juveniles. It also eliminated rape and felony murder as capital crimes.


In 2008, the Court did rule on lethal injections, which it upheld as a legal form of capital punishment, in a case called Baze v. Rees. Again, the Justices issued several opinions, none gathering a majority of five.


The controlling opinion said that “an isolated mishap” in an execution would not violate the Eighth Amendment, because that “does not suggest cruelty” and does not indicate that the procedure used presented “a substantial risk of serious harm.”


But the Court also inferred that a state might violate the Eighth Amendment ban on cruel and unusual punishment if it continually used a flawed method when alternative procedures were available that were less painful.


“To constitute cruel and unusual punishment, an execution method must present a ‘substantial’ or ‘objectively intolerable’ risk of serious harm. A State’s refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain,” said Chief Justice John Roberts.


Currently, 32 states have laws that allow for executions, and three more states have convicts eligible for capital punishment under prior laws. Almost all states have lethal injection as their primary execution method.


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