In recent years, many of the debates surrounding the “cruel and unusual punishment” clause center on its applicability to the death penalty. Nobody disputes that, at the time that the 8th Amendment was adopted, the vast majority of Americans did not believe that the death penalty constituted “cruel and unusual punishment.” There were, however, some outliers. The Quakers were opposed to capital punishment, and they had a significant influence on Pennsylvanian politics and law. Benjamin Rush, a prominent political leader in Pennsylvania, wrote a condemnation of capital punishment in 1792 which drew its reasons from natural rights, public policy, religion, and republican principles. Most men at them time, however, simply assumed that the death penalty was the appropriate punishment for the worst crimes. The strongest proof for its general acceptance comes from the Constitution itself. The 5th Amendment twice refers to what is required in capital trial proceedings.
More recent court decisions, however, have adopted a different standard when assessing the 8th Amendment. In 1958, the Court held that: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles). Even though the case had nothing to do with capital punishment, opponents of the death penalty quickly embraced its “evolving standards of decency” language. Justice Thurgood Marshall, quoting from the Trop decision less than 15 years later, stressed that “a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today” (Furman v. Georgia, 1972). According to Marshall, even if “the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional,” the “evolving standards” concept means that those past decisions are “not now binding on us.” In other words, even though capital punishment was never found to be unconstitutional under 8th Amendment grounds in the past, it might be in the future.
Of course, other justices have disagreed with Marshall; and, indeed, the Court has never struck down the death penalty. But it has chipped away at it. From the late 1960s through much of the 1970s there was a de facto moratorium on death sentences arising out of a number of court cases. These cases did not invalidate the death penalty per se, but there were a number of objections to the ways that capital cases were tried and the manner in which the penalty was applied. In the 1972 Furman case, Justice Stewart pronounced: “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” And in 1975, the Court struck down a law that required a mandatory death sentence for first degree murder (Woodson v. North Carolina).
The Founders were generally united in their condemnation of “cruel and unusual punishments,” but they left somewhat vague the precise meaning of that phrase or the rule by which it should be determined. In general, courts of that period tended to shun punishments that were deemed unacceptable at the time of the adoption of the Constitution or which had fallen into disuse over a lengthy period.
For example, in the 1824 Pennsylvania case, James v. Commonwealth, Justice Duncan launched into a lengthy discourse on the practice of ducking. This sentence—always delivered against women and usually upon the conviction of being a “scold” (we’re not kidding) – involved tying the criminal to a stool and ducking her under water. Duncan, after establishing that the punishment had not been used in England for most of the last 100 years and had never been embraced by Pennsylvania, argued that punishments “may be repealed either expressly or by implication founded on disuse.” The court stressed that it was not even taking “into consideration the humane provisions” in the 8th Amendment when making this decision. And other court cases and commentaries at the time stressed that the “cruel and unusual punishment” provision was not an absolute bar to the legislature if it chose to formulate more stringent punishments for some crimes (such as dueling) when the needs of society demanded it. The provision therefore left some discretion in the hands of legislatures.
Other capital convictions were struck down because of an alleged violation of the standard of proportionality. In Coker v. Georgia (1976), the Court found that it was unconstitutional to authorize a sentence of death for a conviction of rape or any other crime where a life was not taken. The 8th Amendment finding was based on the reasoning that the punishment was “grossly disproportionate” to the crime.
More recently, the Court has restricted even further the severity of punishments that can be meted out to other categories of criminals. In a couple of cases in the 1980s it was determined that only major accomplices in a felony murder conviction can be sentenced to death. In 2001, the Court in Atkins v. Virginia found that it was unconstitutional to execute the mentally ill. In Roper v. Simmons (2005), the Court struck down capital punishment for juvenile offenders. Voicing the Court’s decision, Justice Kennedy said that “it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” Then, seven years later, in Miller v. Alabama, the Court prohibited laws that prescribed mandatory life imprisonment for juveniles, no matter the severity of the crime. Justice Kagan, delivering the opinion of the Court, wrote that “the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.”
In a speech that Justice Brennan delivered in 1985, he gave it as his opinion that the proper interpretation of the 8th Amendment would forbid all cases of capital punishment, although he acknowledged that the majority of Supreme Court justices, as well as the majority of Americans, disagreed with him. He was hoping with this opinion, he said, “to embody a community striving for human dignity for all, although perhaps not yet arrived.”
Many people have accused the Court of overstepping its authority by deciding cases on such a flexible and ill-defined basis as “evolving standards of decency.” Justice Scalia, in his Roper dissent, argued that the Court had based its decision on select scientific reports (ignoring others), select state practices (ignoring others), and laws of other nations when making its decision. In short, they looked to anything and everything except the traditional meaning of the “cruel and unusual punishment” clause of the 8th Amendment. He accused the Court of “undertak[ing] the majestic task of determining (and thereby prescribing) our Nation’s current standards of decency.”
Chief Justice Roberts, writing the dissent in the Miller case, proffered a similar argument: “Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy,” questions which are appropriate for a legislature. “Our role, however, is to apply the law, not to answer such questions.” He added that, since mandatory life sentences for teenagers had been accepted by a majority of states, they therefore “could not plausibly be described” as unusual.