The Death Penalty: Cruel and Unusual?

When the Constitution was first ratified, it did not include a Bill of Rights. Still, the new Constitution gave the federal government more power than it had under the Articles of Confederation. One new power was that the federal government could create federal crimes and punishments. Opponents of the Constitution worried the federal government would abuse this power and use cruel punishment, which they feared would quickly become a tool of tyranny. Some worried that the government would use torture to get a confession, while others worried the government would make menial crimes federal crimes as a way to oppress the people. 

As a result, the Framers included the Eighth Amendment to restrict the federal government from exercising too much authority that could potentially lead to an oppressive government through the use of intimidation and torture. It reads:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The ‘cruel and unusual punishment’ clause of the Eighth Amendment has been interpreted to fall in line with the evolving standards of decency. This is to reaffirm the idea that the amendment is a safeguard for our criminal justice and legal system to ensure the government does not overextend their power in implementing harsh punishments not in proportion to a crime. 

Evolving standards of decency is a unique concept because it helps the courts determine which punishment is ‘cruel and unusual’. 

In 1952, the Supreme Court took up the case of a soldier who deserted his position during the second World War. As punishment his citizenship was revoked. The soldier challenged the ruling under the guise that the 8th Amendment bans cruel and unusual punishment, and losing his citizenship was cruel and unusual. The Supreme Court ruled in favor of the soldier and as a result, said that “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This means that as society changes, so does our perception of what is just and decent. Thus, punishments must always fall in line with these changing standards. 

More often than not, the 8th Amendment and evolving standards of decency is usually thought of in conjunction with the Death Penalty. As of 2020, 28 states have a death penalty. 

A landmark case that hits on the interpretation of the 8th Amendment’s limitations as evolving with the standards of decency in relation to the death penalty is Coker v. Georgia (1977). Coker was sentenced to life in prison in 1971 for rape, kidnapping, aggravated assault and first degree murder. A year and a half later he escaped from prison while armed and invaded the home of Alan and Elnita Carver. He raped Elnita and stole the car.

Coker was arrested and charged with rape, armed robbery and other crimes-but not murder. 

However, due to two aggravating factors, Coker was sentenced to death. He appealed all the way up to the Supreme Court arguing that the death sentence was cruel and unusual punishment because in this instance, he did not kill anyone. 

As a result, SCOTUS used proportional jurisprudence to analyze the case. This means the courts examine objective evidence to determine if the death penalty is an appropriate punishment given the circumstances of the particular case. The evidence analyzed is laws, prior behavior of sentencing juries and the furthering of twin goals of retribution and deterrence, which in this case, said that while rape is a heinous crime, it does not involve taking a human life. 

The SCOTUS ruled in favor of Coker, and going forward the precedent was set that the death penalty is reserved to crimes resulting in the deliberate taking of human life. 

Other landmark cases include Atkins v. Virginia (2002). Atkins was charged with murder and sentenced to death. However, Atkins appealed his sentence to the Supreme Court arguing the execution of a mentally ill person constitutes cruel and unusual punishment and thus violates the 8th Amendment. As a result, the precedent of Atkins is that the execution of mentally disabled persons is cruel and unusual punishment and thus unconstitutional. However, the court left it up to each state legislature to determine what constitutes ‘mentally disabled’. 

Nonetheless, the aforementioned cases among others highlights how the original intention of the Amendment has been protected: as society evolves, so does our perception of what is permissible. As a whole, society frowns upon the death penalty. Therefore, having limitations on the use of the death penalty prohibits cruel and unusual punishment in many cases. 

The Founders would be proud to know their intentions are being carried out.