Chapter 21: The Right to Protection against Cruel and Unusual Punishments

In February 2006, an inmate in California was minutes away from execution when two doctors assigned to monitor his death suddenly refused to participate. They protested the use of a three-drug cocktail designed to put the condemned man to sleep before he received the heart-stopping dose. The method of death was inhumane, the physicians claimed, and because it was not foolproof, they could be required to revive the prisoner in the event of a botched execution. It violated both their Hippocratic oath to do no harm and the Eighth Amendment to the U.S. Constitution, which banned cruel and unusual punishments. Their withdrawal raised the possibility of a statewide moratorium on further executions because other physicians were likely to take the same position.

Even though many people considered lethal injection a humane method of capital punishment, the doctors’ objections were not unusual. From the beginning of the republic, the death penalty has always been controversial. The United States uses it far more frequently than most Western nations—indeed, European states today uniformly outlaw death as a punishment—and each execution finds Americans divided over the practice. Advocates of the penalty point to brutal, senseless crimes and believe death is the only appropriate punishment for such wanton violence. Opponents are troubled by the possibility of executing an innocent man or woman. The death penalty is one of the most vexing moral and legal issues in modern American law.

The Eighth Amendment addresses the terms of punishment. It is the last in a series of four amendments dealing with rights of the accused. Its brief text addresses three separate items: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As was true with other guarantees in the Bill of Rights, the framers drew upon English history and their own experience in drafting this amendment. Various documents limited the king’s ability to impose heavy fines, but royal judges often flouted this restriction. They also denied bail, keeping people in jail without trial, and exacted bloody punishments, especially when they wanted to remind the public of the government’s power. After a series of harsh punishments was inflicted on participants in a failed uprising in 1685, the Parliament forced a new monarch to accept an English Bill of Rights (1689). One of the provisions contained the language later used in the Eighth Amendment.

The death penalty cannot be useful, because of the example of barbarity it gives men . . . It seems to be absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder, they order a public one.

The amendment promotes fairness in our system of criminal justice; the prohibition of excessive bails and fines, for example, especially protects poor defendants. But what the words mean in practice is not clear from the text of the amendment.What is an excessive bail or fine? What makes a punishment cruel and unusual? For each guarantee, judges have leeway to consider the circumstances of each case, guided by laws that have developed over two centuries. The law of bails and fines generally has not attracted much attention; the same is not true for cruel and unusual punishments.

Criminal justice throughout history has resorted to physical punishments that we consider inhumane today. Loss of limbs, bodily mutilations, and whippings were common penalties for noncapital crimes, or crimes not punishable by execution, and few people considered death to be a cruel punishment. It certainly was not unusual. European history provided countless examples of what we would consider barbaric punishments, including beheading, burning at the stake, crucifixion, breaking on the rack, dismemberment. The American revolutionaries rejected these brutalities and considered punishment by death to be, in Thomas Jefferson’s words, a “last melancholy resource.” They accepted the argument of continental reformers that severe codes did little to diminish crime. Experience proved that juries hesitated to send defendants to the gallows, and many condemned prisoners received pardons, so how did the death penalty restrain wrongdoers? The aim of punishment, reformers argued, should be to redeem men and restore them to society. Execution should be reserved only for the most heinous crimes and for incorrigible, or unredeemable, criminals.

In 1786, Pennsylvania restricted capital punishment to cases of treason, murder, rape, and arson, and within two decades most states followed suit. A new institution, the penitentiary, emerged to hold prisoners convicted of serious offenses. The word itself, from the root penitent (“feeling sorrowful”), expressed the hopes of reformers. The belief that even evil people could be redeemed also led to campaigns to abolish the death penalty. In the 1840s, both Michigan and Wisconsin abolished the punishment; in most other states, executions held behind prison walls replaced the spectacle of public hangings. The arguments for and against capital punishment are the ones still heard today. Opponents protest the system’s potential for prejudice and the possibility of killing an innocent person; supporters believe the death penalty acts as a deterrent to violent crime, and when it does not serve this purpose, it is a just and proportionate punishment for taking another life, especially for premeditated murder.

An increase in crime and violence, both real and perceived, slowed the movement to abolish the death penalty in the nineteenth century. Reformers instead worked to make its application more humane, which led, in part, to the inventions of the electric chair and gas chamber. Both methods were thought to produce speedier deaths than hanging, which could result in slow strangulation.

[T]he principles of republican governments . . . revive and establish the relations of fellow-citizens, friend, and brother. They appreciate human life, and increase public and private obligations to preserve it . . . An execution in a republic is like a human sacrifice in religion. It is an offering to monarchy, and to that malignant being, who has been styled a murderer from the beginning, and who delights equally in murder, whether it be perpetuated by the cold, but vindictive arm of the law, or by the angry hand of private revenge.

Because criminal justice was considered a matter for the states, not the federal government, any attempts to abolish the death penalty had to proceed state by state. The twentieth century, however, introduced a new way to challenge the penalty. Gradually, the Supreme Court accepted the view that the due process clause of the Fourteenth Amendment included provisions of the Bill of Rights and therefore restricted what states could do.

Section 18. The penal code shall be founded on the principles of reformation, and not of vindictive justice.

Now, the nation’s highest bench faced the question of how to interpret the phrase “cruel and unusual punishments.” What made this task difficult was the horror of two world wars, and especially the barbarous punishment imposed by the Nazis on people whose only crime was their race, religion, ethnicity, or mental or physical disability. As Americans became more sensitive to the definition of cruelty—and the misuse of the death penalty—the justices faced agonizing choices between moral and democratic claims. Legislative majorities in state after state had enacted death penalty statutes, but experience both at home and abroad had revealed how discriminatory its use could be. Was execution cruel by definition and therefore unconstitutional? If not, when and how does society ensure due process to condemned persons?

Over the past several decades, these questions became central to bitter and divisive public debate. The Supreme Court especially, as the body that considers final appeals from the condemned, has struggled to determine the constitutionality of capital punishment. How difficult this task has been can be seen in a case involving a prisoner who faced the electric chair a second time after his first execution failed. The botched execution raised serious questions about the use of the death penalty and began a new debate over the meaning of the Eighth Amendment that still continues today.

Willie Francis was seventeen years old in 1946 when he was sentenced to die in Louisiana’s electric chair. Two years earlier, the barely literate black youth had killed his boss, a druggist, and stolen his wallet containing four dollars. The discovery of the billfold on Francis ten months later provided the evidence that led to his confession. An all-white jury found him guilty of first-degree murder, which under state law carried a mandatory death sentence. The day before the scheduled execution, prison officers set up the traveling chair in a makeshift death chamber inside the local courthouse. (The chair was portable and was often used in the parish, or county, where the crime had been committed.) Trusted inmates prepared Francis for electrocution by shaving his head and legs to ensure a good connection to the powerful electric current. Witnesses watched as guards strapped the dazed youth to the massive wooden chair and attached electrodes to his body. Francis’s father was present, and he had brought a coffin with him.

When the captain in charge gave the signal, the boy’s body jumped from the massive jolt of electricity. He groaned, his lips protruding from under the hood covering his face, and he strained so violently against the restraints that the chair came off the floor. Twice the executioner threw the switch, and witnesses heard Francis yell, “Take it off . . . Let me breathe.” The captain called for more juice, but to no avail. Finally, the parish sheriff halted the macabre proceeding, and Francis was returned to the holding cell. He showed no ill effects other than a rapid heartbeat. The execution was rescheduled.

Two new attorneys took the case and appealed to the state board of pardons, which concluded that electricity had never passed through Francis’ body and thus he had not officially received his punishment. This reasoning made no sense to the inmate’s lawyers: “He died mentally . . . No man should have to go to the chair twice. The voice of humanity and justice cries out against such an outrage . . . [I]s this an experiment in modern forms of torture . . . Is the state of Louisiana trying to outdo the caesars, the Nazis?” The board denied the pardon, and Francis appealed to the U.S. Supreme Court. By now, his ordeal was national news.

The argument before the highest court was straightforward: the Fourteenth Amendment made the Eighth Amendment binding on the states, and making Francis face the chair again was cruel and unusual punishment. “How many times does the state get,” his attorney asked, “before the due process clause of the Fourteenth Amendment can be used to protect the petitioner from torture?” Louisiana countered that Francis had never suffered the punishment his conviction required.

Two months later, the justices decided narrowly, 5 to 4, against Willie Francis. Four of the justices agreed that the Fourteenth Amendment incorporated, or included, the Eighth Amendment’s ban on cruel and unusual punishments, but they did not believe sending the condemned man back to the chair was cruel. Four other justices believed that repeated attempts to execute were cruel by definition. It was a form of torture, one justice wrote, akin to burning at the stake. The fifth and deciding vote to deny Francis’s appeal came from a justice who believed it was improper for federal judges to impose standards of fairness on the states unless the Constitution required it—and in this instance, he believed, it did not prohibit the state’s action, even though he considered the punishment in this instance to be inhumane and lobbied the governor for a pardon.

The attorneys would not give up, however, and twice more filed appeals to the Supreme Court. Both times, the justices refused to hear their arguments but the last time the appeal was dismissed without prejudice, which meant the Court might reconsider in the light of new evidence that one of the executioners had been drunk and abusive toward Francis before bungling the job. But Willie Francis was tired of fighting. More than a year after his earlier date with death, he sat in the chair again. This time, his body went to an unmarked grave in the coffin his father had bought for his first execution.

From the time Willie Francis took his second walk to the chair until 1972, the Supreme Court heard many cases that challenged the constitutionality of executions. During this time, it overturned the death penalty in numerous individual cases, although the justices never declared capital punishment itself to be unconstitutional. It had only been misapplied in the particular cases before them.

During the 1970s, the Supreme Court set new standards for capital punishment. In Furman v. Georgia (1972), by a slim 5-to-4 majority, the justices decided that executions as practiced were unconstitutional because the judge and jury lacked specific guidelines to ensure fairness in sentencing. States responded by establishing a two stage process for capital cases. One stage decided guilt or innocence, and the second stage allowed juries to consider aggravating or mitigating circumstances that would lead to a more informed decision about punishment. This change won Supreme Court approval in Gregg v. Georgia (1976), and most death-penalty states use this process today. Mandatory death sentences, that is, convictions that automatically require executions, are unconstitutional; the punishment should fit the crime.

The 1980s and 1990s brought further guidelines: states could not execute inmates who became, or remained, insane while on death row (although they could be executed if they regained their sanity); states could not mandate death for murders committed in prison; states could exclude opponents of the death penalty from serving in capital cases; and the list continued. Unwilling to declare the death penalty unconstitutional—after all, it was mentioned in the Fifth Amendment, passed at the same time as the Eighth Amendment, so the framers clearly considered it an acceptable punishment—the justices sought ways to ensure its fair application, if not limit its use. One method was to look to what states permitted as punishment to learn whether a consensus of opinion existed as to which punishments were cruel and unusual. By this standard, the justices decided in 2002 that executing mentally retarded inmates was unconstitutional; in 2005, they reached the same conclusion for juveniles who committed a capital crime while younger than eighteen.

We as a society are still deciding whether capital punishment remains morally acceptable and, if so, under what circumstances. The United States is one of only four countries—the other three are China, Saudi Arabia, and Iran—that uses execution regularly, but we are no longer as convinced of its appropriateness as we once were. Currently, twelve states and the District of Columbia have abolished the death penalty. Five states account for the overwhelming majority of executions in the United States—slightly more than one thousand from 1976 through 2005. Texas tops the list, with more than 360 executions since 1976. Recently, the successful use of DNA evidence to challenge the accuracy of convictions has led some states—Illinois, Maryland, and Indiana, among others—to review capital sentences. The Illinois governor was so disturbed by the number of errors—at least thirteen men wrongly convicted since 1976—and the potential for more mistakes that he pardoned four men and commuted all other capital sentences to life imprisonment before he left office in 2003. Since 1977, more than 110 inmates nationally have been released from death row after new evidence revealed they were convicted wrongly. Although support for capital punishment remains strong, recent surveys reveal that six in ten Americans now favor a moratorium on executions until questions about fairness are resolved.

The history of the Eighth Amendment makes clear that its meaning is continually evolving. The Constitution, with its Bill of Rights, is a living document. It did not fix our rights as they existed in times long past; it gave them room to grow. Oliver Wendell Holmes, Jr., appointed to the Supreme Court in 1902, wrote in 1884 that the “life of law is not logic but experience.” Time brings changes, and the Constitution, like our other institutions, must adapt to new conditions. The framers of the Bill of Rights did not define excessive or cruel and unusual punishments because they knew these concepts would take their meaning from the changing conditions of society. They also trusted us, “We the People,” to ensure that our society would be true to the words we pledged to live by. They expected us to judge in each election whether our government meets a high standard of morality and justice, as well as whether our laws express an acceptable balance between order and freedom. In this way, we continually give fresh meaning to the rights that guard our liberty.