8th Amendment

Next to the 2nd amendment and gun control, the 8th amendment, specifically capital punishment issues are probably the most publicly debated constitutional issues today. The issues are so complex this will be a multi-part posting. Part 1 will be the constitutional discussion while part 2 will address some of the other arguments outside the legal issues.

As always let’s start with the text.

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

Just to be clear, “investigative” torture does not fall under the 8th. This is a matter for the 4th and 14th. I will be addressing “investigative” torture in a future article.

There is not much pubic outcry about bail and fines so let’s get into the fray with criminal sentences and the death penalty.

Reading appellate briefs and decisions can lead to brain damage as each word is picked apart, defined and re-defined. The adjectives “cruel and unusual” at first glance seem to be fairly straight forward but in reality they are quite vague and subject to change as American society’s mores change. Even regional differences will provide conflicts over what is cruel and unusual. A New Yorker in 1885 may find hanging a cattle rustler appalling while the Texas Marshall is being consistent within his culture and norms.

As you have noticed from past articles, I take a fairly strict view of constitutional interpretation. That leaves us in a bit of a quandary. Do we look at the societal standards of 1791 and what the founders would have found cruel or do we endlessly reinterpret the language as our cultural standards of acceptable punishment changes.

What was the mindset of the constitutional authors when it came to crime and punishment? The Crimes Act of 1790 (one year before the Bill of Rights was ratified) not only mandates the death penalty for treason, but also mandates mutilation of the corpse. Keep in mind that The Crimes Act was written largely by the same people who wrote and signed the Constitution and the Bill of Rights. Some of the other more “cruel and unusual” punishments included branding, not only being in the stocks but having your ear nailed to the wooden frame and forced dunking in a river or pond.

Along with the original intent and language, I generally look at the early court decisions to place the issue in its context. The first major Supreme Court decision which placed limits on criminal sentences was in 1878 with Wilkerson v Utah. This banned drawing and quartering, public dissection, burning alive and disemboweling.

Skip ahead nearly a hundred years. In 1978, much had changed but much hadn’t. The key issue in Furman v Georgia was the “arbitrary and inconsistent imposition of the death penalty.” Although this was a death penalty case, the principles can be applied to non-capital sentences. In this decision, some significantly more decisive language was used to clarify what was meant by “cruel and unusual.”

The essential predicate is “that a punishment must not by its severity be degrading to the human dignity,

A severe punishment that is obviously inflicted in wholly arbitrary fashion,

A severe punishment that is clearly and totally rejected throughout society,

A severe punishment that is patently unnecessary.



Now we must attempt to draw a conclusion about the death penalty today.

I would suggest that you, the reader hold the general principle of capital punishment up to each of the four questions laid out in the Furman case.


Is the death penalty a punishment that by its severity be degrading to the human dignity?

Is the death penalty a punishment that is obviously inflicted in wholly arbitrary fashion?

Is the death penalty a punishment that is clearly and totally rejected throughout society?

Is the death penalty a punishment that is patently unnecessary?


Rather than bore you with 5 pages of my thoughts, on these questions, I am going to request that my readers post their opinions on the comments. I want to hear what you think.


The next article will address many of the other moral, emotional, and logical arguments regarding capital punishment.