Do certain methods of execution violate the eighth amendment’s protection against cruel and unusual punishment? If so, what sort of executions are unconstitutional?
I don’t think any of the traditional American methods of execution (hanging, firing squad, electric chair, gas chamber, and lethal injection) have ever been specifically found by the Supreme Court to be unconstitutional. It seems, though, that current public opinion is that lethal injection is the least unpleasant, both for the condemned and the public conscience. IIRC, hangning and firing squad are still legal methods in at least a couple of states (Kansas & Utah?), but are almost never invoked. IMO, the elctric chair and gas chamber are pretty gruesome and should probably be dropped in favor of lethal injection.
As far as non-American execution methods go, like beheading or stoning, they would probably be ruled cruel and unusual if tried in the US, but that is rather unlikely to happen in the first place.
Current execution methods: http://www.deathpenaltyinfo.org/methods.html
You’ll note that hanging is permitted in New Hampshire, Delaware, and Washington. They don’t list it, but I’m pretty sure that Montana is included. Firing squads are authorized in Utah, Oklahoma, and Idaho.
Many states have provisions which allow for alternate methods of execution if one method or another is found unconstitutional.
To found be found unconstitutional, a particular execution method would probably meet one or more of the following criteria:
- results in excessive pain or physical violence
- the process is continually mishandled or misapplied by prison officials, even if the method is humane
- changing decency standards - what was once acceptable may fall out of favor over time.
There is a good discussion of this at OSU Law: http://www.osu.edu/units/law/LawJournal/dennosympab.htm
IMHO, the more an execution methods resembles a Rube Goldberg machine, the less likely it is to be unconstitutional. Drawing and quartering, stoning, beheading by sword are all simple, but exceedingly gruesome - and could lead to excessive zeal among those authorized to conduct them. While complex, a lethal injection has the feeling of a clinical procedure and is more acceptable to the general public.
(Let’s try to keep this one out of GD, shall we?)
I clearly remember in 1972 when the Supreme Court obliterated the death penalty all at once: the main reason given was exactly that it violated the amendment about “cruel and unusual punishments.”
The cruelty of it is not in question.
As for unusual: when the United States is the almost only country left in the world still doing the death penalty, you could make a case for its being unusual, too. Our fellow executioners: China, Iran, Saudi Arabia.
Let’s not forget that the Constitution permits execution as long as the defendent has been afforded due process. It’s perfectly clear.
The 1972 court did not rule against the death penalty because it was cruel. You’re incorrect on that count. The court specifically found that the application of the death penalty was unconstitutional in that it was applied in what may be considered an arbitrary manner - without proper guidelines and subject to discrimination.
From Justice White’s concurring opinion:
In 1976, Gregg v Georgia, the Court clarified this opinion and it was used by the states to reintroduce the death penalty. Most death penalty fights these days argue not about the cruelty of a particular execution method, but about the manner in which it’s administered - aiming above all for fairness and impartiality. Of course, for some groups, the goal is to create a prohibitively high standard, effectively ending executions.
As to unusual, comparisons with other governments are irrelevant and one of the lamest arguments against the death penalty - particularly when you talk about countries with such limited freedoms. As for other Western nations, they’re free to do whatever they please - that’s the nice thing about the Democractic system. In the past 70 years, the US has executed less than 5000 criminals. It’s used sparingly and carefully in the great majority of cases. In China alone, about 2000 people are executed each year. I wonder how many of them got a fair trial?
Ultimately, the death penalty means never having to say, “You again?”. Recidivisim amongst those who receive the death penalty is 0%.
I was afraid of this. Looks like it’s off to GD. 
I believe that Florida recently switched from electric chair to lethal injection, to head off a claim that the former is unconstitutional:
"Florida Gov. Jeb Bush, also a proponent of the death penalty, signed legislation last month allowing an inmate to choose execution by lethal injection – Sims was the first to do so – rather than by electric chair.
That move headed off a U.S. Supreme Court review of whether the chair – gruesomely known as ‘Old Sparky’ – violated the constitutional ban on ‘cruel and unusual punishment.’"
http://www.cnn.com/SPECIALS/views/y/2000/02/bierbauer.scotusdeath.feb24/
If the punishment was not “cruel and unusual” under the common law, that is in Merry Olde England, it is not cruel and unusual here. That is why hanging is not cruel and unusual, because that was the usual method of execution. I don’t know about drawing and quartering, but I don’t think that was the usual method in England. Of course, they didn’t have electrocutions, so that must be decided by the USSCT without resort to the common law.
Actually, that’s probably quite wrong, barbitu8. Scalia and Thomas may be slaves to 18th-century common law, but the Court as a whole has clearly signaled its willingness to consider the prohibition on “cruel and unusual” punishment in light of contemporary mores. One example of this is the Court’s agreement to consider the constitutionality of electrocution, which appeal was made moot by the Florida legislature’s extremely reluctant decision to authorize lethal injection.
The best indication of the “contemporary” approach to “crue and unusual” is a death penalty case that the Court will be hearing this fall. The issue is whether it is constitutional to execute a mentally retarded murderer. Of course, the Court ruled in the mid- to late-80s that it is constitutional to execute retarded killers. The defendant’s petition for review in this case specifically asked whether it was time to reconsider that ruling in light of changes in public opinion since then. It would be extraordinarily unusual for the Court to reverse itself so dramatically so quickly, and the fact that they have agreed to reconsider the question clearly indicates a certain amount of concern for contemporary thinking on how to adminsiter the death penalty.
Thanks for the responses, everyone. So am I right in assuming that there have been no cases before the Supreme Court where the constitutionality of an execution method has been ruled on? It sounds like lucwarm’s example is as close as they came.
Both “cruel” and “unusual” are so incredibly subjective, it’s no wonder there is such legal churning. I think it was a serious failing of the authors of the 8th amendment to use such wording.
As I posted before, that wording referred to whatever was cruel and unusual under common law. Somebody posted that the current USSCT will not adhere to that, but would impose their own subjective standards on what is cruel according to present mores. Maybe, maybe not.
Kentucky did recently switch to lethal injection from the electric chair. However, inmates on death row at the time were given their choice of electrocution or injection.
IMO, (and IANAL, nor am I a Supreme Court Justice) the framers of our constitution were intentionally and brilliantly vague on several points; the problem is in current interperetations of the Bill of Rights. By being vague, they intended to write a document that could cover most situations incredibly well without being excessively long. The Constitution is not really law in and of itself, but more like a “rule book” for making laws. Since lawmaking is a very subjective process, the rules need to be somewhat vague in places to accomodate unforseen circumstances.
OTOH, they could have been just a little less vague with the the Second Amendment. If any amendment is too vague, that has got to be it. I personally find it quite clear, but it seems many today can’t tell which clause is dependent on the other. 
“Cruel and unusual” is a little vague, but spelling out exactly what it means would have meant doubling the length of the entire Bill of Rights. Of course, had they implicitly defined what was OK and what was not, I seriously doubt there’d be many inmates watching cable TV today. The downside of that is that we probably wouldn’t see any of the various self-improvement programs most prisons offer today, either.
On this particular point, as with some other provisions in the U.S. Bill of Rights, they appear to have been drawing on the precedent of the English Bill of Rights 1689. The Eighth Amendment reads:
The English Bill of Rights provided:
barbitu8 wrote:
Well, let’s see. Under English common law, the following punishments were available:
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hanging (not just for murder; it was a general penalty for felonies; prior to the great 19th century reforms, England had over 200 capital offenses);
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hanging, drawing and quartering (high treason);
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beheading (for those of noble blood);
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burning at the stake (for heretics);
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whipping (for sexual offences);
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branding (for political offences short of treason);
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mutilating (e.g. - cutting off ears)(for political offences short of treason).
There was also “pressing to death,” (piling stones on the accused) which was technically not a punishment but an inducement to an accused to plead to a charge.
So, if the 8th Amendment is a “frozen in time” provision, all of these punishments would be available today. I think that this list of punishments is one of the best illustrations of the fact that constitutional provisions are meant to be dynamic, not frozen. Over time, society’s views on what is acceptable state action against its citizens can change - a constitution is not meant to freeze forever the legal system as it existed at the time the constitution was adopted.
Granted that all those sanctions were at one time permissible under the common law, the common law developed, and, as you mentioned, there was the English Bill of Rights, which was the common law when the framers of the Constitution drafted the instrument. As you said, both the English Bill of Rights and our Bill of Rights contains the same terminology, but was referrable to what was “cruel and unusual” when it was drafted, not 200 years prior.
Drawing and quartering was the statutory punishment for treason in Great Britain not only before the English Bill or Rights, but long after the U.S. Bill of Rights. It was finally abolished in 1867. http://www.straightdope.com/classics/a4_239.html
barbitu8, if I understand your position correctly, you’re saying that whatever punishments were allowed at common law at time of the adoption of either of the Bills of Rights could not be cruel and unusual punishment. I can’t speak for the state of the criminal law in the U.S. at the time of the adoption of the Eight Amendment, but the punishments I outlined earlier continued to be in force in England until well into the 19th century. Since the American colonies began with the English common law as their legal system, I will assume there was some correspondence between the penal systems, but I would appreciate hearing what the state of the penal laws were in the 13 original states at the time of the adoption of the Bill of Rights.
Turning to the specific punishments, as noted by bibliophage, drawing and quartering continued well into the 19th century to be the official punishment for treason under English common law (the 1867 date Cecil gives was the last time someone was sentenced to the punishment in England, although it was commuted; Parliament actually abolished it by statute in 1870. (33 & 34 Vict., c. 23, s. 31).
The other punishments I mentioned also appear to have continued well past the enactment of both the English and U.S. Bills of Rights. For example, although drawing and quartering continued to be the main punishment for high treaon, Parliament provided that beheading was an optional punishment: *An Act to alter the Punishment in certain Cases of High Treason,*54 Geo. III, c. 147.
Similarly, at the time of the adoption of the U.S. Bill of Rights, there were around 200 offences in England which carried the death penalty. The number of capital offences in Britain was gradually decreased to only four between 1820-1840, and finally abolished in 1965.
Britain didn’t abolish flogging until 1948: *Criminal Justice Act, 1948,*11 & 12 Geo. VI, c. 58, s. 2.
So, if you’re arguing that any punishment available at common law at the time the 8th Amendment was adopted is by definition not “cruel and unusual,” then the record of abolition suggests that none of the above punishments are cruel and unusual.
I would suggest that is not correct. The U.S. Bill of Rights was meant to restrict the scope of government action: just because something was lawful immediately prior to the adoption of the Bill of Rights does not mean it was consistent with the Bill of Rights. This point is perhaps best illustrated by the First Amendment - prior to it being adopted, governments could restrict speech, and could pass laws governing religion. The First Amendment was meant to change the law in that area, and practices that once were within the powers of government were removed from them. I would argue that the Eighth Amendment operates in the same way.
It seems to me that James Madison was looking for an elegant way to say (with regards to capital punishment) that it needed to be quick and relatively painless and clean. I don’t think that D&Q was accepted as a particularly usual punishment in early America. Beheading was unheard of because under English common law, it was reserved for nobility and wouldn’t have been very applicable in the colonies and would probably therefore have been considered unusual. Hanging was pretty much the order of the day then. It would appear that the intent was to discourage the judiciary from imposing punishment based upon whimsy.