Northwestern Journal of Law & Social Policy
Revisiting Beccaria's Vision: e Enlightenment,
America's Death Penalty, and the Abolition
Movement
John D. Bessler
Revisiting Beccaria's Vision: e Enlightenment, America's Death Penalty, and the Abolition Movement
Copyright 2009 by Northwestern University School of Law Volume 4 (Fall 2009)
Northwestern Journal of Law and Social Policy
Revisiting Beccaria’s Vision: The Enlightenment,
America’s Death Penalty,
and the Abolition Movement
John D. Bessler
*
I am certainly not an advocate for frequent changes in laws and
constitutions. But laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths discovered and
manners and opinions change, with the change of circumstances,
institutions must advance also to keep pace with the times. We might as
well require a man to wear still the coat which fitted him when a boy as
civilized society to remain ever under the regimen of their barbarous
ancestors.
—Thomas Jefferson
**
Perhaps the whole business of the retention of the death penalty will seem
to the next generation, as it seems to many even now, an anachronism too
discordant to be suffered, mocking with grim reproach all our clamorous
professions of the sanctity of life.
—Benjamin N. Cardozo
***
*
Visiting Associate Professor of Law, The George Washington University Law School, Washington, D.C.
The author has taught a death penalty seminar since 1998, first as an adjunct professor at the University of
Minnesota Law School and later at The George Washington University Law School. The author extends a
special thanks to Dean Frederick Lawrence for making available a summer research grant; research
assistants Michael Ansell, Jonathan Auerbach and Mark Taticchi; his many former students for their
thoughtful in-class participation; and the guest speakers who shared their own insights—both in class and
in their writings—over the years: the late Hon. Donald P. Lay of the U.S. Court of Appeals for the Eighth
Circuit; Sandra Babcock and Joseph Margulies at the Northwestern University School of Law; Robin
Maher, Director of the ABA’s Death Penalty Representation Project; Richard Dieter, Executive Director of
the Death Penalty Information Center; David Lillehaug, former U.S. Attorney for the District of Minnesota;
Susan Karamanian, GW’s Associate Dean for International and Comparative Legal Studies; the Hon. Bruce
Peterson; and Tom Fraser, John Getsinger, Andre Hanson, Tom Johnson, Steven Kaplan, Steve Pincus,
Tim Rank, Jim Volling and Steve Wells—all lawyers in private practice who have worked on capital cases.
The author also thanks the Journal’s staff, especially George Balgobin, Jason Britt, Sarah Hoffman,
Amanda Inskeep, David King, Lauren Matecki, Michelle Olson, and Heather Renwick, for their invaluable
editorial assistance. The views expressed here are solely those of the author.
**
Letter from Thomas Jefferson to Samuel Kercheval, July 12, 1816. This excerpt from Jefferson’s letter is
one of four inscriptions chiseled in stone at the Jefferson Memorial in Washington, D.C.
***
BENJAMIN N. CARDOZO, LAW AND LITERATURE 93–94 (1931). Cardozo made this prediction in 1931, a
year before his appointment to the Supreme Court. Carol S. Steiker, Capital Punishment and American
Exceptionalism, 81 O
R. L. REV. 97, 97 (2002).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
196
I. INTRODUCTION
¶1 In 1764, Cesare Beccaria, the 26-year-old eldest son of an Italian nobleman,
published a short treatise, Dei delitti e delle pene, that was translated into English three
years later as On Crimes and Punishments.
1
In it, Beccaria argued that “there must be
proportion between crimes and punishments.”
2
Beccaria—the father of the abolitionist
movement
3
—pointedly asked: “Is death really a useful or necessary punishment for the
security or good order of society?”
4
“By what right,” he pondered, “can men presume to
1
CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS xxxi (Richard Bellamy ed.,
Richard Davies trans., 1995) [hereinafter BECCARIA (Bellamy ed.)]; see also MARCELLO MAESTRO, CESARE
BECCARIA AND THE ORIGINS OF PENAL REFORM 5 (1973) (“Born in Milan on March 15, 1738, he was the
first son of aristocratic though not very wealthy parents, Giovanni Saverio and Maria Beccaria. His full
name and title were Marchese Cesare Beccaria Bonesana.”). The first Italian edition of Beccaria’s book—a
slender volume coming in at slightly more than 100 pages—was published by Aubert of Leghorn and was
received in Milan on July 16, 1764. Id. at 20. The first English translation of the book became available in
the United States in the 1770s. See id. at 43 n.10;
CAPITAL PUNISHMENT IN THE UNITED STATES: A
DOCUMENTARY HISTORY 4 (Bryan Vila & Cynthia Morris, eds.,1997); LOUIS P. MASUR, RITES OF
EXECUTION: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AMERICAN CULTURE, 1776–1865, at 52
(1989). By the end of the eighteenth century approximately sixty editions of On Crimes and Punishments
had been published. M
AESTRO, supra, at 43. A more complete history of Beccaria’s book—and additional
information about the editions and translations of it—can be found elsewhere. See, e.g., B
ECCARIA
(Bellamy ed.) supra, at xli–xliv, xlvi–xlvii; STUART BANNER, THE DEATH PENALTY: AN AMERICAN
HISTORY 91 (2002).
There are multiple English translations of Beccaria’s On Crimes and Punishments.
CESARE BECCARIA,
ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS xxx (Aaron Thomas, ed., Aaron Thomas & Jeremy
Parzen, trans., 2008) [hereineafter B
ECCARIA (Thomas ed.)]. I have chosen to utilize the most recent one, a
translation published in 2008 by the University of Toronto Press as part of the Lorenzo Da Ponte Italian
library series. André Morellet completed a French translation of the book in 1765, and German, Swedish,
Russian, Spanish and early English translations were often based on that French translation, which radically
reorganized Beccaria’s book and transposed whole paragraphs and sentences. Id. at xxvii–xxx; M
AESTRO,
supra, at 40–43. The French translation of Beccaria’s book, prepared by Morellet, was not even sent to
Beccaria until after its publication in France. B
ECCARIA (Bellamy ed.), supra, at 119–20 n.4; MAESTRO,
supra, at 40. What has been described as the “authoritative Italian edition” of Dei delitti e delle pene—one
that Beccaria himself had a hand in revising—came out in 1766 as Beccaria’s fame was growing around the
globe. Aside from the translation utilized here, only two other English translations of that authoritative
Italian text exist. B
ECCARIA, (Thomas ed.), supra, at xxx & n.48 (citing BECCARIA (Bellamy ed.), supra &
C
ESARE BECCARIA, ON CRIMES AND PUNISHMENTS (David Young trans., 1986) [hereineafter BECCARIA
(Young trans.)]).
2
BECCARIA (Thomas ed.), supra note 1, at 17. Beccaria believed that crimes are “distributed across a scale
that moves imperceptibly by diminishing degrees from the highest to the lowest” and that “[i]f geometry
were applicable to the infinite and obscure combinations of human actions, there would be a corresponding
scale of punishments, descending from the most severe to the mildest.” Id. at 18.
3
See WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW 5 (3d ed.
2002); Hugo Adam Bedau, Interpreting the Eighth Amendment: Principled vs. Populist Strategies, 13 T.M.
COOLEY L. REV. 789, 805 (1996) (“The original impetus to abolish the death penalty two hundred years
ago in Europe was fueled by Cesare Beccaria’s little book, On Crimes and Punishments, and by Jeremy
Bentham in England.”).
The term “abolitionist” is commonly used to refer to opponents of slavery or to opponents of capital
punishment. See Krista L. Patterson, Acculturation and the Development of Death Penalty Doctrine in the
United States, 55 D
UKE L.J. 1217, 1226 (2006). It is used here to refer to anti-death penalty advocates.
The connection between opponents of slavery and the death penalty is a long-standing one. Anti-slavery
activists, such as Frederick Douglass, often also opposed capital punishment. See W
ILLIAM S. MCFEELY,
FREDERICK DOUGLASS 189 (1991); FREDERICK DOUGLASS, THE LIFE AND WRITINGS OF FREDERICK
DOUGLASS 418 (Phillip S. Foner, ed., 1950); Dr. James J. Megivern, Our National Shame: The Death
Penalty and the Disuse of Clemency, 28 C
AP. U. L. REV. 595, 595–96 (2000) (citing 3 THE FREDERICK
DOUGLASS PAPERS 242–48 (John W. Blassingame ed., 1979)).
4
BECCARIA (Thomas ed.), supra note 1, at 26 (italics in original).
Vol. 4:2] John D. Bessler
197
slaughter their fellows?”
5
“It seems absurd to me,” Beccaria continued, “that the laws,
which are the expression of the public will, and which execrate and punish homicide,
should themselves commit one, and that to deter citizens from murder they should order a
public murder.”
6
¶2 Beccaria railed against the barbarity of state-sanctioned executions, viewing them
as violative of natural law. “[S]overeignty and the laws,” he wrote, “are nothing but the
sum of the smallest portions of the personal liberty of each individual; they represent the
general will, which is the aggregate of particular wills.”
7
“Who has ever willingly given
other men the authority to kill him?” he asked rhetorically,
8
adding that “the death
penalty is not a right, but the war of a nation against a citizen.”
9
Viewing life itself as “a
natural right,”
10
Beccaria vehemently called for the death penalty’s abolition. “[I]f I can
demonstrate that the death penalty is neither useful nor necessary,” the idealistic Beccaria
proclaimed, “I will have won the cause of humanity.”
11
¶3 For Beccaria, executions brutalized societies. “If the passions or the necessities of
war have taught us how to shed human blood,” he believed, “the laws, which moderate
the conduct of men, should not augment that cruel example, which is all the more baleful
when a legal killing is applied with deliberation and formality.”
12
To persuade skeptical
readers, Beccaria posed a series of questions: “Can the cries of an unfortunate wretch
rescue from time, which never reverses its course, deeds already perpetrated?”
13
“When
reading history, who does not shudder with horror at the barbaric and useless tortures that
have been cold-bloodedly invented and practiced by men who considered themselves
wise?”
14
“What must men think when they see wise magistrates and solemn ministers of
justice, who with tranquil indifference have a criminal dragged with slow precision to his
death, and as a poor wretch writhes in his last agonies while awaiting the fatal blow, the
judge goes on with cold insensitivity—and perhaps even with secret satisfaction at his
own authority—to savour the comforts and pleasures of life?”
15
5
Id. at 51.
6
Id. at 55.
7
Id. at 51.
8
Id.
9
Id. at 52. Similar views were also expressed by Dr. Benjamin Rush, an early American physician who
believed that “[t]he punishment of death has been proved to be contrary to the order and happiness of
society.” Steven H. Jupiter, Constitution Notwithstanding: The Political Illegitimacy of the Death Penalty
in American Democracy, 23 F
ORDHAM URB. L.J. 437, 478 n.198 (1996). Dr. Rush wrote: “Every man
possesses an absolute power over his own liberty and property, but not over his own life. When he
becomes a member of political society, he commits the disposal of his liberty and property to his fellow
citizens; but as he has no right to dispose of his life, he cannot commit the power over it to any body of
men. To take away life, therefore, for any crime, is a violation of the first political compact.” Id.
10
BECCARIA (Thomas ed.), supra note 1, at 61. The concept of “natural rights” was, of course, well-known
to the Framers of the U.S. Constitution. See Terry Brennan, Natural Rights and the Constitution: The
Original “Original Intent”, 15 H
ARV. J.L. & PUB. POL’Y 965, 971–74 (1992).
11
BECCARIA (Thomas ed.), supra note 1, at 61.
12
Id. at 55. Dr. Benjamin Rush—Thomas Jefferson’s friend and correspondent—felt much the same way,
saying capital punishment “lessens the horror of taking away human life” and thus “tends to multiply
murders.” B
ANNER, supra note 1, at 104.
13
BECCARIA (Thomas ed.), supra note 1, at 26.
14
Id. at 51.
15
Id. at 56.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
198
¶4 On Crimes and Punishments also spoke out against torture—a concept associated
with the intentional infliction of pain.
16
Beccaria contended that the use of torture is
unlikely to produce truthful testimony and runs contrary to the principle that innocent
people not be punished.
17
“No man,” Beccaria wrote, “can be considered guilty before
the judge has reached a verdict, nor can society deprive him of public protection until it
has been established that he has violated the pacts that granted him such protection.”
18
Beccaria especially decried the use of torture to punish infamy, writing that “a man
judged infamous by the law” should not suffer “the dislocation of his bones.”
19
“Torture
itself,” Beccaria emphasized, “causes real infamy to its victims.”
20
¶5 Nevertheless, executions and torture devices like the rack and the thumbscrew were
commonplace throughout Europe in the 1700s,
21
and the novelty of Beccaria’s views
were not lost on him. Indeed, Beccaria began his treatise with a quote from Renaissance
philosopher and English statesman Francis Bacon: “In all negociations of difficulty, a
man may not look to sow and reap at once, but must prepare business, and so ripen it by
degrees.”
22
Beccaria thus knew that change would not come easily.
¶6 Although Beccaria and one of his early supporters, Pietro Verri, argued for the
abolition of torture, a practice now prohibited by international law,
23
only limited reform
on that front had taken place before Beccaria’s rise to prominence. Sweden had outlawed
torture for ordinary crimes in 1734, but would not do so for all purposes until 1772.
24
Likewise, in 1740, Frederick II, King of Prussia,
25
abolished torture for all but “especially
serious cases,” and, in 1754 completely banned judicial torture, calling it “gruesome” and
16
Christoph Burchard, Torture in the Jurisprudence of the Ad Hoc Tribunals, 6 J. INT’L CRIM. JUST. 159,
160 (2008); see also Paola Gaeta, When Is the Involvement of State Officials a Requirement for the Crime
of Torture?, 6 J.
INT’L CRIM. JUST. 183 (2008) (discussing the definition of torture).
17
See Matthew Lippman, The Development and Drafting of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 17 B.C.
INT’L & COMP. L.
REV. 275, 281–82 (1994).
18
BECCARIA (Thomas ed.), supra note 1, at 32 (italics in original).
19
Id. at 33–34.
20
Id.
21
See Günter Frankenberg, Torture and Taboo: An Essay Comparing Paradigms of Organized Cruelty, 56
A
M. J. COMP. L. 403, 413 (2008); Parker B. Potter, Jr., Antipodal Invective: A Field Guide to Kangaroos in
American Courtrooms, 39 A
KRON L. REV. 73, 83 (2006); Margaret Jane Radin, The Jurisprudence of
Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 128 U.
PA. L. REV. 989, 1031
(1978). For graphic descriptions of torture and executions in Europe in the 1700s, see M
ICHEL FOUCAULT,
DISCIPLINE & PUNISH: THE BIRTH OF THE PRISON 3–6, 12–13 (Alan Sheridan trans., 1995); MAESTRO,
supra note 1, at 14–15.
22
BECCARIA (Thomas ed.), supra note 1, at xxi, 3; BECCARIA (Bellamy ed.), supra note 1, at xxxiii, 1. The
frontispiece to the third edition of Dei delitti e delle pene, published in 1765, was a copperplate engraving
based on a sketch Beccaria provided. It depicts a figure, Justice, shunning an executioner who is carrying a
sword and axe in his right hand and who is trying to hand Justice a cluster of severed heads with his
outstretched left hand. Justice’s gaze is instead transfixed on a pile of prisoner’s shackles and worker’s
tools—the instruments symbolizing imprisonment and hard labor. BECCARIA (Thomas ed.), supra note 1, at
2.
23
Isaac A. Linnartz, The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the
U.N. Convention Against Torture, 57 D
UKE L.J. 1485, 1491–93 (2008).
24
See BECCARIA (Thomas ed.), supra note 1, at 173 n.10; Heikki Pihlajamäki, The Painful Question: The
Fate of Judicial Torture in Early Modern Sweden, 25 L
AW & HIST. REV. 557, 574 (2007).
25
Frederick II became an admirer of Beccaria. In a September 5, 1777 letter to Voltaire, Frederick II
lauded Beccaria, writing: “Beccaria has left nothing to glean after him; we need only to follow what he has
so wisely indicated.” M
AESTRO, supra note 1, at 134.
Vol. 4:2] John D. Bessler
199
“an uncertain means to discover the truth.”
26
Holy Roman Empress Maria Theresa of
Austria (1717-1780) was particularly slow to act, abolishing torture only in 1776, mainly
at the urging of Austrian law professor Joseph von Sonnenfels.
27
¶7 It is clear that when Beccaria wrote On Crimes and Punishments, he recognized
that torture and executions—then well-entrenched worldwide—would not disappear
overnight. “Human sacrifices,” Beccaria conceded, “were common among almost all
nations,” and he acknowledged that “only a few societies have refrained from use of the
death penalty—and for only a brief period of time.”
28
In fact, the list was extremely
short. In the first century A.D., the Buddhist King of Lanka, Amandagamani, abolished
the death penalty during his reign, with successive kings following suit.
29
In 724 A.D.,
Japan’s Emperor Shomu, a devout Buddhist, also forbade executions—as did some early
Buddhist rulers in India.
30
In 818 A.D., Japanese Emperor Saga also outlawed the death
penalty, effectively abolishing it for the next 300 years,
31
while Emperor Taizong of Tang
barred executions in China, leading to an execution-free period there between 747 and
759 A.D.
32
Empress Elizabeth Petrovna (1709-1761) also decreed the suspension of
executions in Russia for a short period of time in the 1750s, though the death penalty
itself was not formally repealed.
33
In Western Europe, William the Conqueror abolished
the death penalty in 1066, though he did so only because he preferred mutilations of the
body, such as castration, to executions.
34
¶8 Though Beccaria knew what he was up against, he remained optimistic, appealing
to monarchs everywhere to rid society of capital punishment, promising the sweet
vindication of history. “The voice of one philosopher,” he admitted, “is too weak against
26
MAESTRO, supra note 1, at 18–19, 126–27, 136; BECCARIA (Thomas ed.), supra note 1, at 173 n.11;
Frankenberg, supra note 21, at 408.
27
Beccaria’s book greatly influenced the debate over the use of torture—what Beccaria called “a cruelty
condoned by custom in most nations.” B
ECCARIA (Thomas ed.), supra note 1, at 32. Most significantly, his
book influenced Sonnenfels to fight for the abolition of torture and the death penalty—and inspired him to
write a book of his own, On the Abolition of Torture, that was published in 1775.
28
BECCARIA (Thomas ed.), supra note 1, at 57.
29
C.H.S. Jayawardene, The Death Penalty in Ceylon, 3 CEYLON J. HIST. SOC. STUD. 166, 185 (1960).
30
David T. Johnson, Japan’s Secretive Death Penalty Policy: Contours, Origins, Justifications, and
Meanings, 7 A
SIAN-PAC. L. & POL’Y J. 62 n.27 (2006) (citing Damien P. Horigan, Of Compassion and
Capital Punishment: A Buddhist Perspective on the Death Penalty, 41 A
M. J. OF JURIS. 271, 283–85
(1996)).
31
Taylor Young Hong, Televised Executions and Restoring Accountability to the Death Penalty Debate, 29
C
OLUM. HUM. RTS. L. REV. 787, 794 n.38 (1998) (reviewing JOHN D. BESSLER, DEATH IN THE DARK:
MIDNIGHT EXECUTIONS IN AMERICA (1997) [hereinafter BESSLER, DEATH IN THE DARK] (citation omitted)).
32
CHARLES BENN, CHINA’S GOLDEN AGE: EVERYDAY LIFE IN THE TANG DYNASTY 8 (2002).
33
See BECCARIA (Thomas ed.), supra note 1, at 174 n.15; ANDREW A. GENTES, EXILE TO SIBERIA, 1590-
1822:
CORPOREAL COMMODIFICATION AND ADMINISTRATIVE SYSTEMATIZATION IN RUSSIA 51, 78 (2008);
Maria Kiriakova, The Death Penalty in Russia 1917-2000: A Bibliographic Survey of English Language
Writings, 30 I
NT’L J. LEGAL INFO. 482, 486–87 (2002). Though Beccaria praised the Russian empress as
providing “the leaders of all peoples an illustrious example worth at least as much as many conquests
bought with the blood of her country’s sons,” see B
ECCARIA (Thomas ed.), supra note 1, at 52, the
“reality”—as one commentator wrote—was that Russia’s death penalty “was replaced by terribly cruel
punishments which often resulted in the convict’s death.” Id. at 174 n.15. As that author writes: “In fact,
convicts were beaten with the knut, their nostrils were torn, and then their forehead and cheeks were
branded with an iron. Many died and those who survived were usually deported to do forced labour in
Siberia.” Id.
34
Frederick C. Millett, Will the United States Follow England (and the Rest of the World) in Abandoning
Capital Punishment?, 6 P
IERCE L. REV. 547, 551 (2008). Henry I ultimately reinstated the death penalty in
1108 and the death penalty was not abolished again in England until 1965. Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
200
the clamour and the cries of so many people who are guided by blind habit.”
35
But
calling upon “the few sages scattered across the face of the earth” to “echo” back to him,
he countered:
[I]f the truth should reach the throne of the monarch—despite the many
obstacles that keep it at bay against his wishes—let him know that it
arrives with the secret support of all mankind; and let him know that the
bloody notoriety of conquerors will fall silent before him and that a just
posterity will bestow him a pre-eminent place among the peaceful
monuments of the Tituses, the Antonines, and the Trajans.
36
That few nations had barred executions, Beccaria lamented, “is consistent with the fate of
great truths, which last no longer than a flash of lightning in comparison with the long
and dark night that envelopes mankind.”
37
“The happy epoch,” the young Beccaria
wrote, “has not yet arrived in which truth shall be—as error has heretofore been—in the
hands of the greatest number.”
38
¶9 In his own lifetime, Beccaria witnessed only modest success—dying alone in his
house in 1794 in the midst of the bloody French Revolution and just two years after the
notorious French physician, Dr. Guillotin, invented his beheading machine.
39
In 1786,
persuaded by Beccaria’s ideas, Grand Duke Leopold of Tuscany did adopt a Tuscan
penal code that totally eliminated the death penalty,
40
and in 1787, Holy Roman Emperor
35
BECCARIA (Thomas ed.), supra note 1, at 57.
36
Id. The Coliseum in Rome, which gets its name from its colossal size, was originally known as the
“Amphitheatre of Titus.” It was the emperor’s property—a place where slaves were taken to die, where
criminals were executed, and where gladiators fought to the death and for their own lives, often against
wild beasts. Livaudais v. Municipality No. 2, 16 La. 509, 1840 WL 1413 (1840); Rachel Stevens, The
Trafficking of Children: A Modern Form of Slavery, Using the Alien Tort Statute to Provide Legal
Recourse, 5 W
HITTIER J. CHILD & FAM. ADVOC. 645, 652 (2006); accord FIK MEIJER, THE GLADIATORS:
HISTORY’S MOST DEADLY SPORT (2007).
37
BECCARIA (Thomas ed.), supra note 1, at 57.
38
Id.
39
MAESTRO, supra note 1, at 153–55. In the early 1790s, during the French Revolution’s infamous Reign
of Terror led by Robespierre, approximately 17,000 executions of presumed enemies of the state took
place. William E. Nelson, Marbury v. Madison, Democracy, and the Rule of Law, 71 T
ENN. L. REV. 217,
227 (2004); see also Scott M. Malzahn, State Sponsorship and Support of International Terrorism:
Customary Norms of State Responsibility, 26 H
AST. INT’L & COMP. L. REV. 83, 86 (2002).
40
BECCARIA (Thomas ed.), supra note 1, at xxix; MAESTRO, supra note 1, at 124, 135; Laurence A. Grayer,
A Paradox: Death Penalty Flourishes in U.S. While Declining Worldwide, 23 D
ENV. J. INT’L L. & POL’Y
555, 557 (1995). The Grand Duke of Tuscany, Pietro Leopold (or Leopold II as he became known in 1790
after succeeding his brother, Joseph II), also ordered the burning of instruments of torture, and was
apparently pleased with the results, reporting in 1789 that “mild laws together with a careful vigilance” had
reduced common crimes and almost eliminated “the most atrocious” ones. M
AESTRO, supra note 1, at 122,
135; Helen Borowitz & Albert Borowitz, Book Review, 45 M
D. L. REV. 1066, 1070 n.8 (1986) (reviewing
S
AMUEL Y. EDGERTON, JR., PICTURES AND PUNISHMENT: ART AND CRIMINAL PROSECUTION DURING THE
FLORENTINE RENAISSANCE (1985)).
Other European and American intellectuals, including Jeremy Bentham and Dr. Benjamin Rush, would
later cite the Tuscan example in their anti-death penalty advocacy. Joan Fitzpatrick & Alice Miller,
International Standards on the Death Penalty: Shifting Discourse, 19 B
ROOK. J. INT’L L. 273, 336 n.289
(1993) (citing H
UGO ADAM BEDAU, DEATH IS DIFFERENT: STUDIES IN THE MORALITY, LAW, AND POLITICS
OF
CAPITAL PUNISHMENT 85–86 (1987)); MAESTRO, supra note 1, at 140–41; see also Hugo Adam Bedau,
Bentham’s Utilitarian Critique of the Death Penalty, 74 J.
CRIM. L. & CRIMINOLOGY 1033, 1033–36 (1983)
(describing Bentham’s writings against capital punishment, including in his 1775 book, Rationale of
Punishment).
Vol. 4:2] John D. Bessler
201
Joseph II, Leopold’s brother, followed suit, abolishing Austria’s death penalty save for
crimes of revolt against the state.
41
It was the translation of Beccaria’s ideas, however,
that enabled them to breathe life over time. Those writings, once translated, became
influential not just with a few monarchs but with scores of European and American
intellectuals.
42
¶10 To date, Beccaria’s vision—of a world without torture and the death penalty, and in
which life imprisonment would be the ultimate sanction—has not yet been realized, not
by a long shot. Acts of torture still occur
43
and 60 countries, including the United States
of America, still authorize capital punishment for ordinary crimes,
44
though a growing
number of nations—137 at last count—have outlawed executions either by law or in
practice.
45
Of the countries that retain capital punishment for ordinary crimes—among
them Afghanistan, China, Cuba, the Democratic Republic of Congo, Iran, Iraq, Libya,
Malaysia, North Korea, Pakistan, Saudi Arabia, Somalia, Uganda and Yemen—many are
autocratic or totalitarian regimes with abysmal human rights records; in that list, only
Japan and the United States stand out as highly industrialized countries.
46
41
MAESTRO, supra note 1, at 122, 136; see also Patterson, supra note 3, at 1219 n.11 (citing M. MARC
ANCEL, EUROPEAN COMM’N ON CRIME PROBLEMS, THE DEATH PENALTY IN EUROPEAN COUNTRIES 9
(1962)). Joseph II’s mother was Empress Maria Theresa, who died in 1780 after a long reign. M
AESTRO,
supra note 1, at 112. Joseph II (1741-1790)—whose sister, Marie Antoinette, was guillotined in France in
1793—ruled for a decade following his mother’s death. Id. at 122.
42
On Crimes and Punishments went through six editions in just eighteen months and was translated into
several languages—a kind of eighteenth-century bestseller. B
ECCARIA (Thomas ed.), supra note 1, at xxix;
C
ESARE BECCARIA, ON CRIMES AND PUNISHMENTS, at x (Henry Paolucci, trans., 1963) [hereinafter
B
ECCARIA (Paolucci, trans.); see also Daye v. State, 769 A.2d 630, 637 (Vt. 2000) (noting “the influence of
Cesare Beccaria” on the Pennsylvania Constitution of 1776); George Fisher, The Birth of the Prison Retold,
104 Y
ALE L.J. 1235, 1278 (1995) (“Beccaria was enormously influential in Britain.”); Matthew A. Pauley,
The Jurisprudence of Crime and Punishment from Plato to Hegel, 39 A
M. J. JURIS. 97, 131 (1994)
(discussing Beccaria’s influence on monarchs); id. (“Two years after the original anonymous publication,
in Tuscany, of Beccaria's On Crimes and Punishments, a French translation was completed by Abbé
Morellet. With amazing rapidity, the book became the toast of salons and courts from Paris to Vienna. As
Henry Paolucci puts it in the introduction to his contemporary edition of Beccaria's work, ‘as if an exposed
nerve had been touched, all Europe was stirred to excitement.’ Beccaria became a world celebrity.
Voltaire praised his book as ‘le code de l'humanité,’ translating it himself and writing a long commentary
on it. Diderot did the same thing.”).
On Crimes and Punishments is still considered one of the most influential books of the past three
centuries on those subjects. See B
ECCARIA (Thomas ed.), supra note 1, at x.
43
See, e.g., Sarah Joseph, Committee Against Torture: Recent Jurisprudence, 6 HUM. RTS. L. REV. 571
(2006).
44
See Abolish the Death Penalty, Amnesty International, http://www.amnesty.org/en/death-penalty (last
visited Aug. 31, 2009). Nations that are abolitionist for “ordinary crimes” retain the death penalty for
crimes such as those committed in wartime or under military law. See Ursula Bentele, Race and Capital
Punishment in the United States and Africa, 19 BROOK. J. INT’L L. 235, 240 n.15 (1993).
45
See Abolish the Death Penalty, supra note 44. Amnesty International lists all “Abolitionist” and
“Retentionist” countries, breaking down the abolitionist countries into three categories: “Abolitionist for all
Crimes,” “Abolitionist for Ordinary Crimes only,” and “Abolitionist in Practice.” Id.
46
See Abolitionist and Retentionist Countries, Amnesty International, www.amnesty.org/en/death-
penalty/abolitionist-and-retentionist-countries#retentionist (last visited Aug. 31, 2009). Japan’s death
penalty—not exactly a model of transparency and accountability—is carried out with utmost secrecy. Until
a short time ago, the Japanese government actually did not even publicly disclose when executions would
take place, and executed inmates’ family members only learned of executions when told to come and pick
up the bodies. B
ESSLER, DEATH IN THE DARK, supra note 31, at 192. In December 2007, under mounting
pressure from critics, Japanese officials finally modified that practice. They now publicly release the
names and crimes of those hanged, but only on the day of the execution. Japan, which has 102 people on
death row, recently hanged three murderers on the same day—an event reminiscent of a triple execution
that took place in Arkansas in 1994. Id. at 77; Blaine Harden, Japan Hangs Three Killers as Pace of
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
202
¶11 The progress made by the abolitionist movement—especially when one looks back
at the sheer number of executions that were carried out in medieval times and the
Enlightenment era—is striking. Europe is now a death-penalty-free zone;
47
America’s
closest neighbors, Canada and Mexico, are abolitionist;
48
and a growing number of poor
and developing countries, such as Albania and Angola, Cambodia and Colombia, Haiti
and Nicaragua, and Rwanda and Azerbaijan, have totally barred executions.
49
Even
South Africa—once the home of a brutal apartheid regime that made frequent use of
executions—no longer authorizes death sentences after the country’s Constitutional Court
declared them unconstitutional over a decade ago.
50
¶12 As we approach the 250th anniversary of the publication of On Crimes and
Punishments, it seems fitting to look back at where the abolition movement has traveled
so far, to gauge where we stand now, and to assess what may lie ahead. Beccaria’s book
shaped influential Enlightenment thinkers such as Bentham and Voltaire as well as
countless early American abolitionists,
51
including Dr. Benjamin Rush, an American
founding father and one of Pennsylvania’s leading lights.
52
But Beccaria’s views—
spread haphazardly in the eighteenth century, sometimes through unauthorized editions
and translations
53
—undeniably still have currency today, even if Beccaria could never
Executions Rises, WASH. POST, June 18, 2008, at A10.
47
SANGMIN BAE, WHEN THE STATE NO LONGER KILLS: INTERNATIONAL HUMAN RIGHTS NORMS AND
ABOLITION OF CAPITAL PUNISHMENT 24–27 (2007). Abolition of the death penalty is now a condition of
entry into the European Union. S
CHABAS, supra note 3, at 302–03.
48
Canada abolished the death penalty for ordinary crimes in 1976 and for all crimes in 1998. Mexico
abolished the death penalty for all crimes in 2005. See Abolitionist and Retentionist Countries, supra note
46.
49
Id.
50
S v Makwanyane and Another, 1995 (6) BCLR 665 (CC). Interpreting a constitutional bar on “cruel,
inhuman or degrading treatment or punishment,” South Africa’s Constitutional Court declared the death
penalty unconstitutional, and in doing so invoked the African concept of “ubuntu”—a concept closely
associated with the Western concept of human dignity. John D. Bessler, In the Spirit of Ubuntu: Enforcing
the Rights of Orphans and Vulnerable Children Affected by HIV/AIDS in South Africa, 31 H
AST. INT’L &
COMP. L. REV. 33, 89 n.274 (2008); accord Ursula Bentele, Back to an International Perspective on the
Death Penalty as a Cruel Punishment: The Example of South Africa, 73 T
UL. L. REV. 251 (1998); Peter
Norbert Bouchkaert, Shutting Down the Death Factory: The Abolition of Capital Punishment in South
Africa, 32 S
TAN. J. INT’L L. 287 (1996). In American courts, of course, the concept of human dignity has
also become a touchstone of Eighth Amendment jurisprudence. Woodson v. North Carolina, 428 U.S. 280,
304 (1976); see also Glass v. Louisiana, 471 U.S. 1080, 1085 (1985) (Brennan, J., dissenting from denial of
certiorari) (“[B]asic notions of human dignity command that the State minimize ‘mutilation’ and
‘distortion’ of the condemned prisoner’s body.”).
51
Beccaria had a special influence on Enlightenment figure Francois-Marie Arouet, better known by his
pseudonym, Voltaire. See Joshua E. Kastenberg, An Enlightened Addition to the Original Meaning:
Voltaire and the Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment, 5 T
EMP. POL. &
CIV. RTS. L. REV. 49, 50, 55–56 (1995).
52
MAESTRO, supra note 1, at 140 (“The influence of Beccaria’s ideas in Pennsylvania was so great that
several prominent men went so far as to follow him in his stand for the complete abolition of the death
penalty. In 1792 Dr. Benjamin Rush, a distinguished citizen and professor of clinical medicine at the
University of Pennsylvania, published an essay entitled Considerations of the Injustice and Impolicy of
Punishing Murder by Death in which he proclaimed that ‘the marquis of Beccaria has established a
connexion between the abolition of capital punishment, and the order and happiness of society.’”).
53
See, e.g., BECCARIA (Thomas ed.), supra note 1, at xxvii–xxviii (noting the editorial liberties that a
French translator took in translating Beccaria’s book); M
AESTRO, supra note 1, at 40 (reprinting a letter that
a French translator sent to Beccaria informing him of the completed translation, with the translator writing:
“Men of letters belong to all nations and to the whole world; they are united by links stronger than those
5which exist among the citizens of one country, the inhabitants of one city, the members of one family.”).
On Crimes and Punishments would be widely distributed and read in the United States for many decades.
Vol. 4:2] John D. Bessler
203
have imagined all the twenty-first century technologies now capable of transmitting his
ideas.
54
¶13 America’s Founding Fathers read Beccaria’s text by candlelight, sometimes in
Italian,
55
but in the Information Age, television, radio, blogs, and e-mails now spread
facts and ideas at supersonic speed, revolutionizing—as never before—the anti-death
penalty movement’s capabilities. After recalling that movement’s long history, from its
humble beginnings with one Italian criminologist, to anti-death penalty efforts in the
Progressive Era, to litigation in the 1970s before the Supreme Court, this Article explores
the more recent grassroots moratoria and abolition initiatives powered by the Internet. In
recounting how the abolition of the death penalty is rapidly becoming a norm of
international law, this Article further examines how America—with its retentionist
position—is becoming increasingly isolated from the world community.
¶14 In that milieu, this Article also analyzes existing Eighth Amendment jurisprudence,
evolving public attitudes, and the ongoing legal and political struggles in the United
States over capital punishment. In particular, this Article seeks to answer some difficult
and thorny questions in the wake of recent Supreme Court cases dealing with everything
from death sentences for child rape
56
to the constitutionality of lethal injection
57
to the
habeas corpus rights of Guantánamo detainees.
58
What role will legislatures, U.S. courts
and the American public play in future battles over America’s death penalty? After the
Supreme Court’s 7-2 ruling in Baze v. Rees,
59
which upheld Kentucky’s lethal injection
protocol, is the Constitution’s ban on “cruel and unusual punishments” a dead letter? Or
are Eighth Amendment claims still as viable as ever in the death penalty context? And
more than two centuries after Beccaria’s death, just what lies ahead for the abolition
movement and constitutional litigation in capital cases? Is the death penalty here to stay?
Or will America soon see its last state-sanctioned execution?
See MASUR, supra note 1, at 52 (“In the 1780s most catalogues of books for sale in America included an
edition of Beccaria’s essay, and newspapers such as the New Haven Gazette and Connecticut Magazine
serialized Beccaria for their readers.”); M.H. Hoeflich, Translation & the Reception of Foreign Law in the
Antebellum United States, 50 A
M. J. COMP. L. 753, 768–71 (2002) (noting that Joseph Story owned a copy
of Beccaria’s book).
54
Two commentators, Samuel Gross and Phoebe Ellsworth, once quipped—albeit only half-jokingly—that
“the last new argument against the death penalty” may have been made by Cesare Beccaria in 1764. See
Timothy V. Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111
YALE L.J. 681, 685 (2001) (reviewing AUSTIN SARAT, WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND
THE
AMERICAN CONDITION (2001)).
55
Jefferson is reported to have read Beccaria in Italian. MERRILL PETERSON, THOMAS JEFFERSON AND THE
NEW NATION 124 (1970); see also MAESTRO, supra note 1, at 141 (“We find another proof of Beccaria’s
early popularity on the American continent in Thomas Jefferson’s Commonplace Book which contains
several extracts from Montesquieu in French, followed by no less than twenty-six extracts from Beccaria in
Italian, all long passages cited in Jefferson’s own handwriting. These extracts were written, according to
Gilbert Chinard who edited the Commonplace Book, between 1774 and 1776, when Jefferson became a
member of the Virginia Committee of Revisors for the reform of the legal system.”).
56
Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).
57
Baze v. Rees, 128 S. Ct. 1520 (2008).
58
Boumediene v. Bush, 128 S. Ct. 2229 (2008).
59
Baze, 128 S. Ct. at 1520.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
204
II. THE BREADTH OF BECCARIA’S INFLUENCE
A. European Penal Reform
¶15 On Crimes and Punishments, though not translated and distributed everywhere all
at once, shaped countless Enlightenment thinkers, including many advocates of prison
reform. In Europe, for example, Beccaria’s disciples included William Eden, who
authored Principles of Penal Law in 1771; Voltaire, who wrote a famous commentary on
Beccaria’s book that was then frequently reprinted with it; and Maximilien Robespierre,
who advocated for the death penalty’s abolition in France in 1791.
60
Beccaria’s writings
also greatly influenced John Howard, who vocally opposed capital and corporal
punishment,
61
as well as his fellow Englishman Jeremy Bentham.
62
¶16 Voltaire, especially, brought attention to On Crimes and Punishments. After
reading Beccaria’s book, Voltaire—a popular writer—called Beccaria “a brother” and “a
beneficent genius whose excellent book has educated Europe.”
63
Voltaire successfully
campaigned to exonerate a wrongfully condemned man in 1763, wrote on the subject of
60
SCHABAS, supra note 3, at 5; Simon Devereaux, Imposing the Royal Pardon: Execution, Transportation,
and Convict Resistance in London, 1789, 25 L
AW. & HIST. REV. 101, 123 & n.63 (2007) (citing Hugh
Dunthorne, “Beccaria and Britain,” in C
RIME, PROTEST AND POLICE IN MODERN BRITISH SOCIETY: ESSAYS
IN
MEMORY OF DAVID J. V. JONES (David W. Howell & Kenneth O. Morgan, eds. 1999) & Anthony J.
Draper, Cesare Beccaria’s Influence on English Discussions of Punishment, 1764-1789, 26 H
IST. OF
EUROPEAN IDEAS 177–99 (2000)).
61
United States v. Blake, 89 F. Supp. 2d 328, 343 (E.D.N.Y. 2000). In 1777, John Howard—a prison
reformer—published a detailed account of the terrible conditions of British prisons and called for changes
in the treatment of prisoners. J
OHN HOWARD, THE STATE OF THE PRISONS IN ENGLAND AND WALES (1777);
Randall McGowen, “The Well-Ordered Prison,” in T
HE OXFORD HISTORY OF THE PRISON 87 (1995); see
also Fisher, supra note 42, at 1236 (“Howard decried the filth of the prisons, the avarice of their keepers,
and the neglect of the magistrates who were charged with overseeing both. He made detailed
recommendations for the proper running of prisons.”). Howard, for example, thought day-and-night
solitary confinement too harsh. J
OHN HOWARD, AN ACCOUNT OF THE PRINCIPAL LAZARETTOS IN EUROPE
169 n.* (1789).
Early English prisons, which often kept prisoners in irons, were dirty, disease-infested and served
mainly to confine debtors and those awaiting trial or execution or, as was commonly the case,
transportation to American or Australian penal colonies. Devereaux, supra note 60, at 127–28; Fisher,
supra note 42, at 1239, 1267–68. And the situation was much the same in the United States, where the first
prisons were not built until the late eighteenth century. Compare L
AWRENCE FRIEDMAN, CRIME AND
PUNISHMENT IN AMERICAN HISTORY 78 (1994) (“In Connecticut, a prison was improvised in 1773 out of
certain copper mines at Simsbury. Called ‘Newgate’ after the English prison, it became the state prison of
Connecticut in 1790. This was, by all accounts, a horrendous dungeon, a dark cave of ‘horrid gloom.’”)
with Sara A. Rodriguez, The Impotence of Being Earnest: Status of the United Nations Standard Minimum
Rules for the Treatment of Prisoners in Europe and the United States, 33 N
EW ENG. J. ON CRIM. & CIV.
CONFINEMENT 61, 68 (2007) (“The first prison in the United States, the Walnut Street Jail in Philadelphia,
was built in 1787 and converted in 1790 to include a ‘penitentiary house.’ It featured a program advocated
by Quakers, who wanted to reform offenders ‘while also providing humane treatment.’”).
62
Bentham wrote that punishment is intended “to induce a man to choose always the least mischievous of
two offences.” J
EREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION
168 (J.H. Burns & H.L.A. Hart eds., 1970) (1789); see also J
EREMY BENTHAM, THE THEORY OF
LEGISLATION 201 (N. M. Tripathi Private Ltd. 1975) (1802) (“Where two offences are in conjunction, the
greater offence ought to be subjected to severer punishment, in order that the delinquent may have a motive
to stop at the lesser.”); J
AMES E. CRIMMINS, ON BENTHAM 51–57 (2004) (discussing Beccaria’s influence
on Bentham); H.L.A. Hart, Bentham and Beccaria, in E
SSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE
AND
POLITICAL THEORY 40 (1982) (discussing the relationship between Beccaria and Bentham).
63
MAESTRO, supra note 1, at 44–45.
Vol. 4:2] John D. Bessler
205
the death penalty and the need for criminal law reform, and had direct contact with
American Founding Fathers, including Benjamin Franklin and Dr. Benjamin Rush.
64
¶17 Across the English Channel, legal scholars were also intrigued by Beccaria’s
writings. Jeremy Bentham, the noted English philosopher and social reformer, began
reading On Crimes and Punishments around the time that he was admitted to the bar in
1769, and was so taken with the book that he wrote of Beccaria: “Oh, my master, first
evangelist of Reason . . . you who have made so many useful excursions into the path of
utility, what is there left for us to do?”
65
Bentham—who freely acknowledged Beccaria’s
influence—was a vocal critic of capital punishment, objecting to its “irremissibility.”
66
¶18 William Blackstone’s much-revered Commentaries on the Laws of England
67
also
explicitly referred to Beccaria.
68
Blackstone—the famed Oxford scholar whose writings
were frequently consulted by colonial lawyers—called the Italian thinker “an ingenious
writer, who seems to have well studied the springs of human action, that crimes are more
effectually prevented by the certainty, than by the severity, of punishment.”
69
Blackstone
himself criticized the infliction of harsh punishments,
70
saying that it is “absurd and
impolitic to apply the same punishment to crimes of different magnitude.”
71
Although he
64
Kastenberg, supra note 51, at 50–51, 58, 61–62; MAESTRO, supra note 1, at 18–19.
65
BECCARIA (Paolucci, trans.), supra note 42, at x–xi; Alice Ristroph, Proportionality as a Principle of
Limited Government, 55 D
UKE L.J. 263, 272 n.27 (2005).
66
JEREMY BENTHAM, THEORY OF LEGISLATION 353–54 (2d ed. 1874); Hugo Adam Bedau & Michael L.
Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 S
TAN. L. REV. 21, 22 (1987).
67
Blackstone became the Vinerian Chair at Oxford in 1758, and the first volume of his Commentaries on
the Laws of England—a huge success in the American colonies—was published in 1765. See Daniel R.
Coquillette, The Legal Education of a Patriot: Josiah Quincy Jr.’s Law Commonplace (1763), 39 A
RIZ. ST.
L.J. 317, 327–28 (2007).
68
State v. Wheeler, 175 P.3d 438, 443 (Or. 2007) (“Although Blackstone suggested that fine distinctions in
ranges of punishments may be difficult to make and are best left to legislative judgment, he set out a
number of principles, at least some of them inspired by his reading of Cesare Beccaria’s contemporary
treatise on criminal law and punishment, On Crimes and Punishments (1764; first English trans 1767).
Blackstone, following Beccaria, emphasized rationality in the imposition of punishments, rather than the
indiscriminate application of harsh punishments such as the death penalty. Punishment, in Blackstone’s
view (as influenced by Beccaria), should take into account the manifold complexities of aggravating and
extenuating circumstances, including a weighing of the effectiveness of a particular penalty in preventing
future crimes.”) (quoting 4 W
ILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 15–16
(1769)).
69
4 BLACKSTONE, supra note 68, at 17; see also Markus Dirk Dubber, “The Power to Govern Men and
Things”; Patriarchal Origins of the Police Power in American Law, 52 B
UFF. L. REV. 1277, 1310 (2004)
(“The Americans of the time clearly paid much attention to Cesare Beccaria’s Crimes and Punishments
(1764), as did everyone else interested in matters of criminal law, including Blackstone.”).
70
William Blackstone believed that a punishment “ought always to be proportioned to the particular
purpose it is meant to serve, and by no means exceed it.” 4 B
LACKSTONE, supra note 68, at 12.
71
4 BLACKSTONE, supra note 68, at 17–18. As Blackstone wrote: “A multitude of sanguinary laws
(besides the doubt that may be entertained concerning the right of making them) do likewise prove a
manifest defect either in the wisdom of the legislature, or the strength of executive power. It is a kind of
quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum
supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend
mankind: yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb,
which through ignorance or indolence he will not attempt to cure.” Id. Blackstone also wrote that
executions should be avoided where “the evil to be prevented is not adequate to the violence of the
preventative.” Id. at
10. According to Sir William Holdsworth, “it was Beccaria’s book which helped
Blackstone to crystallize his ideas, and it was Beccaria’s influence which helped to give a more critical tone
to his treatment of the English criminal law than to his treatment of any other part of English law.”
M
AESTRO, supra note 1, at 130.
The word “sanguinary”—a term commonly used during the founding era—has long been defined as
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
206
remained supportive of executions and corporal punishments (e.g., the cutting off of the
nose and ears),
72
Blackstone favored the death penalty in only limited circumstances.
73
Indeed, he recounted the “melancholy truth” that English law made approximately 160
different crimes punishable by death.
74
B. America’s Founding Period
¶19 Americans carefully read Beccaria’s writings, which profoundly shaped the
country’s founding era and the Bill of Rights—a fact not lost on scholars
75
and judges.
76
One commentator has called On Crimes and Punishments “more influential than any
other single book” in America’s revolutionary period,
77
and history shows that early
American jurists, as well as the Founders themselves, often turned to Beccaria for
guidance.
78
One study reveals that America’s Founders, in their writings and speeches,
“bloody,” “cruel,” or “murderous.” A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (1792); see also
State v. Newman, 140 N.W.2d 406, 412 (Neb. 1966) (defining “bloodthirstiness” as “[e]ager to shed blood,
cruel, sanguinary, murderous”). The New Hampshire, Pennsylvania and South Carolina constitutions all
called for less “sanguinary” punishments. See N.H.
CONST. of 1784, art. XVIII; S.C. CONST. of 1778, art. I,
§ 40 (1790); P
A. CONST. of 1776, § 38 (1790); accord Sterling v. Cupp, 625 P.2d 123, 128 (Or. 1981)
(“The Pennsylvania Constitution . . . provided that the penal laws were to be reformed and punishments
made less ‘sanguinary’ (i.e., bloody) by substituting imprisonment at hard labor.”).
72
See MAESTRO, supra note 1, at 130; Gerald Leonard, Towards a Legal History of American Criminal
Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 B
UFF. CRIM. L. REV. 691, 712
(2003).
73
As Blackstone wrote: “[T]he pains of death, and perpetual disability by exile, slavery, or imprisonment,
ought never to be inflicted, but when the offender appears incorrigible: which may be collected either from
a repetition of minuter offenses; or from the perpetration of some one crime of deep malignity, which of
itself demonstrates a disposition without hope or probability of amendment and in such cases it would be
cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating
perhaps the worst of villanies.” 4 B
LACKSTONE, supra note 68, at 12.
74
Id. at 18–19.
75
See IRVING BRANT, THE BILL OF RIGHTS: ITS ORIGIN AND MEANING 464 (1915) (“On Crimes and
Punishments helped shape our Fifth and Eighth Amendments.”); Deborah A. Schwartz & Jay Wishingrad,
The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v.
United States Excessive Punishment Doctrine, 24 BUFF. L. REV. 783, 813 (1975) (“There were three
American translations of Beccaria, each coupled with Voltaire’s Commentary, which were published in
America before the formulation of the Bill of Rights. They became immediately popular at both bookstores
and lending libraries.”) (citing M
ARY-MARGARET H. BARR, VOLTAIRE IN AMERICA 1774-1880, at 121
(1941)); id. at 829–30 (“Madison himself had been a member of the committee which drew up the Virginia
Declaration of Rights, so it is not surprising that he turned to the state provisions and particularly relied on
the amendments of Virginia and Massachusetts for content.”); id. at 830 (pointing out that Madison himself
noted “the impact of the Enlightenment and specifically Beccaria on the Virginia Revisal of the Laws, and,
in fact, had included the treatise of Beccaria in the list of recommended books which he had reported as
proper for the use of the Continental Congress”) (quoting 8 T
HE PAPERS OF JAMES MADISON 393 (W.
Hutchinson & W. Rachal eds., 1962) and B
RANT, supra, at 38–39).
76
See, e.g., Carmona v. Ward, 576 F.2d 405, 427 (2d Cir. 1978) (Oakes, J., dissenting) (noting that the
Framers were familiar with the writings of Beccaria and that James Madison was “a student of Beccaria
and had included Beccaria’s treatise in the list of recommended books for use by the Continental
Congress”).
77
ADOLPH CASO, WE THE PEOPLE: FORMATIVE DOCUMENTS OF AMERICA’S DEMOCRACY 239 (2001).
78
See People ex rel. Colorado Bar Ass’n v. Irwin, 152 P. 905, 908 (Colo. 1915) (citing a passage of
Blackstone referencing Beccaria); Eureka County Bank Habeas Corpus Cases, 126 P. 655, 661 (Nev. 1912)
(citing Beccaria); State v. Burlington Drug Co., 78 A. 882, 885 (Vt. 1911) (“While the [state constitutional]
provision suggests the immunities of the Great Charter, its language seems due rather to the influence of
Beccaria, whose treatise on Crimes and Punishments was translated into English in 1768, and was read
avidly by lawyers and jurists everywhere in the latter part of the eighteenth and the earlier part of the
nineteenth centuries. This is no fanciful conjecture, for in discussing the subject of penal laws Chipman
Vol. 4:2] John D. Bessler
207
invoked Beccaria so much that Beccaria ranks seventh overall in frequency of citation—
only St. Paul, Montesquieu, Sir William Blackstone, John Locke, David Hume, and
Plutarch rank higher.
79
¶20 Beccaria’s influence was felt particularly keenly—and quickly—in the American
colonies, a landscape already bursting at the seams with revolutionary ideas and
impulses. In 1770, the American patriot and lawyer John Adams famously defended the
British soldiers accused of murder in the Boston Massacre, and Adams showed close
familiarity with the reform-minded Italian criminologist. In taking on this unpopular
cause, Adams—though a death penalty supporter
80
—eloquently invoked Beccaria in his
opening statement on behalf of his clients:
acknowledges the influence of the Italian writer, quotes from his work, and says in precise terms: ‘The
world is more indebted to the Marquis Beccaria for this little Treatise on Crimes and Punishments than to
all other writers on the subject.’”); Ex parte Smith, 111 P. 930, 936 (Nev. 1910) (citing Beccaria); Ex parte
Davis, 110 P. 1131, 1134 (Nev. 1910) (same); Ex parte Rickey, 100 P. 134, 141 (Nev. 1909) (same);
People v. Lesser, 27 N.Y.S. 750 (N.Y. Sup. Ct. 1894) (same); Ex parte Deidesheimer, 14 Nev. 311, 1879
WL 3488, at *4 (1879) (same); State v. Deal, 64 N.C. 270, 1870 WL 1723, at *3 (1870) (same); Blair v.
Ridgely, 41 Mo. 63, 1867 WL 4732, at *7 (1867) (same); Gordon v. People, 33 N.Y. 501, 514 (1865)
(same); Cook v. Board of Chosen Freeholders of Middlesex County, 26 N.J.L. 326, 1857 WL 94, at *4
(N.J. Sup. 1857) (same); State v. Dunning, 9 Ind. 20, 1857 WL 3554, at *4 (1857) (same); Commonwealth
v. Anthes, 71 Mass. 185, 225 (1855) (same); Ezekiel v. Dixon, 3 Ga. 146, 1847 WL 1321, at *7 (1847)
(same); Commonwealth ex rel. Short v. Deacon, 1823 WL 2218, at *4 (Pa. 1823) (same); New York v.
Melvin, 2 Wheeler C.C. 262, Yates Sel. Cas. 112 (1810) (referencing a “saying of the Marquis Beccaria”
that “the judicial system of every country is two or three hundred years behind its progress in civilization”);
Cunningham v. Caldwell, 3 Ky. 123, 1807 WL 528, at *5 (1807) (citing Beccaria’s “celebrated work on
Crimes and Punishments”); State v. Hobbs & Return Strong, 1803 WL 184 (Vt. 1803) (quoting Beccaria at
length); Brinley v. Avery, 2 Kirby 22, 1786 WL 162, at *1 (Conn. 1786) (citing Beccaria).
79
Donald Lutz, a University of Houston political scientist, conducted the examination of the Founding
Fathers’ writings and speeches. The historical record also shows more than one-third of all libraries in the
period 1777–90 contained a copy of Beccaria’s now-famous essay, On Crimes and Punishments, and that
Beccaria accounted for about one percent of citations to published writers in the 1770s and three percent in
the 1780s. See Founding Father’s Library, The Forum at The Online Library of Liberty (a project of
Liberty Fund, Inc.),
http://oll.libertyfund.org/index.php?Itemid=259&id=438&option=com_content&task=view; Donald S.
Lutz, The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,
78 A
M. POL. SCI. REV. 189 (1984); see also DONALD LUTZ, A PREFACE TO AMERICAN POLITICAL THEORY
136, 138 (1992). The Founding Fathers cited the Bible more frequently than any other source. J
OHN
EIDSMOE, CHRISTIANITY AND THE CONSTITUTION: THE FAITH OF OUR FOUNDING FATHERS 51–52 (1987).
80
Adams thought the death penalty necessary in certain circumstances. See DAVID MCCULLOUGH, JOHN
ADAMS 540 (2001) (“Capital punishment was part of life. Nor was Adams opposed to it. As President, he
had signed death warrants for military deserters.”); Letter from John Adams to Colonel Hitchcock, Oct. 1,
1776 (“It is said, there was shameful Cowardice. If any Officer was guilty of it, I sincerely hope he will be
punished with death. This most infamous and detestable Crime, must never be forgiven in an Officer.”);
Letter from John Adams to Henry Knox, Sept. 29, 1776 (“I despize that Panick and those who have been
infected with it, and I could almost consent that the good old Roman fashion of decimation should be
introduced. The Legion, which ran away, had the name of every Man in it, put into a Box, and then drawn
out, and every tenth Man was put to death. The terror of this Uncertainty, whose Lot it would be to die,
restrained the whole in the time of danger from indulging their fears.”); A
UTOBIOGRAPHY OF JOHN ADAMS,
part 1, sheet 20 of 53, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society,
http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009) (discussing letters of his which were
intercepted by the British and later printed) (“The Expressions were Will your judiciary Whip and hang
without Scruple. This they construed to mean to excite Cruelty against the Tories, and get some of them
punished with Severity. Nothing was farther from my Thoughts. I had no reference to Tories in this. . . .
[M]y Question meant no more than ‘Will your judges have fortitude enough to inflict the severe
punishments when necessary as Death upon Murderers and other capital Criminals, and flaggellation upon
such as deserve it.’ Nothing could be more false and injurious to me, than the imputation of any sanguinary
Zeal against the Tories, for I can truly declare that through the whole Revolution and from that time to this
I never committed one Act of Severity against the Tories. On the contrary I was a constant Advocate for all
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
208
I am for the prisoners at the bar and shall apologize for it only in the words
of the Marquis Beccaria. “If by supporting the rights of mankind, and of
invincible truth, I shall contribute to save from the agonies of death one
unfortunate victim of tyranny, or ignorance, equally fatal, his blessings
and years of transport shall be sufficient consolation to me for the
contempt of all mankind.”
81
Indeed, John Adams was so taken by Beccaria that he had copied Beccaria’s words into
his diary.
82
After transcribing them, Adams put down his own thoughts, writing in his
diary: “The Sovereign Power is constituted, to defend Individuals against the Tyranny of
others. Crimes are acts of Tyranny of one or more on another or more. A Murderer, a
Thief, a Robber, a Burglar, is a Tyrant.”
83
His son, John Quincy Adams, who came to
oppose capital punishment,
84
would later remark on the “electric effect” Beccaria’s
words—as spoken by his father—had on jurors.
85
Though John Adams expressed no
moral qualms with the death penalty’s use, the writings of his wife, Abigail, reveal that
the Adams family certainly considered the possibility that America’s death penalty might
one day be abolished.
86
the Mercy and Indulgence consistent with our Safety.”).
81
United States v. Flemmi, 195 F. Supp.2d 243, 253 (D. Mass. 2001) (citing MCCULLOUGH, supra note 80,
at 65–68 and Marvin Wolfgang, Introduction to C
ESARE BECCARIA, OF CRIMES AND PUNISHMENTS ii
(Marsilo Publishers 1996)); see also Schwartz & Wishingrad, supra note 75, at 814 n.148 (“John Adams
made this statement in quoting from Beccaria’s treatise which had been translated into English and
published in London in 1770. On June 28, 1770, Adams copied a passage from Beccaria into his diary.”).
82
See DIARY OF JOHN ADAMS 15 (diary entry for June 28, 1770), Adams Family Papers: An Electronic
Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31,
2009); Schwartz & Wishingrad, supra note 75, at 814 n.148 (citing 1 D
IARY AND AUTOBIOGRAPHY OF
JOHN ADAMS 352–53 n.2 (Butterfield ed., 1961) (“This passage did in fact appear in the opening statement
of his October defense of Captain Preston, who was accused and later acquitted in the Boston Massacre
trial. Adams bought his own copy of Beccaria’s works in the Italian edition in Paris in 1780, and it is
among his books in the Boston Public Library.”)); see also Pauley, supra note 42, at 132 (“One of the
earliest translations of On Crimes and Punishments, a London 1775 edition, was in the library of John
Adams. As Adolph Caso tells us in America's Italian Founding Fathers, in that book ‘the Coat of Arms of
John Adams, stamped on the first page, bears the inscription in Latin: ‘Libertatem/ Amicitiam/ Retinebis/
Et Fidem,’ which may be translated, ‘You will retain liberty, friendship, and faith.’”). Sixteen years later,
Adams wrote in his diary, first in English then in the original Italian, another quotation from Beccaria:
“Every Act of Authority, of one Man over another for which there is not an absolute Necessity, is
tyrannical.” D
IARY OF JOHN ADAMS 44, (diary entry for July 20, 1786), Adams Family Papers: An
Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited
Aug. 31, 2009).
83
DIARY OF JOHN ADAMS, supra note 82, at 44; see also Geoffrey R. Stone, The World of the Framers: A
Christian Nation?, 56 UCLA
L. REV. 1, 16 (2008) (quoting John Adams’ “lifelong belief that all of history
had proved that the People, unrestrained, tend to be ‘unjust, tyrannical, brutal, barbarous, and cruel.’”).
84
See 1 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS, supra note 82, at 352, 353 n.2; 2 id. at 440, 442;
Nicholas Levi, Veil of Secrecy: Public Executions, Limitations on Reporting Capital Punishment, and the
Content-Based Nature of Private Execution Laws, 55 F
ED. COMM. L.J. 131, 137 (2002).
85
DIARY OF JOHN ADAMS, supra note 82, at 44.
86
See Letter from Abigail Adams to John Adams, 31 March 1797, Adams Family Papers: An Electronic
Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31,
2009) (“We are suffering under the same apprehensions which have afflicted other places. The attempts to
destroy Boston by fire are daily, or rather Nightly repeated. Patroles are constantly kept. They have
detected but few. The vile wretches have got into the Country. At Milton they keep a Nightly watch. It is
really a distressing calamity, but we shall be infested with more vagabonds, if the states go on to abolish
capital punishment.”). Her feelings on capital punishment can also be gleaned from another letter she sent
her husband. See Letter from Abigail Adams to John Adams, 12 January 1794, Adams Family Papers: An
Vol. 4:2] John D. Bessler
209
¶21 Another leading founder, James Wilson, also regularly referred to Beccaria’s
treatise in his own writings and law lectures.
87
Wilson—a Pennsylvania native who
opposed slavery, served as the College of Philadelphia’s first law professor and, in 1789,
became a member of the Supreme Court—was thoroughly enamored with Beccaria’s
ideas.
88
Wilson expressed reservations about capital punishment, calling the prior
English practice of not affording counsel to those accused of capital crimes
“unreasonable and severe.” He also argued that false confessions were sometimes given,
pointing out that one man had shown up alive after three people were hanged for his
supposed murder.
89
In another reflection of the changing times, Wilson’s son, a
Pennsylvania judge, would later resign his judgeship because of his opposition to capital
punishment.
90
¶22 Dr. Benjamin Rush—a friend of John Adams and an ardent death penalty foe—was
also an admirer of Beccaria’s work.
91
Dr. Rush invoked Beccaria’s name at a reading he
gave at the house of Benjamin Franklin—another Beccaria admirer—in March 1787.
92
“I
have said nothing upon the manner of inflicting death as a punishment for crimes,
because I consider it as an improper punishment for any crime,” Rush explained, going
on to cite the death penalty’s abolition in Tuscany.
93
A devout Christian, Rush often
Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited
Aug. 31, 2009) (“In France they have at length added the Murder of [the] unfortunate Queen to the measure
of their Inequality, Whilst Humanity sickens at the recital of their crimes, her death is less horrible than the
cruel imprisonment and indignities she has sustaind.”).
87
SCHABAS, supra note 3, at 5; see also Schwartz & Wishingrad, supra note 75, at 823 (noting that James
Wilson—famous for his law lectures—spoke at the College of Philadelphia on the “Necessity and
Proportion of Punishments” in which he discussed Beccaria’s views and that Robert J. Turnbull, in A Visit
to the Philadelphia Prison, published in 1796, discussed Pennsylvania’s experiment with penal reform and
stated that “[s]everal circumstances combined to make the proposed alteration expedient, and among others
the small and valuable gift of the immortal Beccaria to the world had its due influence”); Pauley, supra
note 42, at 131 (“It is not possible here to survey all of the ways in which Beccaria influenced continental
jurisprudence in the late eighteenth century.”); id. at 132 (“The influence of Beccaria's book on the
American founding fathers was also staggering. Within six years of the first English translation of 1767, a
reprint of that edition was issued in New York. In 1776, an edition including Voltaire's commentary
appeared in Philadelphia. In the next several years, other editions were published in different American
cities. This publication history is significant when one considers how long it took for other important
Enlightenment works of philosophy to be published in America—Rousseau's Confessions not until 1796
and Montesquieu's Spirit of the Laws not until 1802.”).
88
JAMES WILSON, Of the Nature of Crimes; and the Necessity and Proportion of Punishments, in 2
COLLECTED WORKS OF JAMES WILSON 240 (Kermit L. Hall & Mark David Hall eds., 2007) (“The theory of
criminal law has not, till lately, been a subject of much investigation. The Marquis of Beccaria led the
way.”); accord Robert Aitken, James Wilson: A Lost American Founder, 29 L
ITIGATION 61, 64–65 (2003).
89
WILSON, supra note 88, at 307.
90
Aitken, supra note 88, at 73.
91
For additional biographical information about this prominent Philadelphia physician, see CLAIRE G. FOX,
GORDON L. MILLER & JACQUELYN C. MILLER, COMP., BENJAMIN RUSH, M.D.: A BIBLIOGRAPHIC GUIDE
(1996); B
ENJAMIN RUSH, REVOLUTIONARY PHYSICIAN: AN INTERPRETATION OF RELIGION IN THE REPUBLIC
(1984); D
ONALD J. D’ELIA, BENJAMIN RUSH: PHILOSOPHER OF THE AMERICAN REVOLUTION (1974); DAVID
FREEMAN HAWKE, BENJAMIN RUSH: REVOLUTIONARY GADFLY (1971); CARL BINGER, REVOLUTIONARY
DOCTOR: BENJAMIN RUSH, 1746–1813 (1966); SARAH R. RIEDMAN & CLARENCE C. GREEN, BENJAMIN
RUSH, PHYSICIAN, PATRIOT, FOUNDING FATHER (1964).
92
See CHRISTOPHER HITCHENS, THOMAS JEFFERSON 39 (2005) (“Benjamin Franklin admired Beccaria
hugely.”); B
ENJAMIN RUSH, AN ENQUIRY INTO THE EFFECTS OF PUBLIC PUNISHMENTS UPON CRIMINALS,
AND
UPON SOCIETY 15 (Mar. 9, 1787).
93
Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
210
expressed his faith and his anti-death penalty views in his correspondence
94
and invoked
Beccaria in his writings more than once.
95
¶23 John Hancock—a signatory to the Declaration of Independence—and leaders such
as William Bradford
96
and Thomas Paine carefully read Beccaria’s writings, too.
97
A
former Pennsylvania Attorney General, Bradford penned An Enquiry How Far the
Punishment of Death Is Necessary in Pennsylvania in 1793 that echoed many of
Beccaria’s arguments.
98
He questioned the necessity of capital punishment and argued
for the elimination of it for all offenses except high treason and murder until more
information could be obtained. Paine, like Dr. Rush, was an ardent abolitionist. He
opposed Louis XVI’s execution,
99
regretted the French Assembly’s vote to impose a
death sentence,
100
as Thomas Jefferson did,
101
and ended up risking his own life in the
94
See 1, 2 BENJAMIN RUSH, LETTERS at 316, 416–17, 463, 479–82, 490–91, 496, 526–27, 570, 581, 584,
620–21, 628, 799, 874–75, 922–23, 1090–91, 1102, 1114, 1126 (L.H. Butterfield ed., 1951).
95
THE SELECTED WRITINGS OF BENJAMIN RUSH 41, 46, 97 (Dagobert D. Runes ed., 2007).
96
Matthew W. Meskell, The History of Prisons in the United States from 1777 to 1877, 51 STAN. L. REV.
839, 844 (1999) (“Spurred by Beccaria’s essay, William Bradford wrote a widely–circulated article entitled
An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania, With Notes and Illustrations
in 1793 in which he quoted with approval many of Beccaria’s arguments.”).
97
Oregon v. Hirsch, 114 P.3d 1104, 1132 (Or. 2005); see also KEALLY D. MCBRIDE, PUNISHMENT AND
POLITICAL ORDER 90 (2007) (noting that Thomas Paine was “well acquainted with the work On Crimes
and Punishments” and that “Cesare Beccaria’s work was mentioned in pamphlet after pamphlet about
criminal law in the new republic”). Thomas Paine’s Common Sense first appeared on January 9, 1776, and
spread with lightning speed throughout the American colonies. T
HE DECLARATION OF INDEPENDENCE AND
THE
CONSTITUTION OF THE UNITED STATES 4 (Pauline Maier ed., 1998) [hereinafter THE DECLARATION OF
INDEPENDENCE]. Paine also published Rights of Man, a guide to the Enlightenment, in 1791, and shortly
thereafter The Age of Reason. See R. B. Bernstein, Rediscovering Thomas Paine, 39 N.Y.L.
SCH. L. REV.
873, 887–89 (1994).
98
WILLIAM BRADFORD, AN ENQUIRY HOW FAR THE PUNISHMENT OF DEATH IS NECESSARY IN
PENNSYLVANIA (1793) (referring to Beccaria in the Introduction, the chapter “On Capital Punishments,”
and the “Conclusion”); see also Furman v. Georgia, 408 U.S. 238, 336 (1972) (Marshall, J., concurring).
99
On January 15, 1793, in France’s National Assembly, Paine invoked Robespierre’s call for the death
penalty’s abolition in asking that Louis XVI’s life be spared: “It has already been proposed to abolish the
punishment of death, and it is with infinite satisfaction that I recollect the humane and excellent oration
pronounced by Robespierre on that subject in the Constituent Assembly. This cause must find its advocates
in every corner where enlightened politicians and lovers of humanity exist, and it ought above all to find
them in this assembly. Monarchical governments have trained the human race, and inured it to the
sanguinary arts and refinements of punishment; and it is exactly the same punishment which has so long
shocked the sight and tormented the patience of the people, that now, in their turn, they practice in revenge
upon their oppressors. But it becomes us to be strictly on our guard against the abomination and perversity
of monarchical examples: as France has been the first of European nations to abolish royalty, let her also be
the first to abolish the punishment of death, and to find out a milder and more effectual substitute.”
T
HOMAS PAINE, Reasons for Preserving the Life of Louis Capet, in 3 THE WRITINGS OF THOMAS PAINE
123–24 (Moncure Daniel Conway ed., 1895).
100
SCHABAS, supra note 3, at 5 & n.31 (citations omitted). On January 19, 1793, Paine—an honorary
delegate because of his role in the American Revolution—regretted the National Assembly’s vote to
sentence Louis XVI to death, saying: “I voted against it from both moral motives and motives of public
policy.” P
AINE, Shall Louis XVI Have Respite?, supra note 99, at 127; Geoffrey Robertson, Ending
Impunity: How International Criminal Law Can Put Tyrants on Trial, 38 C
ORNELL INT’L L.J. 649, 652
(2005). In his speech that day, Paine was twice interrupted by Jean-Paul Marat, who said that Paine was
“incompetent to vote on this question” because Paine was a Quaker whose “religious principles” were
“opposed to capital punishment.” J
OHN KEANE, TOM PAINE: A POLITICAL LIFE 368 (2003). Yet Paine
persisted in his oration: “I know that the public mind of France, and particularly that of Paris, has been
heated and irritated by the dangers to which they have been exposed; but could we carry our thoughts into
the future, when the dangers are ended and the irritations forgotten, what to-day seems an act of justice may
then appear an act of vengeance. [Murmurs.] My anxiety for the cause of France has become for the
moment concern for her honor. If, on my return to America, I should employ myself on a history of the
Vol. 4:2] John D. Bessler
211
process.
102
In 1793, in a speech before a joint session of the legislature, Massachusetts
governor John Hancock also asked legislators to follow Beccaria’s call for less discretion
in sentencing.
103
¶24 Thomas Jefferson was especially fascinated by Beccaria’s ideas.
104
Between 1774
and 1776, Thomas Jefferson—the drafter of the Declaration of Independence
105
and the
French Revolution, I had rather record a thousand errors on the side of mercy, than be obliged to tell one
act of severe justice. . . . France has but one ally—the United States of America. That is the only nation
that can furnish France with naval provisions, for the kingdoms of northern Europe are, or soon will be, at
war with her. It unfortunately happens that the person now under discussion is considered by the
Americans as having been the friend of their revolution. His execution will be an affliction to them, and it
is in your power not to wound the feelings of your ally. Could I speak the French language I would
descend to your bar, and in their name become your petitioner to respite the execution of the sentence on
Louis.” P
AINE, supra note 99, at 125, 127 (italics in original).
101
Thomas Jefferson felt conflicted and remorseful over the execution of the French king and queen, seeing
death as unnecessary. In a draft autobiography written in 1821, Jefferson laid out his feelings: “The deed
which closed the mortal course of these sovereigns, I shall neither approve nor condemn. I am not prepared
to say that the first magistrate of a nation cannot commit treason against his country, or is unamenable to
it's punishment: nor yet that where there is no written law, no regulated tribunal, there is not a law in our
hearts, and a power in our hands, given for righteous employment in maintaining right, and redressing
wrong. Of those who judged the king, many thought him wilfully criminal, many that his existence would
keep the nation in perpetual conflict with the horde of kings, who would war against a regeneration which
might come home to themselves, and that it were better that one should die than all. I should not have
voted with this portion of the legislature. I should have shut up the Queen in a Convent, putting harm out
of her power, and placed the king in his station, investing him with limited powers, which I verily believe
he would have honestly exercised, according to the measure of his understanding.” Thomas Jefferson,
Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow “List all Collections”
hyperlink; then follow “Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink; then search “autobiography”
in “Search Collection”; then follow “Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment,
January 6 through July 27”) (last visited Aug. 31, 2009).
102
Thomas Paine would suffer the consequences for his idealism. See John P. Frank, Book Review, 61
Y
ALE L.J. 1227, 1229 (1952) (reviewing HOWARD SWIGGETT, THE EXTRAORDINARY MR. MORRIS (1952)).
After being arrested and imprisoned in France in 1793, Paine only narrowly avoided execution through a
stroke of luck. A guard walked through the French prison where Paine was held, putting chalk marks on
the cell doors of condemned prisoners, but Paine’s door was open at the time and when it was closed the
mark on it was hidden from view; Paine—released from prison shortly thereafter—was thus fortuitously
saved from the executioner. T
HOMAS CLIO RICKMAN, THE LIFE AND WRITINGS OF THOMAS PAINE 261–62
(1908); Bernstein, supra note 97, at 889. Ironically, Robespierre—who failed to convince the National
Assembly to do away with executions, then later changed his position, calling for the execution of Louis
XVI and overseeing France’s Reign of Terror—would later be guillotined. M
AESTRO, supra note 1, at
153–54; S
CHABAS, supra note 3, at 5; Paul Rosenzweig, Targeting Terrorists: The Counterrevolution, 34
W
M. MITCHELL L. REV. 5083, 5084 (2008).
103
See Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early
Massachusetts, 80 M
ICH. L. REV. 1179, 1200–01 (1982) (“In a speech before a joint session of the
legislature in 1793, Governor Hancock called on the representatives to abandon this system and impose
Beccaria’s method, but the House failed to comply.”); id. at 1201 n.106 (quoting Hancock as saying, “I
recommend these ideas to your wise deliberations, that such punishments may be provided as, if
administered with certainty and inflexibility, may be sufficient to check the progress of crime.”); id. at 1198
(“Beccaria’s stand against capital punishment won many adherents in post-Revolutionary Massachusetts.”)
(citations omitted).
104
See Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45
E
MORY L.J. 1139, 1215 (1996) (citing THE COMMONPLACE BOOK OF THOMAS JEFFERSON 314 (G. Chinard
ed., 1926) (quoting C
ESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENTS 87–88 (1764))); Pauley,
supra note 42, at 131; Schwartz & Wishingrad, supra note 75, at 817.
105
THE DECLARATION OF INDEPENDENCE, supra note 97, at 7–17. It was John Adams who suggested that
Thomas Jefferson take the lead role in drafting the Declaration of Independence. J. Harvie Wilkinson, III,
Building a Legal Culture of Affection, 99 N
W. U. L. REV. 1235, 1243 (2005). Building upon George
Mason’s work with Virginia’s constitution, Jefferson took up his pen and built into the Declaration of
Independence a natural rights framework, stating that “all men are created equal” and “are endowed by
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
212
future U.S. president—actually copied twenty-six different passages from Beccaria’s text
into his Commonplace Book by hand.
106
Jefferson drafted three proposals for Virginia’s
constitution that would have curtailed the death penalty’s use,
107
and the Declaration of
Independence famously recites the “inalienable” right to life.
108
While Jefferson was part
of a committee that expanded the death penalty’s availability in wartime,
109
he also
became a member of the Virginia Committee of Revisors for legal reform, drafting a bill
for Virginia’s legislature specifically calling for proportionate punishments.
110
¶25 Jefferson’s bill, plainly inspired by Beccaria’s treatise, called for “a corresponding
gradation of punishments” in relation to the seriousness of the offense.
111
Though the
their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of
Happiness.” Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution: When the Law Sits Too
Tight, 42 D
RAKE L. REV. 593, 604 (1993).
106
Schwartz & Wishingrad, supra note 75, at 817; see also MAESTRO, supra note 1, at 141 (“Criminal law
was Jefferson’s field and at the end of 1778 he had already completed his ‘Bill for Proportioning Crimes
and Punishments in Cases heretofore Capital.’ This bill was copiously annotated, and Beccaria’s name
appears four times in the footnotes, which refer to several passages of his famous treatise. Not until 1785
was the bill introduced in the House of the Virginia Commonwealth; it was rejected then, but it was later
approved when presented again in 1796.”).
107
Jefferson’s drafts proposed that the state’s General Assembly “have no power to pass any law inflicting
death for any crime, excepting murder, and those offenses in the military service for which they shall think
punishment by death absolutely necessary; and all capital punishments in other cases are hereby abolished.”
M
AESTRO, supra note 1, at 141 (citing Thomas Jefferson, Third Draft of the Virginia Constitution (1776),
reprinted in 1 T
HE PAPERS OF THOMAS JEFFERSON 359 (Julian P. Boyd ed., 1950)). Jefferson also proposed
language to forbid the General Assembly from prescribing “torture in any case whatever.” 2
THE WORKS
OF
THOMAS JEFFERSON 169 (Paul Leicester Ford ed., 1904). Jefferson’s drafts, however, failed to pass.
See Alexander Tsesis, Undermining Inalienable Rights: From Dred Scott to the Rehnquist Court, 39 A
RIZ.
ST. L.J. 1179, 1188 (2007).
108
Jefferson’s draft of the Declaration of Independence had originally recognized “inherent and inalienable
rights.” That language morphed into “inherent & unalienable rights,” which later became “certain
unalienable rights.” T
HE DECLARATION OF INDEPENDENCE, supra note 97, at 8, 11, 13. The terms
“inalienable” and “unalienable” are used interchangeably in multiple state constitutions with no apparent
difference in meaning between the two terms. See David B. Kopel, Paul Gallant & Joanne D. Eisen, The
Human Right of Self-Defense, 22 BYU
J. PUB. L. 43, 102 n.314 & 129 n.444 (2007); Daniel Avila, Assisted
Suicide and the Inalienable Right to Life, 16 I
SSUES L. & MED. 111, 112 n.4 & 113 n.6 (2000); Brett W.
King, Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules, 2 U.
PA. J. CONST. L. 609, 630 n.104 (2000).
109
Jefferson, who saw executions as warranted during war, helped to revise the Articles of War in 1776,
expanding the number of death-eligible offenses in them. John F. O’Connor, Don’t Know Much About
History: The Constitution, Historical Practice, and the Death Penalty Jurisdiction of Courts-Martial, 52 U.
MIAMI L. REV. 177 (1997) (“The 1776 Code, drafted by a committee comprised of John Adams, Thomas
Jefferson, John Rutledge, James Wilson, and R.R. Livingston, greatly enlarged the class of capital crimes
cognizable under military law. Where the 1775 Articles had limited the death penalty to three purely
military offenses, the 1776 Articles permitted capital punishment for sixteen different crimes.”). At the
same time, however, many early American leaders, such as George Washington, were revolted by senseless
wartime cruelty and adopted a policy to treat prisoners of war humanely. D
AVID HACKETT FISCHER,
WASHINGTON’S CROSSING 378 (2004).
110
Schwartz & Wishingrad, supra note 75, at 817; Jupiter, supra note 9, at 476 n.191. Jefferson’s bill for
proportionate punishments—as one scholar puts it—“called for punishment based on the theory of
prevention outlined by Cesare Beccaria and developed by Jeremy Bentham.” Markus D. Dubber, The
American Model Penal Code: A Brief Overview, 10 N
EW CRIM. L. REV. 319, 321 (2007) (citing Markus D.
Dubber, An Extraordinarily Beautiful Document: Jefferson’s Bill for Proportioning Crimes and
Punishments and the Challenge of Republican Punishment, in M
ODERN HISTORIES OF CRIME AND
PUNISHMENT (Markus D. Dubber & Lindsay Farmer eds., 2007)).
111
2 THE WORKS OF THOMAS JEFFERSON, supra note 107, at 394. Jefferson himself—in a letter he wrote in
August 1776—called for “strict and inflexible punishments,” but ones that were “proportioned to the
crime,” “proportioned to the offense.” Letter from Thomas Jefferson to Edmund Pendleton, Aug. 26, 1776,
in 1 THE PAPERS OF THOMAS JEFFERSON 505 (J. Boyd ed., 1950); see also id. at 490 (reprinting the letter
Vol. 4:2] John D. Bessler
213
legislation called for the death penalty for treason and murder
112
and contained
draconian
113
and controversial provisions,
114
it was still quite progressive for the age.
115
The bill ultimately failed to pass by a single vote,
116
but it undeniably marked an attempt
from Edmund Pendleton to Jefferson that Jefferson was responding to, with Pendleton’s letter referencing
Jefferson’s efforts at “reformation as to our criminal system of laws,” stating that the criminal law “has
hitherto been too Sanguinary, punishing too many crimes with death, I confess, and could wish to see that
change for some other mode of Punishment in most cases,” but warning Jefferson not to go too far, saying,
“if you mean to relax all punishments and rely on virtue and the public good as sufficient to prompt
obedience to laws, you must find a new race of men to be the subjects of it”).
112
Davison M. Douglas, God and the Executioner: The Influence of Western Religion on the Death
Penalty, 9 W
M. & MARY BILL RTS. J. 137, 157 (2000) (“Thomas Jefferson . . . drawing heavily on
Beccaria’s penal theories, proposed the abolition of all capital crimes except murder and treason in Virginia
in 1779.”).
113
The proposed code called for mandatory death sentences for treason and murder, death by poison for
those who killed by poisoning, the hanging and gibbeting of any challenger who killed someone in a duel,
castration for male rapists and men committing sodomy, and for acts of maiming similar disfigurement. If
an offender lacked the body part to be maimed or disfigured, the bill provided that “some other part of at
least equal value and estimation, in the opinion of a jury,” was to be taken. See M
AESTRO, supra note 1, at
142; Daniel D. Blinka, Jefferson and Juries: The Problem of Law, Reason, and Politics in the New
Republic, 47 A
M. J. LEGAL HIST. 35, 89–91 (2005); 2 THE WORKS OF THOMAS JEFFERSON, supra note 107,
at 396–98, 402–04. In essence, Jefferson’s proposed code followed “the Roman lex talionis, the law of the
claw, and the Mosaic law, an ‘eye for an eye and a tooth for a tooth,’ as he put it.” W
ILLARD STERNE
RANDALL, THOMAS JEFFERSON: A LIFE 299 (Harper Perrenial 1994). Indeed, Jefferson later conceded that
in drafting the bill he “thought it material not to vary the diction of the antient statutes by modernizing it,
nor to give rise to new questions by new expressions.” See Thomas Jefferson, Autobiography Draft
Fragment, Jan. 6-July 27, 1821, Feb. 6 Entry, http://memory.loc.gov/ (follow “List all Collections”
hyperlink; then follow “Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink; then search “autobiography”
in “Search Collection”; then follow “Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment,
January 6 through July 27”) (last visited Aug. 31, 2009). The speed with which executions were to be
carried out under the bill certainly showed that Jefferson believed in swift punishments, another concept
articulated by Beccaria in On Crimes and Punishments. See B
ECCARIA (Thomas ed.), supra note 1, at 39,
86. Jefferson’s bill provided that executions were to be carried out almost immediately—literally within
hours or days of sentencing—for those convicted of treason or murder. 2 T
HE WORKS OF THOMAS
JEFFERSON, supra note 107, at 401–02.
114
Not only did Jefferson’s bill call for castration for males committing sodomy or rape, but under his bill,
a female committing rape or a homosexual act was to be punished “by boring through the cartilage of her
nose a hole of one half inch in diameter at the least.” 2 T
HE WORKS OF THOMAS JEFFERSON, supra note
107, at 403; Elvia Rosales Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Discrete
and Insular Minority, 14 W
OMEN’S RTS. L. REP. 263, 288 n.243 (1992); see also JEFF BROADWATER,
GEORGE MASON, FORGOTTEN FOUNDER 278 (2006) (“Bill No. 64 . . . set the penalties for homosexual acts:
‘If a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch
diameter at the least.’ Because the penalty at common law had been death, this was considered progress.”).
After his rape provision came under criticism in Europe, Jefferson recanted his support for it. See
R
ANDALL, supra note 113, at 299; accord Christopher Bopst, Rape Shield Laws and Prior False
Accusations of Rape: The Need for Meaningful Legislative Reform, 24 J.
LEGIS. 125, 126 n.7 (1998)
(quoting 9 T
HOMAS JEFFERSON, PAPERS OF THOMAS JEFFERSON (Julian P. Boyd ed., 1950) (letter to James
Madison)).
115
Jefferson’s bill proclaimed that a citizen “committing an inferior injury does not wholly forfeit the
protection of his fellow citizens, but after suffering punishment in proportion to his offense, is entitled to
their protection from all greater pain.” R
ANDALL, supra note 113, at 298. In limiting the death penalty to
treason and murder, Jefferson had thus categorically rejected the imposition of capital punishment for the
more than one hundred felonies that carried the possibility of death in England’s criminal code. Id. at 300.
Jefferson, in the very first section of the bill, specifically noted that “cruel and sanguinary laws defeat their
own purpose.” 2
THE WORKS OF THOMAS JEFFERSON, supra note 107, at 395.
116
See BANNER, supra note 1, at 96. Although the committee Jefferson chaired to revise Virginia’s laws
met in early 1777, it was not until late 1778 that a busy Jefferson had the bill drafted. The bill was
submitted by the Committee of Revisors in 1779, but was tabled, and it was not until 1785 that the bill was
actually introduced in the Virginia legislature. By then, Jefferson was serving as America’s ambassador in
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
214
by Jefferson to drastically scale back the availability of death sentences. In a draft
autobiography, written in the twilight of his life, Jefferson would reflect on the bill’s
narrow defeat even as he rejected the doctrine of lex talionis
117
and credited Beccaria’s
book for being the catalyst for his anti-death penalty stance.
118
As Jefferson wrote:
“Beccaria and other writers on crimes and punishments had satisfied the reasonable world
of the unrightfulness and inefficacy of the punishment of crimes by death.”
119
Noting
that “hard labor on roads, canals and other public works, had been suggested as a proper
substitute,” Jefferson pointed out that “[t]he Revisors had adopted these opinions; but the
general idea of our country had not yet advanced to that point.”
120
¶26 Only many years after it was first introduced did Jefferson’s bill for proportionate
punishments gain passage in Virginia. In 1821 Jefferson explained, again in his draft
autobiography, that after his bill failed, “the public opinion was ripening, by time, by
reflection, and by the example of Pennsylvania.” Jefferson specifically noted that “[i]n
1796 our legislature resumed the subject, and passed the law for amending the penal laws
of the Commonwealth.”
121
By then, Jefferson had already shown his distaste for the
Paris, so it fell to James Madison to present the bill in Jefferson’s absence. Id. at 95–96; Nancy J. King,
The Origins of Felony Jury Sentencing in the United States, 78 C
HI.-KENT L. REV. 937, 952 (2003).
Madison—who believed Virginia’s revisors “were unfortunately misled into some of the specious errors of
Beccaria, then in the zenith of his fame”—wrote after the bill’s defeat that the bill’s fate was sealed by
“[t]he rage against Horse stealers.” Letter from James Madison to Thomas Jefferson, Feb. 15, 1787, in 11
T
HE PAPERS OF THOMAS JEFFERSON 152 (J. Boyd ed. 1950); Letter from James Madison to Thomas S.
Grimke, Jan. 15, 1828, in 9 T
HE WRITINGS OF JAMES MADISON: 1808-1819 (Gaillard Hunt ed., 1900). For
his part, Jefferson later expressed gratitude to “the unwearied exertions of Mr. Madison” in wrestling with
the legislature “in opposition to the endless quibbles, chicaneries, perversions, vexations and delays of
lawyers and demilawyers.” Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U.
PA. L. REV.
959, 977 (1965).
117
The ancient doctrine of “lex talionis”—an eye for an eye, a tooth for a tooth—demanded an equivalency
between the punishment and the offense. “Talio” is Latin for “equivalent to” or “equal.” Carmona v.
Ward, 576 F.2d 405, 426 & n. 8 (2d Cir. 1978). In his draft autobiography, Jefferson explicitly rejected the
lex talionis doctrine and recorded his own recollections of the lost legislative battle: “On the subject of the
Criminal law, all were agreed that the punishment of death should be abolished, except for treason and
murder; and that, for other felonies should be substituted hard labor in the public works, and in some cases,
the lex talionis. How this last revolting principle came to obtain our approbation, I do not remember.” See
Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow
“List all Collections” hyperlink; then follow “Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink; then
search “autobiography” in “Search Collection”; then follow “Thomas Jefferson, July 27, 1821,
Autobiography Draft Fragment, January 6 through July 27”) (last visited Aug. 31, 2009).
118
Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow
“List all Collections” hyperlink; then follow “Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink; then
search “autobiography” in “Search Collection”; then follow “Thomas Jefferson, July 27, 1821,
Autobiography Draft Fragment, January 6 through July 27”) (last visited Aug. 31, 2009).
119
Id.
120
Id. Apparently, Virginians found unsatisfactory the following provision in the bill targeted at horse
thieves: “Whosoever shall be guilty of horse-stealing, shall be condemned to hard labour three years in the
public works, and shall make reparation to the person injured.” 2
THE WORKS OF THOMAS JEFFERSON,
supra note 107, at 408.
121
1 THE WRITINGS OF THOMAS JEFFERSON 67 (1903); Thomas Jefferson, Autobiography Draft Fragment,
Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow “List all Collections” hyperlink; then follow
“Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink; then search “autobiography” in “Search Collection”;
then follow “Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27”)
(last visited Aug. 31, 2009). Jefferson also emphasized that the bill passed with modifications, including
eliminating “public labor” in favor of “solitary” punishments. Id. Thus, the bill Jefferson drafted—perhaps
too progressive for the citizenry Edmund Pendleton had cautioned Jefferson about in 1776 in the midst of
the American Revolution—would become law many years after its initial defeat. R
ANDALL, supra note
113, at 300.
Vol. 4:2] John D. Bessler
215
death penalty, including in his private correspondence. In 1816, Jefferson penned a letter
to William Wirt, the author of a biography of Patrick Henry. In that letter, Jefferson said,
with obvious satisfaction, that Virginia “justly prides itself on having gone thro’ the
revolution without a single example of capital punishment connected with that.”
122
¶27 Thomas Jefferson also revealed his genuine affection for Beccaria’s book in
another piece of correspondence. As president, Jefferson, an avid book collector and one
of the most well-read men of his time, would write a telling letter in 1807 recommending
that its recipient, one John Norvell, read “Beccaria on crimes & punishments”—one of
only a handful of books Jefferson recommended on the principles of government.
Jefferson did so, he said, “because of the demonstrative manner” in which Beccaria “has
treated that branch of the subject.”
123
By singling out On Crimes and Punishments,
Jefferson made especially clear that he treasured Beccaria’s treatise, which had
condemned the use of both torture and state-sanctioned executions.
III. THE HISTORY OF THE ABOLITION MOVEMENT
A. Executions and Barbaric Punishments Through the Ages
Murders and retaliatory killings to avenge murders have taken place throughout
human history.
124
“Its precise origins,” Justice Thurgood Marshall wrote of the death
penalty, “are difficult to perceive, but there is some evidence that its roots lie in violent
retaliation by members of a tribe or group, or by the tribe or group itself, against persons
committing hostile acts toward group members.”
125
Capital punishment, another
commentator posits, originated as a way to “placate the gods,” and evolved later as a way
to punish individuals—with many types of offenders executed in many different ways
122
10 THE WRITINGS OF THOMAS JEFFERSON, 1816-1826, at 58–63 (Paul Leicester Ford, ed., 1899).
Among Enlightenment figures, Jefferson was certainly not alone in rejecting death sentences. Jefferson’s
friend and correspondent, Marquis de Lafayette—a general in the American Revolutionary War who served
in the Continental Army under George Washington, and the man Jefferson assisted in drafting the French
Declaration of the Rights of Man and of the Citizen—also opposed executions. See Marcello Maestro,
Lafayette as a Reformer of Penal Laws, 39 J.
OF HIST. OF IDEAS 503, 503 (1978); James Thuo Gathii,
Commerce, Conquest, and Wartime Confiscation, 31 B
ROOK. J. INT’L L. 709, 718 n.46 (2006); Roger P.
Alford, In Search of a Theory for Constitutional Comparativism, 52 UCLA
L. REV. 639, 656 (2005). “I
shall ask for the abolition of the punishment of death,” Lafayette famously said, “until I have the
infallibility of human judgment demonstrated to me.” Michael A. Cokley, Whatever Happened to that Old
Saying “Thou Shall Not Kill?”: A Plea for the Abolition of the Death Penalty, 2 L
OY. J. PUB. INT. L. 67
(2001) (citing G
ARDNER C. HANKS, AGAINST THE DEATH PENALTY: CHRISTIAN AND SECULAR ARGUMENTS
AGAINST CAPITAL PUNISHMENT 63 (1997)); accord VOICES AGAINST DEATH: AMERICAN OPPOSITION TO
CAPITAL PUNISHMENT 1787-1975, 98 (Philip English Mackey ed., 1976) (indicating Lafayette uttered those
words on August 17, 1830).
Lafayette’s words against the death penalty are actually sometimes mistakenly attributed to Jefferson.
See District Attorney for Suffolk Dist. v. Watson, 411 N.E.2d 1274, 1287 & n.16 (Mass. 1980) (attributing
Lafayette’s quote to Thomas Jefferson; quoted by Senator Hart, A Bill to Abolish the Death Penalty Under
All Laws of the United States: Hearings on S. 1760 Before the Subcomm. on Criminal Laws and
Procedures of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. 14 (1968)).
123
Letter from Thomas Jefferson to John Norvell dated June 11, 1807. When Jefferson sold his prized
collection of books to reconstitute the Library of Congress after British troops burned down the U.S.
Capitol in 1814, Jefferson had amassed 6487 books, with titles in multiple languages. J
OHN D. BESSLER,
WRITING FOR LIFE: THE CRAFT OF WRITING FOR EVERYDAY LIVING 170 (2007).
124
Furman, 408 U.S. at 333 (Marshall, J., concurring) (“Capital punishment has been used to penalize
various forms of conduct by members of society since the beginnings of civilization.”).
125
Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
216
over the centuries.
126
As that commentator writes: “In the time of Moses in the Bible, the
death penalty was inflicted for crimes ranging from murder to gathering sticks on the
Sabbath. In ancient Greece, Socrates, convicted of corrupting the youth with his
teachings, was executed by being forced to drink hemlock.”
127
¶28 Every culture has seen executions in one form or another. Early Native American
communities allowed families of murder victims to kill the perpetrators,
128
and the
Babylonian Code of Hammurabi, circa 1750 B.C., punished over twenty offenses with
death, including perjury, adultery, theft, harboring runaway slaves, and even faulty home
construction.
129
Over the centuries, in fact, death sentences have been handed out for all
sorts of transgressions—from serious offenses, to vices, to nearly everything else.
Tobacco users and those who cursed or sold bad beer, for example, faced execution.
130
In
India, the death penalty was inflicted for killing a cow or spreading false rumors.
131
Executions could be terrifically brutal as well. Asian offenders were skinned alive or tied
to stakes, smeared with honey, and left for wild animals to eat, while Persian offenders
were crucified, trampled by elephants, smothered with hot ashes or heavy stones, or
buried alive.
132
The Pharaohs embalmed criminals alive for giving false testimony,
133
and mass drownings took place during the French Revolution.
134
¶29 In England, America’s mother country, an eighteenth-century “Bloody Code” made
nearly every felony a capital crime.
135
Death sentences could be imposed in England for
everything from treason and murder to disturbing a fish-pond, killing or maiming cattle,
126
Gregg Mayer, The Poet and Death: Literary Reflections on Capital Punishment Through the Sonnets of
William Wordsworth, 21 S
T. JOHN’S J. LEGAL COMMENT. 727, 728 n.8 (2007).
127
Id.
128
JOHN D. BESSLER, LEGACY OF VIOLENCE: LYNCH MOBS AND EXECUTIONS IN MINNESOTA 2 (2003)
[hereinafter B
ESSLER, LEGACY OF VIOLENCE]. In modern times, a few American states—in what might be
thought of as part of society’s long-standing and deep-seated desire for revenge—have actually allowed
murder victims’ families to hire and pay private attorneys to prosecute murder defendants in capital cases.
John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 A
RK. L. REV.
511, 513 & n.9 (1994).
129
Michael P. Scharf & Ahran Kang, Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can
Learn from the ICTY, ICTR, and SCSL, 38 C
ORNELL INT’L L.J. 911, 915 (2005); HAMMURABI’S CODE OF
LAWS (L.W. King trans.), http://eawc.evansville.edu/anthology/hammurabi.htm (last visited Aug. 31, 2009)
(containing an English translation of the Code of Hammurabi).
130
See James G. Hodge, Jr. & Gabriel B. Eber, Tobacco Control Legislation: Tools for Public Health
Improvement, 32 J.L.
MED. & ETHICS 516, 516 (2004); Rudolph J. Gerber, Death Is Not Worth It, 28 ARIZ.
ST. L.J. 335, 336 (1996).
131
Gerber, supra note 130, at 336.
132
Id.
133
Id.
134
Id.
135
Fisher, supra note 42, at 1238; Hirsch, supra note 103, at 1296 n.90; HARRY POTTER, HANGING IN
JUDGMENT: RELIGION AND THE DEATH PENALTY IN ENGLAND FROM THE BLOODY CODE TO ABOLITION
(1993). Although fifty capital crimes existed in England as of 1688, that number rose to over 200 in the
next century. Millett, supra note 34, at 553. By 1791, the year the Eighth Amendment came into force,
more than 200 crimes were punishable by death in England. See Harmelin v. Michigan, 501 U.S. 957, 975
(1991). Americans, by contrast, chose to inflict the death penalty for far few crimes. The relative
infrequency of executions in America actually prompted the French political writer, Alexis de Tocqueville,
to say this in 1840: “[I]n no other country is criminal justice administered with more mildness than in the
United States. While the English seem disposed carefully to retain their bloody traces of the Middle Ages
in their penal legislation, the Americans have almost expunged capital punishment from their codes.”
Robert J. Cottrol, Finality with Ambivalence: The American Death Penalty’s Uneasy History, 56 S
TAN. L.
REV. 1641, 1654 (2004) (reviewing BANNER, supra note 1) (citing ALEXIS DE TOCQUEVILLE, 2
DEMOCRACY IN AMERICA 176 (1945)).
Vol. 4:2] John D. Bessler
217
shooting a rabbit, setting a cornfield on fire or cutting down trees.
136
English subjects
were hanged, burned, boiled, disemboweled, or drawn and quartered—with human
bodies violently torn apart, limb-by-limb, by horses.
137
The dead bodies of the
condemned were sometimes publicly dissected, desecrated, or gibbeted.
138
¶30 Early and medieval civilizations used torture, and acts of torture were once
common in Europe.
139
The Greeks and the Romans, for example, systematically tortured
people, with the Romans applying red hot metals and hooks to tear skin and routinely
using the rack—a wooden frame mounted on rails that caused the victim’s joints and
muscles to become painfully distended.
140
Other medieval European forms of torture
included leg-screws, thumbscrews, water torture, the binding of wrists with cords, the
lighting of a flammable substance on the soles of the accused’s feet, beatings with fists,
hangings of individuals by their feet, and sleep deprivation for as long as forty hours.
141
As one commentator has written: “Until the mid-eighteenth century, torture was widely
used and accepted throughout Europe, in a variety of contexts, including the procurement
of testimony and confessions from criminal defendants.”
142
136
ARTHUR W. CAMPBELL, LAW OF SENTENCING § 1.2 (3d ed. 2004); E.P. THOMPSON, WHIGS AND
HUNTERS: THE ORIGIN OF THE BLACK ACT 22 (1975). At one time in America, Asia and Europe, capital
punishment was even used against animals. Pigs and dogs and a host of other animals were arrested,
assigned defense counsel, put on trial and then, upon conviction, ceremoniously executed, often in public.
See Jen Girgen, The Historical and Contemporary Prosecution and Punishment of Animals, 9 A
NIMAL L.
97, 98–115, 122–27 (2003); E
DWARD P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT
OF
ANIMALS (Faber & Faber 1987) (1906) (describing the execution of animals); Paul Schiff Berman, Rats,
Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and
Inanimate Objects, 69 N.Y.U.
L. REV. 288 (1994) (describing the trials of animals).
137
GEORGE RYLEY SCOTT, THE HISTORY OF CAPITAL PUNISHMENT 155–57 (1950); Shannon D. Gilreath,
Cruel and Unusual Punishment and the Eighth Amendment as a Mandate for Human Dignity: Another
Look at Original Intent, 25 T.
JEFFERSON L. REV. 559, 565–66 (2003); Jessica Powley Hayden, The Ties
that Bind: The Constitution, Structural Restraints, and Government Action Overseas, 96 G
EO. L.J. 237, 251
(2007); see also J
OHN LAURENCE, A HISTORY OF CAPITAL PUNISHMENT 28–69, 220–30 (1950) (describing
methods of execution).
138
BESSLER, DEATH IN THE DARK, supra note 31, at 33 (“Not only were murderers in England publicly
hanged, but they were often sentenced to be publicly dissected in Surgeons’ Hall, where spectators crowded
the galleries. In other instances, the executed criminal’s body was ordered to be hung in chains near the
crime scene as a warning to others.”). Gibbeting involved hanging the condemned’s body in an iron cage
so that it would decompose in public view. Baze v. Rees, 128 S. Ct. 1520, 1557 (2008) (Thomas, J.,
concurring).
139
For instance, the penalty for parricide—the murder of one’s parents or children—was “scourging the
parricide, and then sewing him up in a leathern sack, with a live dog, a cock, a viper, and an ape, and
casting him into the sea.” State v. Bilansky, 3 Minn. 246, 1859 WL 3085, at *3 (1859). John Adams
actually discussed a variation on this form of punishment in 1779 while in Spain: “There was lately a
Sentence for Parricide. The Law required that the Criminal should be headed up in a hogshead, with an
Adder, a Toad, a Dog and a Cat and cast into the Sea. But I was much pleased to hear that Spanish
humanity had suggested and Spanish Ingenuity invented a Device to avoid some part of the Cruelty and
horror of this punishment. They had painted those Animals on the Cask, and the dead body was put into it,
without any living Animals to attend it to its watery Grave.” J
OHN ADAMS AUTOBIOGRAPHY, PART 3,
"PEACE," 1779-1780, sheet 6 of 18 [electronic edition], Adams Family Papers: An Electronic Archive,
Massachusetts Historical Society, http://www.masshist.org/digitaladams/aea/cfm/doc.cfm?id=A3_6/ (last
visited Aug. 31, 2009).
140
See Lippman, supra note 17, at 275, 277.
141
Id. at 281, 291–92, 305–06. Other forms of torture that have been used over time include rape and other
forms of sexual abuse, wall-standing, deprivation of food and water, hooding, subjection to loud noises,
attacks by dogs, burning with cigarettes, gouging out of eyes, placing pins under finger- and toenails, and
the infliction of electric shocks to sensitive areas of the body, including sexual organs.
142
See Stephanie J. Spencer, A and Others v. Secretary: The Use of Torture Evidence Against Criminal
Defendants, 21 T
EMP. INT’L & COMP. L.J. 205, 206 (2007); see also Joachim Herrmann, Implementing the
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
218
¶31 This was as true for England and its colonial empire as it was in continental
Europe. In England, those escaping death—either through royal pardon or “benefit of
clergy”
143
—could have their genitals or tongues cut off or be whipped or branded on the
forehead or thumb.
144
The American colonies, which borrowed England’s harsh criminal
codes, were no exception; corporal punishments such as branding, flogging, forced labor,
maiming and whipping, particularly of slaves, were inflicted frequently.
145
These types
of punishments—in addition to gags, stocks, the scarlet letter, and the ducking stool—
were designed to cause pain and to publicly humiliate offenders.
146
Many methods of
torture, such as waterboarding or placing heavy stones on someone’s chest, would lead to
death—something that can, and does, still occur when these forms of torture are
employed.
147
¶32 Executions in colonial days and early America were public affairs, and the occasion
for sermons and considerable pomp and circumstance as the condemned prisoners were
taken to the gallows.
148
Mandatory death sentences were meted out for violent offenses,
such as murder and rape, but also for less serious crimes.
149
The Massachusetts Bay
Prohibition of Torture on Three Levels: The United Nations, the Council of Europe, and Germany, 31
H
ASTINGS INT’L & COMP. L. REV. 437, 438 (2008) (“Fundamental criticism of torture came with the
Enlightenment and the Natural Law philosophy, a human rights oriented philosophy, in the 17th and 18th
century.”).
143
The doctrine of “benefit of clergy” saved clerics from execution, but it evolved to spare condemned
prisoners who could read scriptures. Eventually, “benefit of clergy” was extended to persons convicted of
capital crimes for the first time, though the doctrine was eventually abolished by statute. Alex Ricciardulli,
Getting to the Roots of Judges’ Opposition to Drug Treatment Initiatives, 25 WHITTIER L. REV. 309, 396
(2003); Fisher, supra note 42, at 1239 n.15. People were branded on the thumb so they could not again
claim “benefit of clergy.” Id. at 1239. Thomas Jefferson described the doctrine this way in commenting on
a European manuscript: “This privilege originally allowed to the clergy, is now extended to every man, &
even to women. It is a right of exemption from capital punishment for the first offence in most cases. It is
then a pardon by the law. In other cases the Executive gives the pardon. But when laws are made as mild
as they should be, both those pardons are absurd. The principle of Beccaria is sound. Let the legislators be
merciful but the executors of the law inexorable.” Observations on the Article États-Unis Prepared for the
Encyclopédie 1, in 5
THE WORKS OF THOMAS JEFFERSON 169 (Paul Leicester Ford ed., 1904-05).
144
Hayden, supra note 137, at 251; Fisher, supra note 42, at 1238–39, 1266 n.151. In colonial New York,
a “P”—for perjurer—was branded on the criminal’s forehead. Alexandra Bak-Boychuk, Liar Laws: How
MPC § 241.3 and State Unsworn Falsification Statutes Fix the Flaws in the False Statements Act (18
U.S.C. § 1001), 78 TEMP. L. REV. 453, 468 (2005); Alan I. Bigel, Justices William J. Brennan, Jr. and
Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and
Interpretation by the Court, 8 N
OTRE DAME J.L. ETHICS & PUB. POL’Y 11, 35 & n.130 (1994) (where under
a 1786 North Carolina law, horse thieves subject to pillory, whipping, branding, and having their ears cut
off, with execution available for a second offense).
145
E.g., JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE
BETWEEN AMERICA AND EUROPE 175 (2003); see also Gilreath, supra note 137, at 565–66 (noting that
Indians and slaves were sometimes burned to death). Flogging was not declared unconstitutional until the
late 1960s. See Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).
146
Meskell, supra note 96, at 841–42.
147
See Aaron R. Jackson, The White House Counsel Torture Memo: The Final Product of a Flawed System,
42 C
AL. W. L. REV. 149, 150 (2005); Laurence A. Benner, Requiem for Miranda: The Rehnquist Court’s
Voluntariness Doctrine in Historical Perspective, 67 W
ASH. U. L.Q. 59, 71 & n.47 (1998); Dawn E.
Johnson, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA
L. REV.
1559, 1571 (2007); see also Stephen C. Sieberson, Foreword, 41 C
REIGHTON L. REV. 575, 576 (2008)
(noting that in July 2006, President Bush issued an executive order authorizing “enhanced interrogation
techniques,” including waterboarding). Waterboarding originated with the Spanish Inquisition and was
also systematically used by the Khmer Rouge. Daniel Kanstroom, On “Waterboarding”: Legal
Interpretation and the Continuing Struggle for Human Rights, 28 B.C.
THIRD WORLD L.J. 269, 271 (2008).
148
BANNER, supra note 1, at 10–15; BESSLER, DEATH IN THE DARK, supra note 31, at 25–28.
149
THE DEATH PENALTY IN AMERICA: CURRENT CONTROVERSIES 4 (Hugu Adam Bedau ed., 1997);
Vol. 4:2] John D. Bessler
219
Colony’s “Capitall Lawes of New-England,” from 1636, listed these capital crimes:
idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery,
adultery, statutory rape, rape, manstealing, perjury in a capital case, and rebellion.
150
The
codification of each crime was accompanied in the statute by an Old Testament verse as
authority,
151
and judges used such draconian laws, most memorably in Salem,
Massachusetts, in sentencing those convicted of heresy and witchcraft.
152
¶33 As in Europe, offenders in the American colonies were hanged, disemboweled, or
drawn and quartered,
153
and many offenses were punishable by death. In an era rife with
superstition—American executions have frequently taken place on Fridays
154
—
executions of many different types of offenders took place. Thomas Graunger, a
teenager, was convicted in the Plymouth Colony in 1642 of committing “buggery” with
“a mare, a cowe, two goates” and “a turkey.” George Spencer was executed in New
Haven in the seventeenth century for bestiality based on a recanted confession and
because both he and a piglet were found to have a deformed eye.
155
And in
Massachusetts, four Quakers were executed in the seventeenth century for returning to
the colony after being banished, while in 1643 James Britton and Mary Latham were
hanged there for adultery.
156
¶34 As history shows, state-sanctioned executions have been used for centuries to
punish criminals, political dissidents, and social outcasts, mostly men.
157
In England,
public executions were carried out at Tyburn, on Tower Hill, or in front of Newgate
prison. Some fifty thousand people were publicly hanged at Tyburn, though on rare
occasions, royal figures were hanged privately within the Tower of London.
158
Offenders
Douglas, supra note 112, at 156; Kastenberg, supra note 51, at 63.
150
Millett, supra note 34, at 585; Furman v. Georgia, 408 U.S. 238, 335 (1972) (Marshall, J., concurring).
A 1611 compilation of laws for the Jamestown Colony also provided: “He that upon pretended malice,
shall murther or take away the life of any man, shall bee punished with death.” Guyora Binder, The
Origins of American Felony Murder Rules, 57 STAN. L. REV. 59, 109 (2004).
151
Millett, supra note 34, at 585; Furman, 408 U.S. at 335 (Marshall, J., concurring).
152
See Douglas, supra note 112, at 155 & n.93.
153
Cottrol, supra note 135, at 1654.
154
Anthony V. Baker, Slavery and Tushnet and Mann, Oh Why? Finding “Big Law” in Small Places, 26
Q
UINNIPIAC L. REV. 691, 700 n.39 (2008).
155
Kastenberg, supra note 51, at 63; Massachusetts Sex Ways: Puritan Ideas of Flesh and the Spirit,
http://www.austincc.edu/jdikes/1301readings/Sex%20Ways%20ALL.pdf.
156
BANNER, supra note 1, at 6. As Thomas Jefferson pointed out in an autobiographical sketch, prejudice
against Quakers also occurred in Virginia. See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-
July 27, 1821, available at http://avalon.law.yale.edu/19th_century/jeffauto.asp (“Towards Quakers who
came here they were most cruelly intolerant, driving them from the colony by the severest penalties.”).
157
See, e.g., Dr. Kam C. Wong, A Comparative Study of Laws of Assembly in China: Historical Continuity
or Political Departure, 7 A
SIAN-PAC. L. & POL’Y J. 184 (2006) (noting that 90,000 political dissidents were
arrested in China between 1949 and 1955 and that half of them were executed). The execution of women is
rare. See Victor L. Streib, Rare and Inconsistent: The Death Penalty for Women, 33 F
ORDHAM URB. L.J.
609 (2006); Elizabeth Rapaport, Equality of the Damned: The Execution of Women on the Cusp of the 21st
Century, 26 O
HIO N.U. L. REV. 581 (2000); Elizabeth Rapaport, The Death Penalty and Gender
Discrimination, 25 L.
& SOC’Y REV. 367 (1991); Elizabeth Rapaport, Some Questions About Gender and
the Death Penalty, 20 G
OLDEN GATE U. L. REV. 501 (1990); Victor L. Streib, Death Penalty for Female
Offenders, 58 U.
CIN. L. REV. 845 (1990). In my home state, the State of Minnesota, where many people
were executed before the death penalty’s abolition in 1911, only one woman, Ann Bilansky, was ever
executed. B
ESSLER, LEGACY OF VIOLENCE, supra note 128, at 67–92 (discussing the case of Ann
Bilansky).
158
BESSLER, DEATH IN THE DARK, supra note 31, at 33; accord V.A.C. GATRELL, THE HANGING TREE:
EXECUTION AND THE ENGLISH PEOPLE 1770-1868 (1994); PETER LINEBAUGH, THE LONDON HANGED:
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
220
were frequently put to death—sometimes even burned at the stake
159
—not necessarily
because of the seriousness of the offense, but because prisons were not then thought of as
places to house unsavory criminals for long periods of time.
160
¶35 These ritualistic killings, however, were destined to be removed from the public
eye. As morals and sensibilities changed in the Victorian Era and people grew more and
more uncomfortable with executions, these macabre spectacles were moved into prisons
or behind walled enclosures adjoining courthouses, jails, or prisons.
161
Public executions
in England came to an abrupt end in 1868 with the passage of national legislation, though
public executions in America took much longer to disappear from the scene. Private
execution laws were first enacted in the northeastern part of the United States in the
1830s, with the last American public execution—of a black man, Rainey Bethea, before a
jeering crowd of 10,000 to 20,000 spectators—taking place in Kentucky in 1936.
162
B. Cesare Beccaria and the Abolition Movement
¶36 A few early Christians opposed executions,
163
but Cesare Beccaria is widely
credited as the first Enlightenment thinker to call for the death penalty’s abolition.
164
Born in Milan in 1738, Beccaria—a Roman Catholic and a voracious reader of
philosophy
165
—attended a Jesuit school in Parma before attending the University of
Pavia from 1754 to 1758.
166
After graduating with a degree in law, he first joined one
CRIME AND CIVIL SOCIETY IN THE EIGHTEENTH CENTURY (1992); LEON RADZINOWICZ, A HISTORY OF
ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750 (1948); see also Steven Wilf, Imagining
Justice: Aesthetics and Public Executions in Late Eighteenth-Century England, 5 Y
ALE J.L. & HUMAN. 51
(1993-94).
159
MAESTRO, supra note 1, at 4; D. BRUCE HINDMARSH, THE EVANGELICAL CONVERSION NARRATIVE:
SPIRITUAL AUTOBIOGRAPHY IN EARLY MODERN ENGLAND 31 (2008).
160
Hirsch, supra note 103, at 1180.
161
BESSLER, DEATH IN THE DARK, supra note 31, at 40–80.
162
Id. at 31–33, 40–41.
163
Douglas, supra note 112, at 146 (“During the first three centuries of the Christian era, the question of the
death penalty was quite real for Christians as they were frequent victims of Roman executions. . . . A few
early Christian writers did . . . address the issue of the death penalty. Most argued that killing was contrary
to Christian ethics and that Christians must play no role in executions, although they conceded that the state
did have the right to impose the death penalty.”); id. at 147 (“Writing in the fourth century, John
Chrysostom opposed the use of the death penalty to control heresy.”); id. at 148 (“Pope Gregory I (590-
604) commented that ‘[s]ince I fear God, I shrink from having anything whatsoever to do with the death of
anyone.’ Pope Nicholas I in the ninth century recommended abolishing the death penalty: ‘You should
save from death not only the innocent but also criminals, because Christ has saved you from the death of
the soul.’”); id. at 150 (“[S]ome Christians during the Middle Ages opposed the death penalty.”).
164
Beccaria is also credited with founding the modern field of criminology and as being an early opponent
of torture. See B
ECCARIA (Thomas trans.), supra note 1, at xvi; Rachel A. Van Cleave, Rape and the
Querela in Italy: False Protection of Victim Agency, 13 M
ICH. J. GENDER & L. 273, 280 (2007); BECCARIA
(Paolucci trans.), supra note 42, at ix; see also LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW
207 (3d ed. 2005) (“The late eighteenth century . . . was a period in which intellectuals began to rethink the
premises on which criminal law rested. Great reformers—men like Cesare Beccaria, whose Treatise on
Crime and Punishment was written in Italy in 1764—suggested that at least some of the premises were
wrong and argued for a more enlightened criminal law.”).
165
MAESTRO, supra note 1, at 5–6, 9. Beccaria read Montesquieu’s Persian Letters, Rousseau’s The Social
Contract, and the books of many other writers from France, England and Scotland. B
ECCARIA (Thomas
ed.), supra note 1, at xxi. For additional biographical information about Beccaria, see MARCELLO T.
MAESTRO, VOLTAIRE AND BECCARIA AS REFORMERS OF CRIMINAL LAW (1972); COLEMAN PHILLIPSON,
THREE CRIMINAL LAW REFORMERS: BECCARIA, BENTHAM, ROMILLY (1970).
166
BECCARIA (Thomas trans.), supra note 1, at xvi–xvii, xl–xli.
Vol. 4:2] John D. Bessler
221
social academy, the Accademia dei Trasformati (Academy of the Transformed), run by a
wealthy count, then another, the Accademia dei Pugni (Academy of Fists), one of the
many European salons and literary and reading societies of the 1700s.
167
¶37 Formed by Beccaria’s friend, Pietro Verri, the Academy of Fists held reformist
views that did not find favor elsewhere.
168
The small group, which included Pietro’s
brother Alessandro and other men, mostly in their twenties, dedicated itself to
contributing to the public good.
169
In particular, they sought to win over the Austrian
rulers of Lombardy to a program of reform.
170
Though the group was short-lived, the
ideas Beccaria produced as a result of his association with the Academy of Fists still
endure, continuing to shape the world’s death penalty debate.
¶38 The members of the Academy of Fists wrote on an array of topics, ranging from
political and economic theories to literary and scientific matters.
171
Every ten days the
group published a periodical, Il Caffé, the inaugural edition
172
of which was aimed at
accomplishing “what good we can for our country” through the distribution of “useful
knowledge.”
173
Beccaria’s own writings were diverse. After falling in love with the
daughter of an army colonel, Beccaria published his first pamphlet, a study of currency
problems in Milan, in 1762.
174
In all, Beccaria wrote seven articles for Il Caffé on topics
ranging from the trivial and whimsical—the statistical probabilities of winning a card
167
Id. at xvii; MAESTRO, supra note 1, at 6, 8–9. The latter society, which operated from 1762 to 1766, is
also translated as the Academy of Fisticuffs. It got its name from the pugilistic debates of its members.
B
ECCARIA (Young trans.), supra note 1, at x.
168
BECCARIA (Thomas trans.), supra note 1, at xvii–xviii. Count Pietro Verri was the man who suggested
that Beccaria take up the subject of crime and punishment. Id. at xxii–xxiii. He was also the person
Beccaria relied upon to help him edit On Crimes and Punishments and to work with the publisher in
Livorno. Id. at xxii. From the start, Pietro Verri was very impressed by Beccaria, writing in a letter in
April 1762: “Among the gifted young men who are forming a distinguished company at my home I will
name a certain Marquis Beccaria, of good family . . . whose vivid imagination together with his careful
study of the human heart make of him an exceptionally remarkable man.” M
AESTRO, supra note 1, at 9–
10.
169
BECCARIA (Young trans.), supra note 1, at xviii; MAESTRO, supra note 1, at 9. Alessandro Verri worked
as a prison inspector and thus was able to share valuable insights with Beccaria as Beccaria worked on his
book. B
ECCARIA (Thomas trans.), supra note 1, at xxii–xxiii; see also MAESTRO, supra note 1, at 12.
170
BECCARIA (Young trans.), supra note 1, at x; see also id. (“The Habsburgs had held Lombardy since
1707, but did not begin the process of reform until the end of the War of the Austrian Succession in 1748.
The initial impetus in Lombardy, as elsewhere, was the need to improve the administration of finances and
the economy in order to reduce the massive deficit created by the cost of war.”).
171
BECCARIA (Thomas ed.), supra note 1, at xix, xxxvii.
172
The inaugural edition—its name inspired by coffeehouse conversations—appeared in June 1764 around
the same time that On Crimes and Punishments was published. B
ECCARIA (Young trans.), supra note 1, at
xix; M
AESTRO, supra note 1, at 46. Beccaria started working on his book in March 1763, and the first
edition of On Crimes and Punishments, published anonymously, began circulating in July 1764, first in
Tuscany and then in Lombardy. B
ECCARIA (Thomas trans.), supra note 1, at xxii–xxiii.
173
BECCARIA (Thomas trans.), supra note 1, at xix.
174
Id. at xviii; see MAESTRO, supra note 1, at 6. Beccaria’s father did not approve of the sixteen-year-old
Teresa Blasco, the object of Beccaria’s affection. This prompted Beccaria—who would ultimately marry
his chosen bride against his father’s wishes—to take up his pen and write a letter to his father in a futile
attempt to gain his father’s blessing. “Please be assured that only death can destroy my resolution, and the
idea of death doesn’t frighten me,” the strong-willed Beccaria wrote to his father, adding: “I swear before
God that I will not change my decision. I ask you in the name of Jesus Christ to stop putting obstacles to
this marriage and to stop doing violence to my will and my conscience.” It took quite some time after the
marriage took place—and the advice and intervention of his friend, Count Pietro Verri—before Beccaria
and his father would reconcile. Id. at 6–8.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
222
game and an “Essay on Odors”—to the literary—a “Fragment on Style”—to the
serious—an essay on smuggling.
175
¶39 One product of the Academy of Fists was the publication of Beccaria’s landmark
treatise, Dei delitti e delle pene, at first published anonymously due to fear of persecution
and ecclesiastical censorship.
176
“While writing my book,” Beccaria later told his French
translator, “I had before my eyes the examples of Galileo, Machiavelli, and Giannone,”
all of whom faced dire consequences for their views.
177
In his book, Beccaria dealt with
his subject in a comprehensive and philosophical manner, advocating trials by jury
178
and
condemning torture and execution as antiquated practices.
179
¶40 In the section “On Torture,” Beccaria wrote about a “strange consequence” of
torture: “[T]he innocent individual is placed in a worse condition than the guilty; for if
both are tortured, every outcome is stacked against him, because either he confesses to a
crime and is convicted or he is declared innocent and has suffered an undeserved
punishment.”
180
Beccaria saw torture as “a cruelty,” believing only the guilty should be
punished, and he worried considerably about false confessions.
181
Beccaria wrote: “[T]he
impression of pain may increase to such a degree that, filling the entire sensory capacity,
it leaves the torture victim no liberty but to choose the shortest route to relieve his pain
momentarily.”
182
“Under these circumstances,” Beccaria concluded, “the statements
made by the accused are as inevitable as the impressions made by fire and water.”
183
175
MAESTRO, supra note 1, at 47–50.
176
BECCARIA (Thomas trans.), supra note 1, at xxii–xxiii, 166 n.36; MAESTRO, supra note 1, at 20; Special
Collections Focus: New Acquisitions, L
EGAL MISCELLANEA (Jacob Burns L. Libr., Washington D.C.)
Autumn 2004, at 1–2, available at
http://www.law.gwu.edu/Library/Friends/Documents/Legal_Miscellanea/FriendsNwsltr_F04.pdf;
B
ECCARIA (Paolucci, trans.), supra note 42, at xiv. The author’s anonymity was short-lived. MAESTRO,
supra note 1, at 20. Once Milan authorities expressed no animosity toward the book’s author, and in fact
welcomed the treatise, Beccaria’s identity was revealed. B
ECCARIA (Paolucci, trans.), supra note 42, at xiv.
Initially, rumors circulated that the elder Pietro Verri wrote On Crimes and Punishments. These rumors
were fueled by the fact that Verri had, in 1763, published another book, Meditations on Happiness, with the
same publisher. But to his credit, Verri quickly denied authorship and came to Beccaria’s defense. “I
suggested the topic to him,” Verri acknowledged, but admitted that the book itself “is by the Marquis
Beccaria.” B
ECCARIA (Young trans.), supra note 1, at xiv; BECCARIA (Thomas trans.), supra note 1, at
xxii-xxiii; B
ECCARIA (Paolucci trans.), supra note 42, at xiii.
177
BECCARIA (Thomas trans.), supra note 1, at xxv–xxvi. Beccaria told his French translator that, having
“heard the clanging chains of superstition and the howls of fanaticism suffocating the faint moans of truth,”
he felt “compelled to be obscure and to envelop the light of truth in a pious mist” because he “wanted to be
a defender of humanity without being its martyr.” Id. at xxvi.
178
BECCARIA (Thomas trans.), supra note 1, at 30 (“The law whereby each man should be judged by his
peers is a very useful one, for when a citizen’s liberty or wealth are at stake, those sentiments that
inequality inspires should fall silent.”).
179
Id. at 32–37.
180
Id. at 36.
181
Id. at 32–37.
182
Id. at 34.
183
Id. Many of America’s Founding Fathers shared Beccaria’s concerns. Writing in 1729, Benjamin
Franklin railed against innocent men being “dragg’d into noisome Dungeons, tortured with cruel Irons, and
even unmercifully starv’d to Death.” 1 J.A.
LEO LEMAY, THE LIFE OF BENJAMIN FRANKLIN: JOURNALIST,
1706-1730, at 427–28 (2006). In Notes on Virginia, Thomas Jefferson also wrote: “With the Roman, the
regular method of taking the evidence of their slaves was under torture. Here it has been thought better
never to resort to their evidence. When a master was murdered, all his slaves, in the same house, or within
hearing, were condemned to death. Here punishment falls on the guilty only, and as precise proof is
required against him as against a freeman.”
THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON
241 (Adrienne Koch & William Peden eds., 1998).
Vol. 4:2] John D. Bessler
223
¶41 In the section “On the Death Penalty,” Beccaria wrote, “[t]his futile excess of
punishments, which have never made men better, has impelled me to consider whether
the death penalty is really useful and just in a well-organized state.”
184
“The death
penalty,” Beccaria argued, “is not useful because of the example of cruelty that it gives to
men.”
185
“If one were to raise the objection that in almost all ages and almost all nations
the death penalty has been prescribed for some crimes,” Beccaria continued, “I would
reply that this objection amounts to nothing in the face of the truth—against which there
is no legal remedy—and that the history of mankind gives us the impression of a vast sea
of errors, in which a few confused truths float about with large and distant gaps between
them.”
186
¶42 Beccaria believed violent crimes should be punished severely.
187
But he also
believed that “the purpose of punishment is neither to torment and afflict a sentient being,
nor to undo a crime already committed.”
188
For Beccaria, “perpetual penal servitude”—
or life imprisonment, in today’s parlance—was the best, and most just, way to deter
others.
189
Echoing Montesquieu, Beccaria emphasized that “every act of authority of one
man over another that does not derive from absolute necessity is tyrannical.”
190
“For a
punishment to be just,” Beccaria wrote, “it must have only that degree of intensity that
suffices to deter men from crime.”
191
184
BECCARIA (Thomas trans.), supra note 1, at 51.
185
Id. at 55.
186
Id. at 56–57. If monarchs left “the ancient laws in place,” Beccaria said, “it is because of the infinite
difficulty in stripping the venerated rust of many centuries from so many errors.” Id. at 57.
187
See id. at 21 (“[T]he violation of the right to security acquired by each citizen must be assigned some of
the most severe punishments provided for by the law”); see also id. at 22 (“Attacks against the security and
liberty of the citizens are thus among the greatest crimes.”).
188
BECCARIA (Thomas trans.), supra note 1, at 26. “The purpose of punishment,” Beccaria added, “is none
other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing
the same.” Id. “Therefore,” Beccaria emphasized, “punishments and the method of inflicting them must be
chosen such that, in keeping with proportionality, they will make the most efficacious and lasting
impression on the minds of men with the least torment to the body of the condemned.” Id.
189
Id. at 52. Beccaria expressed his preference for life imprisonment over capital punishment stating: “To
those who would say that permanent penal servitude is as painful as death, and therefore, equally cruel, I
shall reply that, adding up all of the unhappy moments of slavery, it may very well be even more so, but
these moments are drawn out over an entire lifetime, while death exerts the whole of its force in a single
moment. And this is the advantage of penal servitude, which frightens those who witness it more than
those who suffer it, for the former consider the entire sum of unhappy moments, while the latter are
distracted from future unhappiness by the unhappiness of the present moment.” Id. at 54.
190
BECCARIA (Thomas trans.), supra note 1, at 11. In his book, Beccaria paid considerable homage to
Montesquieu, calling him a “great” and “immortal” man. Id. at 10–11. “As the great Montesquieu says,”
Beccaria wrote, “every punishment that does not derive from absolute necessity is tyrannical.” Id. at 11.
Beccaria parted ways with Montesquieu on the death penalty, however, as Montesquieu’s The Spirit of the
Laws allowed executions for homicide and even theft. Id. at xlvi.
191
Id. at 54. On that point, Beccaria explained: “Now, there is no one who, upon reflection, would choose
the total and permanent loss of his own liberty, no matter how advantageous a crime might be: therefore,
the intensity of perpetual penal servitude, substituted for the death penalty, has all that is necessary to deter
even the most determined mind. Indeed, I would say that it has even more: a great many men look upon
death with a calm and steady gaze, some out of fanaticism, some out of vanity (which almost always
accompanies man beyond the grave), and some out of a final and desperate attempt either to live no longer
or to escape from poverty. But neither fanaticism nor vanity survives in fetters or chains, under the cudgel
and the yoke, or in an iron cage; and the desperate man finds that his woes are just beginning rather than
ending.” Id. at 53–54; see also id. at 19 (“If the same punishment is prescribed for two crimes and injure
society in different degrees, then men will face no stronger deterrent from committing the greater crime if
they find it in their advantage to do so.”).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
224
¶43 Beccaria emphasized perpetual imprisonment as a viable alternative to executions.
“It is not the terrible but fleeting spectacle of a criminal’s death that is the most powerful
brake on crimes,” he reasoned, “but the long and arduous example of a man deprived of
his liberty, who, having become a beast of burden, repays the society he has offended
through his toils.”
192
“It is not the intensity of the punishment that has the greatest effect
on the human mind,” Beccaria wrote, “but its extension, for our sensibility is more easily
and firmly affected by small but repeated impressions than by a strong but fleeting
action.”
193
Seeing executions as both ineffective and counterproductive, Beccaria
observed: “With the death penalty, every example given to the nation requires a crime;
with permanent penal servitude, a single crime provides many and lasting examples.”
194
¶44 Beccaria thought a criminal’s death justifiable only in times of anarchy to protect
national security, or if the death penalty could be shown to deter others from committing
crimes.
195
“The death of a citizen,” Beccaria wrote, “cannot be deemed necessary, except
on two grounds.”
196
“The first,” he opined, “is when he retains such connections and
such power that he endangers the security of the nation even when deprived of his liberty,
that is, when his very existence can provoke a dangerous revolution in the established
form of government.”
197
In that extremely limited circumstance, Beccaria felt, the
citizen’s death “becomes necessary when a nation is recovering or losing its liberty, or in
time of anarchy, when disorder itself takes the place of laws.”
198
The “second reason for
believing that the death penalty could be just and necessary,” Beccaria wrote, was
deterrence, though Beccaria emphasized that “centuries of experience” had taught that
“the ultimate punishment has never deterred men determined to harm society.”
199
¶45 Beccaria would repeat these views—and add one more, the irrevocability of capital
punishment—in a government report he co-authored in 1792.
200
The report, written by
Beccaria, Francesco Gallarati Scotti, and Paolo Risi, articulated the minority position of a
committee charged with drafting a new penal code for Austrian Lombardy.
201
The
minority report favored “perpetual enslavement” and “forced labour” for the most serious
192
Id. at 53.
193
Id. at 52–53.
194
Id. at 54.
195
Id. at 52.
196
Id.
197
Id. For Beccaria, a government’s stability or instability was of great importance in considering what the
punishment should be. Id. at 85.
198
Id. at 52. Beccaria saw this as a very narrow exception, writing: “But when the calm rule of law
prevails, under a form of government that has the support of the nation, which is well-fortified both
externally and internally by both force and opinion (which is perhaps more efficacious than force itself),
and in which the power to rule is vested only in the true sovereign and wealth can buy only pleasures not
authority, I do not see any need to destroy a citizen, unless his death were the only real way to deter others
from committing crimes.” Id.
199
Id. at 52.
200
See Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal
System in Austrian Lombardy for Matters Pertaining to Capital Punishment (1792), reprinted in B
ECCARIA
(Thomas trans.), supra note 1, at 153–59.
201
BECCARIA (Thomas trans.), supra note 1, at xvii, 153, 178–79 n.1. Scotti, a ministry of justice official,
was one of Beccaria’s pupils when Beccaria taught economics at the Scuole Palatine in Milan, and Risi was
associated with the Accademia dei Trasformati, the first academy Beccaria had joined prior to joining the
Academy of Fists.
Vol. 4:2] John D. Bessler
225
crimes, finding that “the death penalty should not be prescribed except in the case of
absolute necessity.”
202
But Beccaria and his co-authors were quick to note:
[I]n the peaceful circumstances of our society, and with the regular
administration of justice, we could not think of any case of absolute
necessity other than the situation in which the accused, in plotting the
subversion of the state, was capable, either through his external or internal
relationships, of disturbing and endangering society even while
imprisoned and closely watched.
203
Citing “the Austrian and Tuscan codes that we have received as models,” Beccaria and
his two colleagues felt compelled “to expose candidly and succinctly” their anti-death
penalty views.
204
“[W]e believe that the death penalty is not suitable,” they wrote,
“because it is not just, since it is not necessary”; “because it is less efficacious than
perpetual punishment equipped with a good deal of continuous publicity”; and “because
it cannot be undone.”
205
¶46 Right from its publication, On Crimes and Punishments—as Beccaria no doubt
expected—generated enormous controversy and decidedly mixed reviews.
206
The
Venetian Inquisition blocked importation of the book into Venetian territory in August
1764; an Italian monk, Ferdinando Facchinei, anonymously published a harsh rebuke of it
in 1765; the Roman Inquisition banned the book in February 1766; and in 1777, a
Spanish translation of the book was banned in Spain.
207
Voltaire, however, adored
Beccaria’s book, and drew on his own considerable fame to promote it.
208
In Milan, the
202
Id. at 153–55.
203
Id. at 154.
204
Id.
205
Id. at 154. “[W]e should suppress the death penalty” in favor of “perpetual enslavement,” the minority
report concluded, recommending that prisons be set up in several cities “so as to make sure that the
punishment is clear for all to see.” Id. at 155, 158.
206
MAESTRO, supra note 1, at 35–39. One critic called Beccaria “an enemy of Christianity, a wicked man
and a poor philosopher” as well as “a declared enemy of the Supreme Being.” Id. at 35. Beccaria’s book
would spark controversy for decades to come. One of Beccaria’s biggest critics was Immanuel Kant, a
death penalty advocate. Id. at 128–29. Kant—who believed all murderers should be executed—said
Beccaria’s anti-death penalty arguments amounted to “sophistry.” I
MMANUEL KANT, METAPHYSICAL
ELEMENTS OF JUSTICE 141–42 (John Ladd, trans., 2d ed. 1999).
207
BECCARIA (Thomas trans.), supra note 1, at xxiii–xxiv, xxvi; MAESTRO, supra note 1, at 128–29; see
also B
ECCARIA (Paolucci trans.), supra note 42, at xi (“The Church of Rome had placed the treatise on the
Index in 1766, condemning it for its extremely rationalistic presuppositions.”). In Notes and Observations
on the Book Entitled ‘On Crimes and Punishments,’ Ferdinando Facchinei dismissed Beccaria’s book,
saying it had not proved “that the death penalty and torture are useless.” B
ECCARIA (Thomas trans.), supra
note 1, at 100. This scathing review prompted a lengthy written response, also anonymously published,
from Pietro and Alessandro Verri. Id. at 102–112. That response, drafted as if it had come from the author
of On Crimes and Punishments, id. at 172 n.8, painted the reviewer as out of touch, saying “[m]y accuser
scarcely knows the temperament of today’s sovereigns.” Id. at 107. In a note “To the Reader” that
accompanied later editions of On Crimes and Punishments, Beccaria referenced that response, adopting it
as his own and emphasizing that he had given “public affirmation of my religion and of my obedience to
my sovereign in the reply to the Notes and Observations.” Id. at 7–8.
208
BECCARIA (Thomas trans.), supra note 1, at xxvii; see also Schwartz & Wishingrad, supra note 75, at
812. Voltaire’s 1766 commentary on Beccaria’s book was frequently reprinted with it in later editions. “I
was engrossed by a reading of On Crimes and Punishments,” Voltaire’s passionate commentary begins.
BECCARIA (Thomas trans.), supra note 1, at 113. “It was tyranny in particular,” Voltaire declared, “that
first decreed the death penalty for those who differed with the established Church on some dogmas.” Id. at
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
226
reformer Count Carlo Firmian, the plenipotentiary of Empress Maria Theresa, defended
Beccaria against charges of subversion and sacrilege.
209
¶47 Beccaria’s book quickly garnered the attention of monarchs
210
and led to calls for
criminal law reform and the death penalty’s abolition in Europe.
211
The book even led
Empress Catherine II to invite Beccaria to assist in the reform of Russia’s penal code—an
offer he considered for some time before turning it down.
212
In pre- and post-
revolutionary America, Beccaria’s novel ideas also shaped the views of the Founding
Fathers—determined men who risked everything, including being hanged, to form a new
republic.
213
Beccaria’s book would be read and admired by this illustrious group of well-
educated men—men who felt intense anger at the way the English crown had treated
them and who were highly receptive to an Enlightenment agenda.
214
C. The Abolition Movement in the United States
¶48 George Washington and Thomas Jefferson both bought copies of Beccaria’s book,
most likely in 1769,
215
and by the 1770s it was clear that Beccaria’s calls for criminal
justice reform were having a major impact across the Atlantic.
216
Between 1776 and
1779, Thomas Jefferson absorbed On Crimes and Punishments, intensely studying
Beccaria’s book as he drafted a bill calling for more proportionate punishments in
115. “It is clear,” Voltaire added, “that twenty robust thieves, sentenced to labour on some public works
for all of their lives, serve the state through their suffering, and that their deaths will only benefit the public
executioner, who is paid to kill people in public.” Id. at 128–29. “The compassionate author of On Crimes
and Punishments,” Voltaire explained, “is more than justified to complain that punishment is too often
excessive in relation to the crime, and that sometimes it is even detrimental to the state it was intended to
benefit.” Id. at 114–15. Reciting the adage that “a hanged man is good for nothing,” id. at 128, Voltaire
urged his readers to “read and reread the work of this lover of humanity.” Id. at 132.
209
BECCARIA (Paolucci trans.), supra note 42, at xi; BECCARIA (Thomas trans.), supra note 1, at 172 n.6;
M
AESTRO, supra note 1, at 4, 36–37.
210
Maria Theresa Habsburg (the Holy Roman Empress) of Austria and Grand Duke Leopold of Tuscany
both expressed their admiration for Beccaria’s ideas. B
ECCARIA (Paolucci trans.), supra note 42, at x;
B
ECCARIA (Bellamy ed.), supra note 1, at xxxvii.
211
BECCARIA (Young trans.), supra note 1, at xxviii–xxix. The book also garnered accolades and generated
an invitation from French intellectuals for Beccaria to visit Paris. The young Beccaria, however, was not at
ease in the limelight. He was persuaded to go to Paris in October 1766 with Alessandro Verri to meet his
French admirers, but after spending a few weeks in France, he became anxious and decided to return to
Italy to be with his wife and family. Beccaria went on to accept an appointment as a professor of political
economy at the Palatine School in Milan and, later, one in the Habsburg administration working as a
member of the Supreme Economic Council of Milan. Id. at xxviii; M
AESTRO, supra note 1, at 74, 95–96;
B
ECCARIA (Paolucci trans.), supra note 42, at xi; BECCARIA (Bellamy ed.), supra note 1, at 129.
212
MAESTRO, supra note 1, at 68–71.
213
Benjamin Franklin would famously remark, “We must all hang together, or assuredly we shall all hang
separately.” M
ARKUS HÜNEMÖRDER, THE SOCIETY OF THE CINCINNATI: CONSPIRACY AND DISTRUST IN
EARLY AMERICA 49 (2006).
214
BECCARIA (Young trans.), supra note 1, at xxix; Special Collections Focus, supra note 126, at 2.
215
BANNER, supra note 1, at 91; see also MASUR, supra note 1, at 175 n.10.
216
In 1776, the Philadelphia Society for Relieving Distressed Prisoners was formed, and reform efforts
picked up steam from there. The Philadelphia Society for Alleviating the Miseries of Public Prisons, for
example, was organized in 1787, and anti-death penalty agitation grew stronger over the coming decades.
See Jill M. Cochran, Courting Death: 30 Years Since Furman, Is the Death Penalty Any Less
Discriminatory? Looking at the Problem of Jury Discretion in Capital Sentencing, 38 V
AL. U. L. REV.
1399, 1406 n. 36 (2004); see also B
ANNER, supra note 1, at 88 (“In the 1760s and 1770s . . . many
Americans started to question whether death was too great a punishment for property crimes like burglary
and grand larceny. By the 1780s and 1790s the propriety of capital punishment for any crime, even
murder, was a bitterly contested issue.”); Bigel, supra note 144, at 39–40.
Vol. 4:2] John D. Bessler
227
Virginia.
217
Other American leaders—both before and after the 1770s—called for reform
of death penalty laws or engaged in individual acts of mercy.
218
For example, early
American presidents—who often used or threatened military force or called out the
militia to put down rebellious activities
219
—frequently made use of the clemency powers
granted by Article II of the Constitution.
220
They showed this lenience in spite of a long-
standing tradition of using the death penalty to punish rebels.
221
217
RANDALL, supra note 113, at 298. Randall writes: “Between 1776 and 1779, Jefferson gave more time
to researching the criminal laws than to any other segment of revisions. He systematically studied Anglo-
Saxon laws, medieval authorities like Bracton, and the chief foreign writers, including Beccaria. The finely
crafted bill he submitted in advance to George Wythe was a model of elegant, plain writing. He wrote
footnotes in Anglo-Saxon characters, in Latin, and in old French and English.” Id.
218
BANNER, supra note 1, at 88.
219
This happened in response to Pennsylvania’s “Whiskey Rebellion” of 1794 and in the wake of “Fries
Rebellion” in eastern Pennsylvania (led, ironically, by a militia captain who aided President Washington
during the Whiskey Rebellion). It also happened with respect to western Massachusetts’ Shays’ Rebellion
of 1786-87, seeking to halt foreclosures and demanding the printing of money to ease farmers’ debts, thus
leading to the Constitutional Convention. See Steven G. Calabresi & Christopher S. Yoo, The Unitary
Executive During the First Half-Century, 47 C
ASE W. RES. L. REV. 1451, 1493 (1997); Donald W. Dowd,
The Relevance of the Second Amendment to Gun Control Legislation, 58 M
ONT. L. REV. 79, 91–92 (1997);
Nigel Anthony Sellars, Treasonous Tenant Farmers and Seditious Sharecroppers: The 1917 Green Corn
Rebellion Trials, 27 O
KLA. CITY U. L. REV. 1097, 1104–05 (2002).
220
See Jerry Carannante, What to Do About the Executive Clemency Power in the Wake of the Clinton
Administration, 47 N.Y.L.
SCH. L. REV. 325, 331 (2003) (noting that George Washington pardoned leaders
of the Whiskey Rebellion in 1795, John Adams pardoned members of an insurrection in Pennsylvania, and
Thomas Jefferson granted clemency to persons convicted under the Alien and Sedition Act); Jaired
Stallard, Abuse of the Pardon Power, 1 D
EPAUL BUS. & COM. L.J. 103, 107–08 & n.32 (2002) (noting that
John Adams pardoned John Fries after he was sentenced to death for leading what became known as Fries’
Rebellion, in which many homeowners refused to pay taxes and were incarcerated, with Fries leading a
mob of approximately 150 men to free tax evaders); Darryl W. Jackson, Jeffrey H. Smith, Edward H.
Sisson & Helene T. Krasnoff, Bending Towards Justice: The Posthumous Pardon of Lieutenant Henry
Ossian Flipper, 74 I
ND. L.J. 1251, 1263–64 (1999) (noting that President Madison issued a pardon to the
Baratarian Pirates of Louisiana who fought to defend New Orleans in 1815); K
ATHLEEN DEAN MOORE,
P
ARDONS: JUSTICE, MERCY AND THE PUBLIC INTEREST 51 (1989) (“In order to fill up the army ranks to
fight the War of 1812, President James Madison pardoned deserters and, after the war, pardoned Lafitte’s
pirates.”); Hon. Andrew S. Effron, Military Justice: The Continuing Importance of Historical Perspective,
2000 A
RMY LAWYER 1, 5 (2000) (noting that Madison remitted the death sentence of Brigadier General
William Hull after he was sentenced to be shot); George Lardner, Jr. & Margaret Colgate Love, Mandatory
Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 F
ED. SEN’G. REP.
212, 214 (Feb. 1, 2004) (noting that Jefferson set aside the death sentence of burglar Samuel Miller and
pardoned a slave convicted of having “burglariously broken and entered” a home, and that Madison set
aside the death sentence of a career burglar who broke into a store); Walter Nelles, The First American
Labor Case, 41 Y
ALE L.J. 165, 171 (1931) (noting John Adams’ pardons of rioters sentenced to death).
221
In that era, death was seen as an appropriate punishment for British soldiers or traitors, though not by
all. Compare Dowd, supra note 219, at 92 n.50 (Samuel Adams, a leader of the American Revolution,
expressed the view that “[i]n monarchy the crime of treason may admit of being pardoned or lightly
punished . . . but the man who dares rebel against the laws of a republic ought to suffer death”) and H
ENRY
MAYER, A SON OF THUNDER, PATRICK HENRY AND THE AMERICAN REPUBLIC 347 (2001) (noting that
Patrick Henry helped draft a law allowing the governor to forcibly remove those who refused Virginia’s
oath of allegiance to positions behind enemy lines and order the death penalty for anyone who refused to
go) with Dowd, supra note 219, at 92 n.50 (quoting Thomas Jefferson as saying, “To punish these errors
too severely would be to suppress the only safeguard of the public liberty. A little rebellion now and then
is a good thing, . . . [A]n observation of this truth should render honest republican governors so mild in
their punishment of rebellions as not to discourage them too much.”); see also J
AMES HAW, JOHN &
EDWARD RUTLEDGE OF SOUTH CAROLINA 84, 159 (1997) (noting that John Rutledge, a delegate from
South Carolina to the 1787 Constitutional Convention and that state’s first leader, signed an act prescribing
the death penalty for anyone who aided the British cause and once suggested that “to stop the Enemy from
burning Houses” a British regular officer be hanged for every house burned); James G. Wilson, Chaining
the Leviathan: The Unconstitutionality of Executing Those Convicted of Treason, 45 U.
PITT. L. REV. 99,
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
228
¶49 President George Washington—a death penalty supporter
222
who had to oversee the
articles of war and cases of desertion
223
—felt executions were too frequently employed.
He sometimes favored setting aside soldiers’ death sentences,
224
and in 1778 he called for
more proportionate punishments
225
and the curtailment of death sentences.
226
In his
117 n.78 (1983) (“After a young slave led an unsuccessful revolt in 1800, James Monroe wrote Jefferson,
asking him how the many hundreds of slaves should be punished. Jefferson recommended that Monroe
exercise whatever mercy he could.”).
222
George Washington believed executions deterred crime and preserved order. BANNER, supra note 1, at
91; Jeffrey L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the
United States, 73 U.
COLO. L. REV. 1, 6 n.26 (2002); see also Letter from George Washington to William
Heath (Nov. 5, 1780) in 20 T
HE WRITINGS OF GEORGE WASHINGTON 298 (John C. Fitzpatrick ed., 1937)
(“Previous to yours of the 1st. Inst. I had requested you, to use your discretion in the execution of such of
the prisoners under sentence of death, as you considered proper objects for Capital punishment.”); Letter
from George Washington to William Livingston (Jan. 12, 1782) in 23 T
HE WRITINGS OF GEORGE
WASHINGTON 444–445 (John C. Fitzpatrick ed., 1937) (“It is in vain to expect that pernicious and growing
traffic will ever be stopped, untill [sic] the States pass laws agt. it, making the penalty, death. This I long
ago foresaw and recommended.”); Letter from George Washington to Horatio Gates (Feb. 14, 1778) in 10
T
HE WRITINGS OF GEORGE WASHINGTON 456, 457 (John C. Fitzpatrick ed., 1937) (“[I] do not conceive I
could with propriety, alter the capital punishment into a corporal one.”); Letter from George Washington to
Anne Cesare, Chevalier de la Luzerne (Nov. 13, 1782) in 25 T
HE WRITINGS OF GEORGE WASHINGTON 334
(John C. Fitzpatrick ed., 1937) (“I have at various periods of the War written to Congress and to the States,
endeavouring [sic] to convince them of the necessity of passing the most rigorous Laws to prevent the
Inhabitants from furnishing the Enemy with Provisions. I will write them again, and will use every
argument I am master of for that purpose. In all other Nations, I believe, the persons guilty of that crime
are punished with death . . .”). Accord 6 T
HE WRITINGS OF GEORGE WASHINGTON 497 (John C. Fitzpatrick
ed., 1937), 12 id. at 14, and 13 id. at 135, 139–40 (letters of George Washington confirming or ordering the
execution of spies); W
ILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 22 (2d ed. 1920) (noting that
the Continental Congress passed a law in 1776 to subject spies to the punishment of death under the
Articles of War).
223
Letter from George Washington to William Smallwood (Feb. 21, 1778) in 10 THE WRITINGS OF GEORGE
WASHINGTON 487, 488 (John C. Fitzpatrick ed., 1937) (discussing capital punishment in the context of “the
operation of our articles of war, with regard to intentional, or attempted desertion”); Letter from George
Washington to John Lacey Jr. (Feb. 21, 1778) in 10 T
HE WRITINGS OF GEORGE WASHINGTON 492 (John C.
Fitzpatrick ed., 1937) (“If there is any of them, who appear to be great offenders, and to be proper objects
for Capital punishment, you will send them to Head Quarters with the witnesses, that he may be tried by a
General Court Martial here.”); Letter from George Washington to William Livingston (Apr. 26, 1778) in 11
T
HE WRITINGS OF GEORGE WASHINGTON 310 (John C. Fitzpatrick ed., 1937) (saying “it is the practice of
War” to execute “immediately” any “Deserters attending Flags”).
224
For instance, Washington wrote a letter in April 1778 to express his preference for “detention and
confinement” over “capital punishment” for an enlisted soldier. Letter from George Washington to
William Livingston (Apr. 26, 1778), supra note 223. He also penned a clemency order in February 1780
for another soldier. Letter from George Washington to Lewis Nicola (Feb. 5, 1780) in 17 T
HE WRITINGS
OF
GEORGE WASHINGTON 491 (John C. Fitzpatrick ed., 1937). In the 1780 letter, Washington’s merciful
act was tempered by the fact that he sought to ensure the prisoner’s “future good conduct” by authorizing
the letter’s recipient to keep the pardon secret “for a few days” before letting the prisoner know his life had
been spared. Id.
225
Despite his approval of executions, George Washington wrote to the Continental Congress on January
29, 1778 to propose more proportionate offenses to reform army discipline: “Several new regulations will, I
imagine, be found useful in the articles of war; which the Judge Advocate, from his official experience of
the deficiency, can more accurately indicate. One thing, we have suffered much from, is the want of a
proper gradation of punishments: the interval between a hundred lashes and death is too great and requires
to be filled by some intermediate stages. Capital crimes in the army are frequent, particularly in the
instance of desertion: actually to inflict capital punishment upon every deserter or other heinous offender,
would incur the imputation of cruelty, and by the familiarity of the example, destroy its efficacy; on the
other hand to give only a hundred lashes to such criminals is a burlesque on their crimes rather than a
serious correction, and affords encouragement to obstinacy and imitation. The Courts are often in a manner
compelled by the enormity of the facts, to pass sentences of death, which I am as often obliged to remit, on
account of the number in the same circumstances, and let the offenders pass wholly unpunished. This
Vol. 4:2] John D. Bessler
229
seventh annual message to Congress, delivered in Philadelphia on December 8, 1795,
President Washington also said this in regard to the pardoning of capital offenders:
It is a valuable ingredient in the general estimate of our welfare that the
part of our country which was lately the scene of disorder and insurrection
now enjoys the blessings of quiet and order. The misled have abandoned
their errors, and pay the respect to our Constitution and laws which is due
from good citizens to the public authorities of the society. These
circumstances have induced me to pardon generally the offenders here
referred to, and to extend forgiveness to those who had been adjudged to
capital punishment. For though I shall always think it a sacred duty to
exercise with firmness and energy the constitutional powers with which I
am vested, yet it appears to me no less consistent with the public good
than it is with my personal feelings to mingle in the operations of
Government every degree of moderation and tenderness which the
national justice, dignity, and safety may permit.
227
Washington thus viewed executions as a last resort—and then only if he felt them
absolutely necessary.
228
would be avoided, if there were other punishments short of the destruction of life, in some degree adequate
to the crime; and which might be with propriety substituted. Crimes too are so various in their complexions
and degrees, that to preserve the just rule of proportion, there ought to be a gradual scale of punishments; in
order to which, whipping should be extended to any number at discretion, or by no means, limited lower
than five hundred lashes.” Letter from George Washington to Continental Congress Conference
Committee (Jan. 29, 1778) in 10 T
HE WRITINGS OF GEORGE WASHINGTON 362, 402–03 (John C.
Fitzpatrick ed., 1937).
226
Having read Beccaria’s views on proportionate punishments, George Washington wrote to the
Continental Congress on August 31, 1778, saying this about the use of capital punishment: “The frequent
condemnations to capital punishment, for want of some intermediate one between that and a Hundred
lashes (the next highest under our present military articles) and the necessity of frequent pardons in
consequence, induced me a few days ago, to lay the matter before a Board of Officers for them to consider,
whether some mode might not be devised of equal or greater efficacy for preventing crimes and punishing
Delinquents when they had happened, less shocking to humanity and more advantageous to the States, than
that of Capital execution. The inclosed paper No. 3, contains the opinion of the Board upon the subject,
which with all deference I submit to the consideration of Congress and doubt not but they will adopt the
expedient suggested, if it shall appear in anywise calculated to promote the service. I will only observe
before I conclude upon this occasion, that when I call the Board to consult upon the point, there were
Eleven prisoners under sentence of death, and probably many more for trial, in the different guards on
charges that would effect their lives.” Letter from George Washington to Continental Congress (Aug.31,
1779) in 10 T
HE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES, 1745-
1799
(John C. Fitzpatrick ed., 1937), available at http://memory.loc.gov/cgi-
bin/query/r?ammem/mgw:@field(DOCID+@lit(gw120409). The enclosure, Paper No. 3, was a copy of
the proceedings of the Council of General Officers dated August 20, 1778. That document noted that “his
Excellency” had requested the Council’s sentiments on “the expediency of punishment by hard and severe
labor, instead of death,” and in it, the Council reported that it was unanimously decided that “severe hard
labour be recommended . . . to be the intermediate punishment between one hundred Lashes, and Death.”
See Council of General Officers, Paper No. 3, http://memory.loc.gov/mss/mgw/mgw4/051/0400/0456.jpg
(last visited Aug. 31, 2009).
227
The Papers of George Washingon, Washington’s Seventh Annual Message to Congress, 8 Dec. 1795,
Philadelphia, http://gwpapers.virginia.edu/documents/union/state7.html (last visited Aug. 31, 2009).
228
This seems particularly clear from a communication Washington sent to the Continental Congress just
days after the signing of the Declaration of Independence. In discussing the capture, plunder and murder of
some Americans by Indians, Washington expressed a willingness to resort to capital punishment to punish
those posing a challenge to the young nation’s security: “The Inhuman Treatment to the whole, and Murder
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
230
¶50 Alexander Hamilton—another death penalty supporter
229
—also made clear before
the century’s end that he, too, felt death sentences could be too harsh in some instances.
A defender of the presidential pardoning power,
230
Hamilton did not hesitate to support
the use of capital punishment if he felt it would be effective. For example, Hamilton—
who served as a general of the army under President Adams—wrote in support of using
executions to prevent desertion:
I have heretofore spoken to you of the frequency of desertion, and of the
necessity of repressing it by severe punishment. It is not my wish to
influence opinion in any particular case, but I believe that a few examples
of capital punishment, perhaps one in each regiment, will be found
indispensable.
231
¶51 Yet Hamilton, like others in early America, also recognized that “[t]he temper of
our country is not a little opposed to the frequency of capital punishment,”
232
and
recommended in 1799 that a deserter’s life be spared.
233
In that case, after John Adams
reluctantly approved the death sentence for a deserter, Sergeant Richard Hunt, Adams
wrote a letter to Secretary of War James McHenry: “Yet if you and General Hamilton,
think that one example, may suffice, for the purposes of public justice, the execution of
Hunt . . . may yet be respited.”
234
Upon receiving the death warrant, Hamilton, in turn,
wrote to McHenry—a signer of the U.S. Constitution and an army surgeon who studied
of part of our People after their Surrender and Capitulation, was certainly a flagrant violation of that Faith
which ought to be held sacred by all civilized nations, and founded in the most Savage barbarity. It highly
deserved the severest reprobation, and I trust the Spirited Measures Congress have adopted upon the
Occasion, will prevent the like in future: But if they should not, and the claims of humanity are disregarded,
Justice and Policy will require recourse to be had to the Law of retaliation, however abhorrent and
disagreeable to our natures in cases of Torture and Capital Punishments.” Letter from George Washington
to Continental Congress (July 15, 1776) in 5 T
HE WRITINGS OF GEORGE WASHINGTON 362, 279–80 (John
C. Fitzpatrick ed., 1937).
229
Alexander Hamilton, who believed in duels to resolve insults and who was famously killed in one, saw
death sentences as part of the fabric of the criminal law. For example, he applauded the 1776 execution of
Thomas Hickey, a soldier who plotted to murder George Washington. See Roger P. Alford, Roper v.
Simmons and Our Constitution in International Equipoise, 53 UCLA L. REV. 1, 11 n.48 (2005).
230
Hamilton defended the presidential pardoning power in Federalist Paper No. 74, saying: “Humanity and
good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that
without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too
sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it
may be inferred that a single man would be most ready to attend to the force of those motives which might
plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated
to shelter a fit object of its vengeance.” T
HE FEDERALIST NO. 74 (Alexander Hamilton). In 1787, James
Wilson also argued that “[p]ardon is necessary for cases of treason.” 2 J
ONATHAN ELLIOT, ED., THE
DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS
RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 549 (1881); Daniel T. Kobil,
The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 T
EX. L. REV. 569, 591
n.132 (1991).
231
XXIII THE PAPERS OF ALEXANDER HAMILTON 496 (Harold C. Syrett ed.,1976); see also id. at 275–76
(noting Hamilton’s approval of a death sentence by shooting for a deserter, private Joseph Perkins).
232
Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in 7 THE WORKS OF ALEXANDER
HAMILTON 100 (Henry Cabot Lodge ed., G. P. Putnam’s Sons, 1971) (1904).
233
Id. at 101.
234
THE PAPERS OF ALEXANDER HAMILTON, supra note 231, at 286.
Vol. 4:2] John D. Bessler
231
medicine under Dr. Benjamin Rush in Philadelphia.
235
In that letter, Hamilton laid out
his view that the death penalty should be used sparingly, arguing that public opinion “is
not wholly to be disregarded” and that there must be “some caution not to render our
military system odious by giving it the appearance of being sanguinary.” “The idea of
cruelty,” Hamilton wrote, “inspires disgust, and ultimately is not much more favourable
to authority than the excess of lenity.”
236
“To disseminate the examples of executions so
far as they shall be indispensable,” Hamilton emphasized, “will serve to render them
more efficacious.”
237
Hamilton ended his letter by urging mercy for the soldier:
Under these impressions, if I hear nothing to the contrary from you by the
return of the post, I shall issue an order to the following effect: “That,
though the President has fully approved the sentence of Sergeant Hunt,
and, from the heinous nature of his conduct, considers him a very fit
subject for punishment; yet, being unwilling to multiply examples of
severity, however just, beyond what experience may show to be
indispensable, and hoping that the good faith and patriotism of the soldiery
will spare him the painful necessity of frequently resorting to them, he has
thought fit to authorize a remission of the punishment; directing,
nevertheless, that Sergeant Hunt be degraded from his station.”
238
President Adams ultimately went along with Hamilton’s proposal.
239
¶52 Even Southern Founding Fathers, such as Charles Pinckney and Pierce Butler of
South Carolina, opposed capital punishment for certain categories of offenders—at least
when it came to punishing whites.
240
Pierce Butler, one of South Carolina’s four
delegates at the 1787 Constitutional Convention, actually wrote a letter in 1791 to his
quick-tempered friend, Col. James Gunn, in which he advised against capital punishment
for a man alleged to have had an affair with the colonel’s wife. As Butler wrote: “The
chastising of a bad Man, or still worse, putting him to death will not restore to You the
domestic happiness You have lost.”
241
Another Southerner, William Few of Georgia, no
doubt also felt ambivalent about capital punishment. Although Few, a signer of the U.S.
235
Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in THE WORKS OF ALEXANDER
HAMILTON, supra note 232, at 100–01; BERNARD C. STEINER, LIFE AND CORRESPONDENCE OF JAMES
MCHENRY: SECRETARY OF WAR UNDER WASHINGTON AND ADAMS 4 (2007).
236
Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in THE WORKS OF ALEXANDER
HAMILTON, supra note 232, at 100–01.
237
Id. Hamilton also opposed the execution of Charles Asgill, who was once slated to be executed in
retaliation for the execution of another man, Joshua Huddy, a militia artillery captain. M
ASUR, supra note
1, at 56–58.
238
Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in THE WORKS OF ALEXANDER
HAMILTON, supra note 232, at 101.
239
STEINER, supra note 235, at 302.
240
See MARTY D. MATTHEWS, FORGOTTEN FOUNDER: THE LIFE AND TIMES OF CHARLES PINCKNEY, at xvi,
53, 94, 121 (2004) (noting that Charles Pinckney, a signer of the Constitution, had sought to implement
penal reform by restricting capital punishment to only the severest of offenses, that “the death penalty for
slaves was not uncommon,” and that Pinckney called for it to be a capital offense to introduce “free
person[s] of color or slave” from the West Indies).
241
Letter from Pierce Butler to Colonel Gunn (Aug. 31, 1791) in THE LETTERS OF PIERCE BUTLER 1790-
1794:
NATION BUILDING AND ENTERPRISE IN THE NEW AMERICAN REPUBLIC 113 (Terry W. Lipscomb ed.,
2008).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
232
Constitution and later a superior court judge in Georgia, sentenced a murderer and a
horse thief to death (sentences that were later set aside), his elder brother, James, had
been executed on the orders of a Tory governor. In fact, Few’s biographer notes that Few
himself often called for sentences he handed down to be remitted.
242
D. From Dr. Benjamin Rush to Furman v. Georgia
¶53 Dr. Benjamin Rush, a signer of the Declaration of Independence, was one of the
first Americans to call for the death penalty’s total abolition.
243
He spoke out against the
death penalty for murderers at the end of a paper advocating private punishments that was
read at Benjamin Franklin’s house on March 9, 1787.
244
And he elaborated on his ideas
in an essay titled “Considerations of the Injustice and Impolicy of Punishing Murder by
Death,” published in the July 1788 edition of American Museum magazine.
245
Dr. Rush
distributed these essays and America’s abolitionist campaign, focused initially in New
York and Pennsylvania, took off, soon to be joined and invigorated by other leaders.
246
242
See MILDRED CROW SARGENT, 2 WILLIAM FEW, A FOUNDING FATHER: A BIOGRAPHICAL PERSPECTIVE
OF
EARLY AMERICAN HISTORY 893, 898, 1055 (2006) (noting a murderer Few sentenced to die on March
11, 1797, a horse thief Few sentenced to die on May 26, 1797, and citing Executive Minutes of Georgia,
1796–97, at 155, 164–65, 206–07 (Georgia Division of Archives and History)). James Few was killed after
the Battle of Alamance, on May 16, 1771, in North Carolina, leaving behind twins that needed childrearing.
Id. at 601; see also J
IM WISE, DURHAM: A BULL CITY STORY 24 (2002) (“Colonial administration in the
back country proved oppressive and corrupt. In 1771, the Fews joined many of their neighbors in the
Regulator uprising, smashed by Governor William Tryon and the provincial militia at the Battle of
Alamance. William Few’s brother James was hanged, the family farm was destroyed, and his father fled to
Georgia.”); T
HE WAY WE LIVED IN NORTH CAROLINA 102 (Joe A. Mobley, ed.) (2003) (“One of the six
hanged was James Few, brother of William Few. Though a Quaker, James proclaimed himself ‘sent by
heaven to release the world of oppression and to begin in Carolina.’ The remaining Few family moved to
Georgia, where William became a leader in the American Revolution.”).
243
Eugene G. Wanger, Historical Reflections on Michigan’s Abolition of the Death Penalty, 13 T.M.
COOLEY L. REV. 755, 757–58 (1996). Several signers of the Declaration of Independence opposed capital
punishment either categorically or for certain crimes. See Jupiter, supra note 9, at 478. Dr. Rush, however,
was certainly not the first American to advocate the total or partial abolition of capital punishment. See
B
ANNER, supra note 1, at 100; Furman, 408 U.S. at 336 (Marshall, J., concurring). Indeed, in the 1600s,
Quaker William Penn, Pennsylvania’s founder and first governor, had compiled a criminal code providing
that the death penalty would only be inflicted for treason and deliberate murder. But Queen Anne thought
Penn’s approach so at variance with English custom and law that she annulled it. M
AESTRO, supra note 1,
at 16–17, 138; Schwartz & Wishingrad, supra note 75, at 820–21; see also Furman, 408 U.S. at 335–36
(Marshall, J., concurring).
244
Rush’s March 9 essay, “An Enquiry into the Effects of Public Punishments upon Criminals, and upon
Society,” appeared in the American Museum magazine. See Benjamin Rush, An Enquiry into the Effects of
Public Punishments upon Criminals, and upon Society, 2 A
MERICAN MUSEUM 142, 142–43 (Mar. 9, 1787);
Wanger, supra note 243, at 758. See also Douglas, supra note 112, at 159 (“Rush challenged the widely
held view that the executioner was God’s servant, labeling it sacrilegious for public officials to claim that
they shared with God the right to punish by death.”). Beccaria and Rush—though both death penalty
foes—did part ways in one respect. Whereas Beccaria favored public punishments, B
ECCARIA (Thomas
ed.), supra note 1, at 86, Rush favored private ones. BESSLER, DEATH IN THE DARK, supra note 31, at 40.
Rush asked rhetorically, “How often do we find pockets picked under a gallows, and highway robberies
committed within sight of the gibbet?” Id.
245
BANNER, supra note 1, at 332 n.32; Schwartz & Wishingrad, supra note 75, at 823. This essay, along
with Rush’s first essay, was reprinted by Rush, with revisions, in pamphlet form before his death in 1813.
The 1806 text of both essays can be found at B
ENJAMIN RUSH, ESSAYS LITERARY, MORAL AND
PHILOSOPHICAL 79–105 (Michael Meranze ed. 1988).
246
Wanger, supra note 243, at 757–58. Even before the publication of Dr. Rush’s essays, Pennsylvania had
witnessed some reform. See B
ANNER, supra note 1, at 97 (“Pennsylvania’s 1786 penal reform, the first of
many that would follow in the United States over the course of the next century, abolished capital
Vol. 4:2] John D. Bessler
233
Due to Dr. Rush’s advocacy, in 1794, the year of Beccaria’s death, Pennsylvania took the
novel step of dividing murder into degrees and restricted capital punishment to first-
degree murder.
247
¶54 In the 1790s and early 1800s, significant efforts were made in many locales,
including Pennsylvania, New York and Louisiana, to curtail or end capital punishment
altogether.
248
In fact, America’s abolition movement greatly intensified in the 1830s,
with considerable anti-death penalty agitation taking place in many parts of the
country.
249
By the 1840s, anti-gallows societies had been formed in Massachusetts and
New York,
250
though success would first be obtained far away, in the Upper Midwest. In
1846, Michigan became the first American state—indeed, the first English-speaking
jurisdiction—to abolish capital punishment for murder.
251
In the 1850s two other states,
Rhode Island and Wisconsin, followed suit, with societies for the abolition of capital
punishment steadily growing in number nationwide.
252
¶55 The anti-death penalty crusade, however, soon came to an abrupt halt. The onset of
the Civil War delayed the progress of America’s abolition movement,
253
with abolition
punishment for robbery, burglary, sodomy, and buggery.”); see also id. at 98 (“Between 1794 and 1798
five states abolished the death penalty for all crimes other than murder, and three of the five even abolished
it for certain kinds of murder. The first was Pennsylvania, which in 1794 provided prison sentences in
place of death for treason, manslaughter, rape, arson, and counterfeiting. Murder remained the sole capital
crime, and even murder, for the first time in any jurisdiction with a legal system based on that of England,
was divided into degrees. . . . Two years later Virginia enacted a similar statute.”).
247
Binder, supra note 150, at 119. Dr. Rush never credited Voltaire with influencing his views on capital
punishment. See Kastenberg, supra note 51, at 69. However, Dr. Rush specifically made reference to
Beccaria and his thinking was clearly influenced by European ideas. See, e.g., id. at 68–69.
248
In 1790, Pennsylvania—with its heavy Quaker influence—abolished the death penalty for robbery,
burglary, and sodomy. F
RIEDMAN, supra note 61, at 73. Also, New York governors unsuccessfully battled
New York’s legislature over the issue, and Edward Livingston—an American lawyer, who later became
Secretary of State and Andrew Jackson’s Minister to France—proposed the total abolition of the death
penalty in a draft penal code for the State of Louisiana. Furman, 408 U.S. at 337 (Marshall, J.,
concurring); see also B
ANNER, supra note 1, at 138 (noting that Edward Livingston of Louisiana pressed
for the abolition of capital punishment in the 1820s and 1830s).
Beccaria’s most important disciple in New York was Thomas Eddy. See E
DWIN G. BURROWS & MIKE
WALLACE, GOTHAM: A HISTORY OF NEW YORK CITY TO 1898, 366 (1999); see also United States v. Blake,
89 F. Supp.2d 328, 342–43 (E.D.N.Y. 2000) (“At the end of the eighteenth century, New York had an
extremely long list of capital crimes including housebreaking and malicious mischief; lesser criminals were
subject to corporal punishment or—if granted by a magistrate—confinement at hard labor.” Eddy proposed
changing those laws in the mid-1790s and the reform efforts led to the 1796 abolition of corporal
punishment and “the reduction of capital offenses to treason, murder, and theft from church.”).
249
Furman, 408 U.S. at 337–38 (Marshall, J., concurring); see also Beth A. Berkowitz, Negotiating
Violence and the Word in Rabbinic Law, 17 Y
ALE J.L. & HUMAN. 125, 127 (2005) (“Criticism of the death
penalty in America can be traced back to the Founding Fathers, and in the 1830s and 1840s penal reform
organizations were created. The Bible became the field on which the debates were fought, with each side
using it as justification for their view.”).
250
BESSLER, DEATH IN THE DARK, supra note 31, at 44. Charles Spear, a Massachusetts minister,
published Essays on the Punishment of Death, an anti-death penalty book, and became a leading
nineteenth-century abolitionist. Douglas, supra note 112, at 160.
251
See Wanger, supra note 243, at 765. Michigan’s law, which provided that first-degree murder “shall be
punished by solitary confinement at hard labor in the state prison for life,” actually took effect on March 1,
1847. Id. at 765 n.59. The imposition of lifetime solitary confinement was later abandoned. See Harold
M. Helfman, A Forgotten Aftermath to Michigan’s Abolition of Capital Punishment, 40 MICH. HIST. MAG.
203, 203–14 (1956) (providing an overview of the history of the deathy penalty in Michigan).
252
BESSLER, DEATH IN THE DARK, supra note 31, at 44; Furman, 408 U.S. at 338 (Marshall, J.,
concurring).
253
BESSLER, DEATH IN THE DARK, supra note 31, at 45; Kirchmeier, supra note 222, at 8 (“During the war,
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
234
efforts, led by Wisconsin state legislator Marvin Bovee, not resuming until after the
war.
254
Bovee even delayed the publication of his anti-death penalty manifesto until
1869,
255
saying that to have presented such a work during the Civil War “would have
been ‘ill-timed,’ to say the least.”
256
¶56 It took some time for the abolitionist movement to regain its footing, but once it
did, things moved rapidly. In the Progressive Era, ten states abolished the death penalty,
though widespread societal fears quickly overcame that momentum, with all but two of
those states soon reinstating capital punishment.
257
America’s entry into World War I
and the country’s hard economic times, culminating in the Great Depression, dealt
another blow to the movement, making criminal law reform excruciatingly difficult. The
country’s focus on the war and people’s struggle to find work and support their families
ultimately deflated the abolitionist cause, at least for a time.
258
¶57 Although the privatization of executions reduced public consciousness of them, the
end of World War II saw a rebirth of the anti-death penalty movement.
259
From 1958 to
1965, four states—Delaware, Oregon, Iowa and West Virginia—abandoned capital
punishment, executions became less frequent, and it looked to many in the media and in
the courts like the beginning of the end for America’s death penalty.
260
Oregon’s
abolition had come through a public referendum and public opinion was turning against
capital punishment.
261
¶58 Other developments in the turbulent 1960s also pointed to the death penalty’s
demise. The first edition of Hugo Adam Bedau’s influential book, The Death Penalty in
any tragic aspects of the execution of criminals paled in comparison to the deaths of the heroes in the
fields.”). Wars have frequently slowed anti-death penalty agitation. Id. at 102 (pointing to prior wars that
have halted moratorium movements).
254
See, e.g., PHILIP ENGLISH MACKEY, VOICES AGAINST DEATH: AMERICAN OPPOSITION TO CAPITAL
PUNISHMENT 1787-1975 (1976); see also Louis Filler, Movements to Abolish the Death Penalty in the
United States, A
NNALS AM. ACAD. POL. & SOC. SCI. (Nov. 1952).
255
MARVIN H. BOVEE, CHRIST AND THE GALLOWS; OR, REASONS FOR THE ABOLITION OF CAPITAL
PUNISHMENT (1869); BESSLER, DEATH IN THE DARK, supra note 31, at 46.
256
BESSLER, DEATH IN THE DARK, supra note 31, at 46.
257
Kirchmeier, supra note 222, at 10; see also JOHN F. GALLIHER, ET AL., AMERICA WITHOUT THE DEATH
PENALTY: STATES LEADING THE WAY (Northeastern, 2002) (examining why twelve states and the District
of Columbia do not impose the death penalty); John Galliher, Gregory Ray & Brent Cook, Abolition and
Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century, 83 J.
OF CRIM.
L. & CRIMINOLOGY 538 (1992) (cataloging the abolishment and reinstatement of the death penalty in
American states).
258
As one well-respected scholar points out: “In time of war, use of the death penalty generally becomes
more frequent and the safeguards surrounding its use less stringent.” S
CHABAS, supra note 3, at 211. “[I]t
is in time of war when the greatest abuse of the death penalty occurs. Criteria of expediency and State
terror stampede panicked governments towards inhumane excesses that would be unthinkable in time of
peace.” Id. at 369.
259
For example, Albert Camus, a death penalty foe, published his essay “Réflexions sur la guillotine” in the
1950s. O
LIVER TODD, ALBERT CAMUS: A LIFE 359, 364 (Benjamin Ivry trans., 1997). In that time frame,
Arthur Koestler—another writer—also published an influential anti-death penalty title. See A
RTHUR
KOESTLER, REFLECTIONS ON HANGING (1957).
260
Kirchmeier, supra note 222, at 11–12. See Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L.
REV. 1, 19 (2007) (footnotes omitted) (“In the 1930s, the average number of executions per year was 167;
in the 1940s, the average was 128. By the 1950s, that figure had dropped to 72. In 1962, there were only
47 executions, and the numbers plummeted from there—1963 had 21 executions, 1964 had 15, 1965 had 7,
1966 had one, 1967 had two, and from 1968 until the death penalty was reinstated in 1976, there were
none.”).
261
Kirchmeier, supra note 222, at 11–12.
Vol. 4:2] John D. Bessler
235
America, hit shelves in 1964,
262
and in 1966, more people opposed the death penalty than
favored it.
263
In 1968—the same year that United States Attorney General Ramsey Clark
asked Congress to abolish the federal death penalty
264
—the Supreme Court itself
observed that death penalty advocates were a “distinct and dwindling minority.”
265
The
number of executions fell off still more, then came to a complete standstill as the
NAACP,
266
a handful of lawyers, and the crusading law professor Anthony Amsterdam
led a litigation effort that culminated with the Supreme Court’s landmark decision in
Furman v. Georgia.
267
IV. T
HE POST-FURMAN PERIOD
A. The Supreme Court’s Ruling in Furman v. Georgia
¶59 Modern death penalty jurisprudence traces its origins to Furman, the case that
declared death penalty laws nationwide unconstitutional as applied.
268
At stake in
Furman was the fate of three black defendants: a convicted murderer and two men
sentenced to death for raping white women.
269
By a five-to-four vote, the Supreme Court
set aside all three death sentences, though the rationales for the Court’s judgment varied
considerably, with all nine Justices issuing their own individual opinions.
270
In a terse,
one-paragraph per curiam ruling, the majority held simply that “the imposition and
carrying out of the death penalty in these cases constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments.”
271
After reversing the
262
THE DEATH PENALTY IN AMERICA (Hugo Adam Bedau, ed., 2d. ed. 1967).
263
Kirchmeier, supra note 222, at 12.
264
Id.
265
Witherspoon v. Illinois, 391 U.S. 510, 520 (1968).
266
The NAACP played an important role in Furman, just as it had in challenging lynchings prior to that
time. Graham v. Collins, 506 U.S. 461, 481 (1993) (Thomas, J., concurring) (“The unquestionable
importance of race in Furman is reflected in the fact that three of the original four petitioners in the Furman
cases were represented by the NAACP Legal Defense and Educational Fund, Inc. This representation was
part of a concerted ‘national litigative campaign against the constitutionality of the death penalty’ waged by
a small number of ambitious lawyers and academics on the Fund's behalf. Although their efforts began
rather modestly, assisting indigent black defendants in isolated criminal cases—usually rape cases—where
racial discrimination was suspected, the lawyers at the Fund ultimately devised and implemented (not
without some prompting from this Court) an all-out strategy of litigation against the death penalty.”) (citing
Robert A. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 M
ICH. L. REV. 1741,
1745 (1987)); see generally M
ICHAEL MELTSNER, CRUEL AND UNUSUAL: THE SUPREME COURT AND
CAPITAL PUNISHMENT (1973); Eric L. Muller, The Legal Defense Fund's Capital Punishment Campaign:
The Distorting Influence of Death, 4 Y
ALE L. & POL'Y REV. 158 (1985)).
267
408 U.S. 238 (1972); see also MELTSNER, supra note 266.
268
For a recent summary of the Supreme Court’s death penalty jurisprudence, see James S. Liebman, Slow
Dancing With Death: The Supreme Court and Capital Punishment, 1963-2006, 107 C
OLUM. L. REV. 1
(2007).
269
RANDALL COYNE & LYN ENTZEROTH, CAPITAL PUNISHMENT AND THE JUDICIAL PROCESS 148 (3d ed.
2006).
270
Furman, 408 U.S. at 240.
271
Id. at 239. Whether an action is “unusual”—one of the terms used in the Eighth Amendment—depends
upon “the frequency of its occurrence or the magnitude of its acceptance.” Thompson v. Oklahoma, 487
U.S. 815, 822, n.7 (1988) (plurality opinion); compare Furman, 408 U.S. at 377 (Burger, C.J., dissenting)
(“There was no discussion of the interrelationship of the terms ‘cruel’ and ‘unusual,’ and there is nothing in
the debates supporting the inference that the Founding Fathers would have been receptive to torturous or
excessively cruel punishments even if usual in character or authorized by law.”) with Trop v. Dulles, 356
U.S. 86, 100 n.32 (1958) (plurality opinion) (“Whether the word ‘unusual’ has any qualitative meaning
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
236
judgments and cursorily remanding the cases, the Court punctuated its decision with
every winning lawyer’s favorite words: “So ordered.” But the concurring and dissenting
opinions, full of back-and-forth sparring, took up more than 200 pages, a record length.
272
Furman effectively set aside every U.S. death sentence, more than 500 in all, thus
clearing out America’s death row.
273
¶60 The Justices’ opinions in Furman reflected Americans’ own diverse and conflicted
views on capital punishment. Justice William O. Douglas said death penalty statutes
were “pregnant with discrimination” and “unconstitutional in their operation.”
274
It
violates the Eighth Amendment, he wrote, to apply the death penalty “selectively to
minorities.”
275
Justice Brennan, in his opinion, concluded that “the Cruel and Unusual
Punishments Clause prohibits the infliction of uncivilized and inhuman punishments.”
276
“A punishment is ‘cruel and unusual,’” Brennan wrote, “if it does not comport with
human dignity.”
277
Calling the “calculated killing of a human being” by the State
“uniquely degrading to human dignity,” he said the death penalty was rare, unnecessary,
and “smacks of little more than a lottery system.”
278
“[I]t is certainly doubtful,” Brennan
different from ‘cruel’ is not clear. On the few occasions this Court has had to consider the meaning of the
phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. . . . If the
word ‘unusual’ is to have any meaning apart from the word ‘cruel,’ however, the meaning should be an
ordinary one, signifying something different from that which is generally done.”). The proper
interpretation of “unusual,” at least from a constitutional perspective, has been highly contentious.
Compare John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to
Cruel Innovation, 102 N
W. U. L. REV. 1739, 1745 (2008) (arguing that the word “unusual” means contrary
to “long usage” and that the word “unusual” was included in the Eighth Amendment to direct courts to give
scrutiny to new or innovative punishments that deviated from long-established punishments) and Joshua L.
Shapiro, And Unusual: Examining the Forgotten Prong of the Eighth Amendment, 38 U.
MEM. L. REV. 465,
471–72 (2008) (arguing that “the appropriate benchmark for determining whether a punishment is unusual
is when three-fourths of the states forbid its imposition”) with Tom Stacy, Cleaning Up the Eighth
Amendment Mess, 14 W
M. & MARY BILL RTS. J. 475, 486 (2005) (“An ‘unusual’ punishment is one that is
out of the ordinary, one that is not regularly employed.”); id. at 503 (arguing that “the available evidence
indicates that the Founders understood” the terms “cruel” and “unusual” to “capture the same meaning,”
and that “[t]he history of the English Bill of Rights reinforces the conclusion that the phrases ‘cruel and
unusual’ and ‘cruel or unusual’ were understood to capture the same meaning”).
272
Nicci Lovre-Laughlin, Lethal Decisions: Examining the Role of Prosecutorial Discretion in Capital
Cases in South Dakota and the Federal Justice System, 50 S.D.
L. REV. 550, 555 n.44 (2005).
273
BESSLER, DEATH IN THE DARK, supra note 31, at 131. Shortly before the Furman decision, the
California Supreme Court held that capital punishment violated that state’s constitution. People v.
Anderson, 100 Cal. Rptr. 152 (1972). That California decision had already reduced America’s death row
population by more than a hundred people. Furman, 408 U.S. at 314 n.1 (Marshall, J., concurring).
274
Furman, 408 U.S. at 256–57 (Douglas, J., concurring). Racial discrimination in the administration of
capital punishment dates back many centuries. Slave codes enacted in the 1600s, for example, punished
black offenders more harshly than white offenders and made crimes committed by slaves death-eligible—
something not always true for whites. C
APITAL PUNISHMENT IN THE UNITED STATES: A DOCUMENTARY
HISTORY 2 (Bryan Vila & Cynthia Morris, eds., 1997).
275
Furman, 408 U.S. at 245 (Douglas, J. concurring). Douglas pointed out that all three men were black
and went on to describe each man’s background. Lucious Jackson, Jr., 21, was said to have “escaped from
a work gang” after being convicted for auto theft; William Furman, 26, only “finished the sixth grade” and
had been shown to need psychiatric care; and Elmer Branch had “well below the average IQ of Texas
prison inmates,” the equivalent of five and half years of grade school, and was “in the lowest fourth
percentile of his class.” Id. at 252–53.
276
Furman, 408 U.S. at 270 (Brennan, J., concurring). Brennan noted that one of the historic concerns
behind the clause was “a safeguard against arbitrary punishments.” Id. at 274.
277
Id. at 270.
278
Id. at 290–91, 304, 293. “When a country of over 200 million people inflicts an unusually severe
punishment no more than 50 times a year,” Brennan wrote, “the inference is strong that the punishment is
not being regularly and fairly applied.” Id. at 293.
Vol. 4:2] John D. Bessler
237
concluded, “that the infliction of death by the State does in fact strengthen the
community’s moral code; if the deliberate extinguishment of human life has any effect at
all, it more likely tends to lower our respect for human life and brutalize our values.”
279
¶61 Justice Potter Stewart called capital punishment “unique in its total irrevocability”
and felt death sentences were cruel and unusual “in the same way that being struck by
lightning is cruel and unusual.”
280
“For, of all the people convicted of rapes and murders
in 1967 and 1968, many just as reprehensible as these,” Justice Stewart wrote, “the
petitioners are among a capriciously selected random handful upon whom the sentence of
death has in fact been imposed.”
281
“[I]f any basis can be discerned for the selection of
these few to be sentenced to die,” Stewart noted, “it is the constitutionally impermissible
basis of race.”
282
“I simply conclude,” Stewart wrote, “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.”
283
¶62 For Justice Byron White, death sentences were so infrequently imposed that they
became “pointless and needless,” with White concluding that “the threat of execution is
too attenuated to be of substantial service to criminal justice.”
284
For Justice Thurgood
Marshall, the question was “not whether we condone rape or murder, for surely we do
not; it is whether capital punishment is ‘a punishment no longer consistent with our own
self-respect’ and, therefore, violative of the Eighth Amendment.”
285
“The criminal acts
with which we are confronted are ugly, vicious, reprehensible acts,” Marshall wrote,
adding that “[t]heir sheer brutality cannot and should not be minimized.”
286
But to
Marshall, “[t]he ‘cruel and unusual’ language limits the avenues through which
vengeance can be channeled.”
287
“Were this not so,” he wrote, “the language would be
empty and a return to the rack and other tortures would be possible in a given case.”
288
Finding death sentences to be imposed in a discriminatory manner, mostly upon “the
poor” and “the ignorant,” Marshall found evidence that innocent people had been
executed
289
and concluded that “the death penalty is an excessive and unnecessary
punishment.”
290
¶63 Justice Marshall—who, along with Justice Brennan, relentlessly contended that the
death penalty is unconstitutional per se
291
—set forth an extended discussion of his views
on the Cruel and Unusual Punishments Clause. “[T]he Eighth Amendment is our
279
Id. at 303.
280
Furman, 408 U.S. at 306, 309 (Stewart, J., concurring).
281
Id. at 309–10.
282
Id. at 310.
283
Id.
284
Furman, 408 U.S. at 312–13 (White, J., concurring). White found that “the death penalty is exacted
with great infrequency even for the most atrocious crimes and that there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many cases in which it is not.” Id. at 313.
285
Id. at 315 (Marshall, J., concurring).
286
Id.
287
Id. at 345.
288
Id.
289
Id. at 365–66.
290
Id. at 358–59.
291
See MICHAEL MELLO, AGAINST THE DEATH PENALTY: THE RELENTLESS DISSENTS OF JUSTICES
BRENNAN AND MARSHALL (1996); Bigel, supra note 144, at 13; Michael Mello, Adhering to Our Views:
Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 F
LA. ST. U. L.
REV. 591 (1995).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
238
insulation from our baser selves,” Justice Marshall wrote,
292
adding that “whether or not a
punishment is cruel and unusual depends, not on whether its mere mention ‘shocks the
conscience and sense of justice of the people,’ but on whether people who were fully
informed as to the purposes of the penalty and its liabilities would find the penalty
shocking, unjust and unacceptable.”
293
“Assuming knowledge of all the facts presently
available regarding capital punishment,” Marshall wrote, “the average citizen would, in
my opinion, find it shocking to his conscience and sense of justice.”
294
“There is no
rational basis for concluding that capital punishment is not excessive,” Marshall held.
295
“The point has now been reached,” he opined, “at which deference to the legislatures is
tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters
of the Constitution.”
296
¶64 Justice Marshall opined that “a penalty that was permissible at one time in our
Nation’s history is not necessarily permissible today.”
297
He also wrote that capital
punishment “violates the Eighth Amendment because it is morally unacceptable to the
people of the United States at this time in their history.”
298
For Marshall, public opinion
polls were not decisive. Instead, Marshall’s analysis focused on whether people, if fully
informed, would find the death penalty unjust and unacceptable.
299
“So few people have
been executed in the past decade,” Marshall explained, “that capital punishment is a
subject only rarely brought to the attention of the average American.”
300
Accurate
information about capital punishment, Marshall believed, would convince Americans that
the death penalty was “unwise” and “immoral.”
301
Marshall concluded: “In striking
down capital punishment, this Court does not malign our system of government. On the
contrary, it pays homage to it. Only in a free society could right triumph in difficult
times, and could civilization record its magnificent advancement. In recognizing the
humanity of our fellow beings, we pay ourselves the highest tribute.”
302
¶65 On the flip side, the dissenters in Furman saw the majority’s position as an affront
to legislative judgments. Chief Justice Warren Burger found “no authority suggesting
that the Eighth Amendment was intended to purge the law of its retributive element,”
303
and concluded that “the constitutional prohibition against ‘cruel and unusual
punishments’ cannot be construed to bar the imposition of the punishment of death.”
304
He lamented that only one year earlier, in McGautha v. California,
305
the Court had
292
Furman, 408 U.S. at 345 (Marshall, J., concurring).
293
Id. at 361. The notion that an informed electorate would find the death penalty unacceptable has been
termed “the Marshall hypothesis.” See Austin Sarat & Neil Vidmar, Public Opinion, the Death Penalty,
and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 W
IS. L. REV. 171 (1976).
294
Furman, 408 U.S. at 369 (Marshall, J., concurring).
295
Id. at 359.
296
Id. The concept of judicial review of legislative enactments by the Supreme Court dates back more than
200 years. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
297
Furman, 408 U.S. at 329 (Marshall, J., concurring).
298
Id. at 360.
299
Id. at 361–62.
300
Id. at 361 & n.145.
301
Id. at 363.
302
Id. at 371.
303
Id. at 394 (Burger, C.J., dissenting).
304
Id. at 375.
305
402 U.S. 183 (1971). The Supreme Court held in McGautha that the Fourteenth Amendment was not
violated by giving jurors the discretion to decide a criminal defendant’s fate. Id. at 196. The Eighth
Vol. 4:2] John D. Bessler
239
upheld the prevailing sentencing scheme in capital cases, finding it “impossible to say
that committing to the untrammeled discretion of the jury the power to pronounce life or
death in capital cases is offensive to anything in the Constitution.”
306
Burger believed
jurors were “the keystone in our system of criminal justice,”
307
and thought it
“remarkable” that “it should now be suggested that we take the most sensitive and
important of all decisions away from them.”
308
Burger, in fact, saw the rarity of death
sentences as a good thing, not a constitutional infirmity. “The very infrequency of death
penalties imposed by jurors attests their cautious and discriminating reservation of that
penalty for the most extreme cases,” Burger wrote.
309
¶66 The other dissenters echoed Burger’s sentiments. Justice Powell saw the majority
ruling as “the very sort of judgment that the legislative branch is competent to make and
for which the judiciary is ill-equipped,”
310
and Justice Rehnquist wrote that the task of
judging “must surely be approached with the deepest humility and genuine deference to
legislative judgment.”
311
Although Justice Harry Blackmun personally “rejoice[d]” at the
Court’s result,
312
he, too, found himself unable to accept that result “as a matter of
history, of law, or of constitutional pronouncement.”
313
While he agreed that the Cruel
and Unusual Punishments Clause “must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society,” he took umbrage with “the
suddenness of the Court’s perception of progress in the human attitude since decisions of
only a short while ago.”
314
“We should not,” he concluded, “allow our personal
preferences as to the wisdom of legislative and congressional action, or our distaste for
such action, to guide our judicial decision in cases such as these.”
315
¶67 Despite his disagreement with the Supreme Court’s ruling, Justice Blackmun took
time to give a lengthy explanation of his personal opposition to capital punishment.
Foreshadowing his later rejection of capital punishment before his retirement, Blackmun
forcefully wrote:
Cases such as these provide for me an excruciating agony of the spirit. I
yield to no one in the depth of my distaste, antipathy, and, indeed,
Amendment was not at issue in the case.
306
Id. at 207. In the United States, the common-law rule imposing mandatory death sentences on all
convicted murderers had been unpopular. To avoid the problem of jury nullification, state legislatures had
granted juries—who, over time, gradually took over capital sentencing responsibilities from judges—
virtually unlimited discretion. Furman, 408 U.S. at 245–47 (Douglas, J., concurring); McGautha, 402 U.S.
at 199–200 (noting this trend in the law, which began in the 1830s). Today, of course, juries continue to
play the predominant role in death penalty cases in deciding who lives and who dies. See Ring v. Arizona,
536 U.S. 584 (2002).
307
Furman, 408 U.S. at 402 (Burger, C.J., dissenting).
308
Id.
309
Id. Although Chief Justice Burger disagreed with the majority’s ruling, he announced that he was “not
altogether displeased that legislative bodies have been given the opportunity, and indeed unavoidable
responsibility, to make a thorough reevaluation of the entire subject of capital punishment.” Id. at 403. “If
legislatures come to doubt the efficacy of capital punishment,” he added, “they can abolish it, either
completely or on a selective basis.” Id. at 404.
310
Furman, 408 U.S. at 418 (Powell, J., dissenting).
311
Furman, 408 U.S. at 468 (Rehnquist, J., dissenting).
312
Furman, 408 U.S. at 414 (Blackmun, J., dissenting).
313
Id.
314
Id. at 410.
315
Id. at 411.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
240
abhorrence, for the death penalty, with all its aspects of physical distress
and fear and of moral judgment exercised by finite minds. That distaste is
buttressed by a belief that capital punishment serves no useful purpose that
can be demonstrated. For me, it violates childhood’s training and life’s
experiences, and is not compatible with the philosophical convictions I
have been able to develop. It is antagonistic to any sense of “reverence for
life.” Were I a legislator, I would vote against the death penalty for the
policy reasons argued by counsel for the respective petitioners and
expressed and adopted in the several opinions filed by the Justices who
vote to reverse these judgments.
316
B. The Aftermath of Furman
¶68 The Furman decision, though closely divided, was widely seen as the death knell
for America’s death penalty. When the first English-language biography of Cesare
Beccaria was published in Philadelphia in 1973, the well-known University of Chicago
criminologist, Norval Morris, wrote the foreword, referring to America’s death penalty in
the past tense. “Beccaria was, of course, one of the leading early opponents of capital
punishment,” Morris wrote, confidently proclaiming, “[t]he final vindication by the
Supreme Court of his view of the social inutility of this punishment, and of its
unconstitutionality, confirmed the quality of Beccaria’s perceptive vision.”
317
Even many
of the Justices themselves privately predicted that America would never witness another
execution.
318
But state legislatures around the country did not see it that way, with thirty-
five States quickly reenacting death penalty laws—all in response to the Furman
decision.
319
This would lead to yet another round of high-profile, high-stakes litigation
before the nation’s highest court.
¶69 As Americans prepared for Bicentennial picnics and celebrations, the Supreme
Court reversed course on capital punishment in Gregg v. Georgia,
320
handed down on
July 2, 1976. In that case, the Court defined a “cruel” punishment as one “so totally
without penological justification that it results in the gratuitous infliction of suffering.”
321
Though mandatory death penalty laws were struck down that same day in cases
originating in Louisiana and North Carolina,
322
Gregg and two other simultaneously
issued rulings, Jurek v. Texas
323
and Proffit v. Florida,
324
upheld capital punishment
statutes that guided, or channeled, sentencing discretion.
325
Gregg upheld the
316
Id. at 405–06.
317
Norval Morris, Foreword in MAESTRO, supra note 1, at vii–x.
318
DAVID VON DREHLE, AMONG THE LOWEST OF THE DEAD: INSIDE DEATH ROW 162 (1996).
319
BESSLER, DEATH IN THE DARK , supra note 31, at 133.
320
428 U.S. 153 (1976).
321
Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion); see also Hudson v. McMillian, 503 U.S.
1, 5 (1992) (“[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
punishment.”).
322
See Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).
323
428 U.S. 262 (1976).
324
428 U.S. 242 (1976).
325
See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of
Justice’s Role, 26 F
ORDHAM URB. L.J. 347, 374–75 (1999) (“[I]n a set of five capital cases in 1976, the
Supreme Court struck down mandatory death penalty statutes in Woodson and Roberts, while it upheld
‘guided discretion’ statutory structures in Gregg, Proffit, and Jurek.”) (citations omitted). According to the
Vol. 4:2] John D. Bessler
241
constitutionality of Georgia’s new death penalty law, which required jurors to find at
least one “aggravating circumstance” before imposing a death sentence.
326
The Court
ruled that “the concerns expressed in Furman that the penalty of death not be imposed in
an arbitrary or capricious manner can be met by a carefully drafted statute that ensures
that the sentencing authority is given adequate information and guidance.”
327
“No longer
can a jury wantonly and freakishly impose the death sentence; it is always circumscribed
by the legislative guidelines,” the Court ruled, finding that “a large proportion of
American society” continues to regard executions “as an appropriate and necessary
criminal sanction.”
328
¶70 Apart from the recent Eighth Amendment challenge to lethal injection, McCleskey
v. Kemp
329
was the last major systemic challenge to the death penalty to be heard by the
Supreme Court. In that case, an African-American, Warren McCleskey, argued that
Georgia’s capital punishment scheme was administered in a racially discriminatory
fashion. The Court, however, rejected reliance on reliable statistical data from the Baldus
study showing that blacks who killed whites were sentenced to death “at nearly 22 times
the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill
blacks.”
330
The majority opinion held that, troubling statistics notwithstanding,
McCleskey had to prove discriminatory motive in his case, blandly noting that “[a]t most,
the Baldus study indicates a discrepancy that appears to correlate with race,” and stating
with bald resignation that racial disparities in sentencing “are an inevitable part of our
criminal justice system.”
331
Years later, Justice Lewis Powell—the author of the
Supreme Court: “Gregg instructs that capital punishment is excessive when it is grossly out of proportion
to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution
and deterrence of capital crimes.” Kennedy v. Louisiana, 128 S. Ct. 2641, 2661 (2008).
326
Gregg, 428 U.S. at 164–65. One commentator has called the Gregg decision “an act of judicial
reductionism reminiscent of the Dred Scott misjudgment of 1857, in that both cases involved a choice
rejecting the higher in favor of the lower evaluation of human dignity available to the judges.” Dr. James J.
Megivern, Our National Shame: The Death Penalty and the Disuse of Clemency, 28 CAP. U. L. REV. 595,
595 (2000).
327
Gregg, 428 U.S. at 195.
328
Id. at 179, 206–07.
329
481 U.S. 279 (1987).
330
Id. at 327 (Brennan, J., dissenting). The Baldus study showed that “after taking into account some 230
nonracial factors that might legitimately influence a sentence, the jury more likely than not would have
spared McCleskey’s life had his victim been black.” Id. at 325. Multiple studies have shown that those
who kill whites are much more frequently charged with capital crimes and sentenced to death than those
who kill minorities. David C. Baldus & George Woodworth, Race Discrimination in the Administration of
the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990
Research, 39 C
RIM. L. BULL. 194, 202-03 (2003); Maxine Goodman, A Death Penalty Wake-Up Call:
Reducing the Risk of Racial Discrimination in Capital Punishment, 12 B
ERKELEY J. CRIM. L. 29, 37–38
(2007); Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the Eighth
Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 W
M. & MARY L.
REV. 2083, 2106–07 (2004). This very real phenomenon, which demonstrates just how much racial bias
still infuses the death penalty’s administration, has been termed “race-of-the-victim discrimination.” See
David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment:
Reflections on the Interaction of Fact and Perception, 53 D
EPAUL L. REV. 1411, 1411 (2004).
331
McCleskey, 481 U.S. at 312. The Court in McCleskey framed the issue this way: “Statistics at most may
show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk
of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds
of prejudice will influence other criminal trials. The question ‘is at what point that risk becomes
constitutionally unacceptable.’” Id. at 308–09 (citation omitted) (quoting Turner v. Murray, 476 U.S. 28,
36 n.8 (1986)).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
242
McCleskey opinion and the deciding vote in that sharply divided 5-4 decision—would
actually express regret at his vote in the case.
332
¶71 The Gregg and McCleskey cases, which dashed abolitionist hopes that death
sentences would be outlawed once and for all, forced death penalty opponents to open
new fronts. Capital litigation continued unabated in individual cases, as it does today, but
abolitionists had no choice but to find new ways to press their cause. In fact, the
abolition movement—and its companion campaign, seeking a moratorium on
executions—has only intensified in the last two decades.
333
Not only has the abolition
movement attracted new leadership, but it has also witnessed some important milestones
since the late 1980s as death penalty foes have begun appealing directly to the American
public.
¶72 Some specific events stand out, though any movement’s success is always, in the
end, a collective effort. Certainly much credit goes to Sister Helen Prejean for bringing
new energy to the abolitionist fight. Sister Prejean’s 1993 book, Dead Man Walking,
334
became an instant New York Times bestseller and was made into an Academy Award-
winning motion picture; her many speeches and public appearances have inspired a new
generation of abolition leaders.
335
Also, in 1994, Justice Harry Blackmun—still a sitting
member of the Supreme Court—followed up, roundly condemning the death penalty in
one of his judicial opinions. In his now famous dissent in Callins v. Collins,
336
Blackmun
succinctly stated:
From this day forward, I no longer shall tinker with the machinery of
death. For more than 20 years I have endeavored—indeed, I have
struggled—along with a majority of this Court, to develop procedural and
substantive rules that would lend more than the mere appearance of
fairness to the death penalty endeavor. Rather than continue to coddle the
Court’s delusion that the desired level of fairness has been achieved and
332
Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in
Infliction of the Death Penalty, 35 S
ANTA CLARA L. REV. 433, 474 (1995) (citing JOHN C. JEFFRIES, JR.,
JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY 451 (1994)). Justice Powell, shortly after retiring from the
Court, spoke to the Criminal Justice Section of the American Bar Association and later reiterated his view
that “the death penalty may be imposed lawfully under our Constitution.” However, in that speech, Powell
expressed serious concerns relating to the way in which “the system malfunctions” and ended his speech by
pondering if “Congress and the state legislatures should take a serious look at whether the retention of a
punishment that is being enforced only haphazardly is in the public interest.” See Lewis F. Powell, Jr.,
Capital Punishment, 102 H
ARV. L. REV. 1035, 1045–46 (1989). In indicating that he regretted his vote in
McCleskey, Powell expressed the view that the death penalty could not be fairly administered. Kirchmeier,
supra note 222, at 28 & nn.164–65.
333
See James S. Liebman, The New Death Penalty Debate: What’s DNA Got to Do with It?, 33 COLUM.
HUM. RTS. L. REV. 527, 527–28 (2002).
334
HELEN PREJEAN, DEAD MAN WALKING: AN EYEWITNESS ACCOUNT OF THE DEATH PENALTY IN THE
UNITED STATES (1993). Sister Helen Prejean’s moving book and her regular media and public appearances
no doubt jump-started the abolitionist cause, leading to Sister Prejean being nominated four times—in
1998, 1999, 2000 and 2001—for the Nobel Peace Prize.
335
Kirchmeier, supra note 222, at 5, 22–24; see Edward McGlynn Gaffney, Jr., Review Essay, 16 J.L. &
RELIGION 393, 394 (2001) (noting that Dead Man Walking sold 30,000 copies before the book was released
and “ten times that number since”).
336
510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari).
Vol. 4:2] John D. Bessler
243
the need for regulation eviscerated, I feel morally and intellectually
obligated simply to concede that the death penalty experiment has failed.
337
The American Bar Association, after studying the issue, stepped into the fray in 1997,
calling for a moratorium on executions and setting off yet another round of questions and
introspection about America’s death penalty.
338
¶73 Anti-death penalty efforts in the last ten years have been particularly notable. Bills
to abolish the death penalty were considered in twelve states in 1999 alone;
339
in 2000,
Illinois Governor George Ryan imposed a statewide moratorium on executions;
340
and
that same year New Hampshire’s legislature voted for abolition, though the state’s
governor later vetoed the bill.
341
As the twenty-first century began, at least 1000
grassroots organizations were pushing for a moratorium on executions,
342
and in 2007,
the State of New Jersey—led by Governor Jon Corzine—abolished capital punishment
entirely.
343
More recently, Governor Bill Richardson of New Mexico signed a bill
337
Id. Justice Blackmun explained that “[e]xperience has taught us that the constitutional goal of
eliminating arbitrariness and discrimination from the administration of death can never be achieved without
compromising an equally essential component of fundamental fairness—individualized sentencing.” Id. at
1144 (citations omitted). Saying “[t]he path the Court has chosen lessens us all,” Blackmun concluded
“that the decision whether a human being should live or die is so inherently subjectively—rife with all of
life’s understandings, experiences, prejudices, and passions—that it inevitably defies the rationality and
consistency required by the Constitution.” Id. at 1153, 1159.
338
Kara Thompson, The ABA’s Resolution Calling for a Moratorium on Executions: What Jurisdictions
Can Do to Ensure that the Death Penalty Is Imposed Responsibly, 40 A
RIZ. L. REV. 1515, 1515 (1998).
The ABA’s Death Penalty Moratorium Implementation Project, launched in September 2001, is led by its
director, Sarah Turberville, and encourages other bar associations and state government leaders to press for
moratoriums in their jurisdictions. See generally Death Penalty Moratorium Implementation Project,
http://www.abanet.org/moratorium/ (last visited Aug. 31, 2009). The ABA also has a Death Penalty
Representation Project, created in 1986 and directed by Robin Maher, which recruits lawyers for
unrepresented death row inmates. See generally Death Penalty Representation Project,
http://www.abanet.org/deathpenalty/ (last visited Aug. 31, 2009). Many death row inmates, after they
exhaust their direct appeals, suddenly find themselves without counsel and without the financial means to
hire one. See Chris Adams, Condemned to Die Alone: Injustice on Death Row in Alabama, 25 C
HAMPION
12, 13 (Nov. 2001).
339
James S. Liebman & Lawrence C. Marshall, Life Is Better: Justice Stevens and the Narrowed Death
Penalty, 74 F
ORDHAM L. REV. 1607, 1654 (2006).
340
Governor Ryan, a Republican, imposed the moratorium in Illinois after a spate of death row
exonerations in that state. Since the death penalty’s reinstatement in Illinois, twelve executions had been
carried out but a larger number of condemned inmates, thirteen, had been exonerated. Id. at 1655. Ryan
later cleared Illinois’s death row, commuting more than 160 death sentences to life-without-parole terms
and releasing four men—Madison Hobley, Stanley Howard, Aaron Patterson, and LeRoy Orange—from
death row altogether. Those men were released on grounds of innocence and for what Governor Ryan
called “manifest injustice” due to police brutality and coerced confessions. Randall Coyne, Dead Wrong in
Oklahoma, 42 T
ULSA L. REV. 209, 223 n.163 (2006); Hugo Adam Bedau, Michael L. Radelet & Constance
E. Putnam, Convicting the Innocent in Capital Cases: Criteria, Evidence, and Inference, 52 D
RAKE L. REV.
587, 593 (2004); Joshua Herman, Death Denies Due Process: Evaluating Due Process Challenges to the
Federal Death Penalty Act, 53 D
EPAUL L. REV. 1777, 1784 (2004).
341
Kirchmeier, supra note 222, at 3. The New Hampshire legislature was the first state legislature to vote
to abolish the death penalty since the Supreme Court’s decision in Gregg. Id.
342
Id. at 4.
343
Death Penalty Information Center, Legislative Activity,
http://www.deathpenaltyinfo.org/article.php?did=2208 (last visited Aug. 31, 2009). Maryland’s Governor,
Martin O’Malley, also recently called for the death penalty’s abolition. Death Penalty Information Center,
State Action, http://www.deathpenaltyinfo.org/article.php?did=2209 (last visited Aug. 31, 2009).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
244
outlawing executions in that state.
344
Multiple Supreme Court Justices have added their
own voices to the debate, questioning the death penalty’s continued use.
345
Meanwhile, a
spate of exonerations has laid bare the criminal justice system’s human imperfections,
346
with DNA evidence proving beyond any doubt that innocent people have been sent to
death row.
347
¶74 Indeed, as death row exonerations have surpassed one hundred,
348
the number of
death sentences handed out by American juries has fallen precipitously. From 1993 to
2000, more than 200 death sentences were handed out each year, with the number
actually exceeding 300 in 1994, 1995, 1996, and 1998.
349
But the number of American
death sentences fell to 167 in 2001, to 153 by 2003, and to 115 in 2006.
350
This decline
reflects the American public’s growing ambivalence toward the death penalty itself.
¶75 In a 2006 Gallup Poll, when offered a choice, forty-eight percent of survey
respondents chose life-without-parole over death sentences; in contrast, only forty-seven
percent of respondents chose the death penalty.
351
That marked the first time in twenty
344
Human Rights Now, New Mexico Abolishes the Death Penalty,
http://blog.amnestyusa.org/deathpenalty/new-mexico-abolishes-death-penalty/ (last visited Aug. 31, 2009).
345
Justice Ruth Bader Ginsburg expressed her support for a moratorium on executions in April 2001,
saying that she has “yet to see a death penalty case among the dozens coming to the Supreme Court on eve-
of-execution stay applications in which the defendant was well-represented at trial.” Ruth Bader Ginsburg,
In Pursuit of the Public Good: Access to Justice in the United States, 7 WASH. U. J.L. & POL’Y 1, 10
(2001). In July of that same year, Justice Sandra Day O’Connor—in a speech in Minnesota—said there are
“serious questions” about whether the death penalty is administered fairly. O’Connor added that
Minnesotans “must breathe a big sigh of relief every day” because the state no longer has capital
punishment. Kirchmeier, supra note 222, at 30–31. Justice John Paul Stevens also has noted that the
“recent development of reliable scientific evidentiary methods has made it possible to establish
conclusively that a disturbing number of persons who had been sentenced to death were actually innocent.”
Craig M. Cooley, Mapping the Monster’s Mental Health and Social History: Why Capital Defense
Attorneys and Public Defender Death Penalty Units Require the Services of Mitigation Specialists, 30
O
KLA. CITY U. L. REV. 23, 29 n.25 (2005). Federal judges in the lower courts also have begun to speak out
against the death penalty. Kirchmeier, supra note 222, at 34.
346
See Barry Scheck, Innocence, Race, and the Death Penalty, 50 HOW. L.J. 445 (2007); Bruce P. Smith,
The History of Wrongful Execution, 56 H
ASTINGS L.J. 1185 (2005); Bedau et al., supra note 340. One
study found that from 1989 to 2003 there were 205 exonerations of defendants convicted of murder. See
Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery & Sujata Patil, Exonerations
in the United States, 1989 through 2003, 95 J.
OF CRIM. L. & CRIMINOLOGY 523, 528 (2005). The founding
fathers were, of course, equally concerned with the problem of wrongful convictions. See 9 A
LBERT
HENRY SMYTH, THE WRITINGS OF BENJAMIN FRANKLIN 293 (1906) (“That it is better 100 guilty Persons
should escape than that one innocent Person should suffer, is a Maxim that has been long and generally
approved.”).
347
The Innocence Project reports that there have been 220 post-conviction DNA exonerations in the United
States and that 17 of the 220 people exonerated served time on death row. Innocence Project, Facts on
Post-Conviction DNA Exonerations, www.innocenceproject.org/Content/351.php (last visited Aug. 31,
2009). One national study, of death sentences imposed from 1973 to 1995, also found an extraordinarily
high reversal rate in capital cases. Of the capital judgments that were reversed and retried, eighty-two
percent of them resulted in a sentence less than death or no sentence whatsoever. Seven percent of the
reversals led to “not guilty” determinations on retrial. J
AMES S. LIEBMAN, JEFFREY FAGAN & VALERIE
WEST, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000), reprinted in part in James
S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 T
EX. L. REV. 1839,
1846–49, 1852 (2000).
348
The Death Penalty Information Center lists 129 inmates who have been released from death row since
1973. Death Penalty Information Center, Innocence: Lists of Those Freed from Death Row,
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110 (last visited Aug. 31, 2009).
349
See DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY 3 (Jan. 30, 2009).
350
Id.
351
DEATH PENALTY INFO. CTR, A CRISIS OF CONFIDENCE: AMERICANS’ DOUBTS ABOUT THE DEATH
Vol. 4:2] John D. Bessler
245
years that the death penalty came in second place.
352
A 2007 poll also found that eighty-
seven percent of Americans believe innocent people have been executed in recent years;
that sixty percent of respondents either strengthened their opposition to the death penalty
or reduced their support for it because of news of wrongful convictions; and that fifty-
eight percent of respondents were supportive of imposing a moratorium on executions.
353
V. THE INFLUENCE OF INTERNATIONAL LAW
A. The Right to “Life” in International Human Rights Law
¶76 Before World War II, international law failed to systematically address human
rights issues and was silent on the death penalty.
354
Sovereign states treated their citizens
as they pleased, with Nazi courts and dictators like Stalin routinely imposing death
sentences.
355
Hitler and the Holocaust, however, changed all that, sparking worldwide
calls for an end to such atrocities.
356
The United Nations Charter, requiring states to
PENALTY 7 (2007). Every death penalty state now has a life-without-parole sentencing law in place. Id. at
7–8, 17. Texas, the last state to enact such a law, did so in 2005. Id. at 8.
352
Id. at 7.
353
Id. at 5, 10, 15. That same poll found thirty-nine percent of respondents—including disproportionate
numbers of African Americans, Catholics and women—believed that they would be disqualified from
serving on a jury in a death penalty case because of their moral beliefs. Id. at 2. Unfortunately, that poll
result reflects a disturbing reality. While the Supreme Court has said that the death penalty should reflect
the “conscience of the community,” Witherspoon v. Illinois, 391 U.S. 510, 519 (1968), it allows capital
juries to be “death-qualified.” See Lockhart v. McCree, 476 U.S. 162, 165 (1986) (holding that the
Constitution does not “prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of
prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially
impair the performance of their duties as jurors at the sentencing phase of the trial”); Buchanan v.
Kentucky, 483 U.S. 402, 415 (1987) (“The Court’s reasoning in McCree requires rejection of petitioner’s
claim that ‘death qualification’ violated his right to a jury selected from a representative cross section of the
community. It was explained in McCree that the fair cross section requirement applies only to venires, not
to petit juries.”); see also Deborah L. Mahoney, Capital Defendants Permitted Reverse-Witherspoon “Life
Qualifying” Questions on Voir Dire, 32 W
ASHBURN L.J. 278, n.6 (1992) (“Every state that allows capital
punishment permits juries to be ‘death qualified.’”).
As a result, scores of prospective jurors—including many women and minorities who find capital
punishment morally repugnant or unnecessary—are excluded from sentencing juries. See Cochran, supra
note 216, at 1444; Sheri Lynn Johnson, Race and Recalcitrance: The Miller-El Remands, 5 O
HIO STATE J.
CRIM. L. 131, 135–36 (2007) (describing the policy of the Dallas County District Attorney’s Office at the
time of El-Miller’s trial of excluding blacks from juries and noting that the state in Miller-El’s case used
peremptory challenges to exclude ninety-one percent of the eligible black jurors).
354
A notable exception was international humanitarian law, or what is commonly known as “the law of
war.” The 1907 Hague Regulations codified fifty-six articles on the laws and customs of land warfare, with
Article 23 proscribing the random and arbitrary execution of prisoners of war. Abuses during World War I
also led to the prohibition on reprisals against prisoners of war in Article 2 of the 1929 Geneva Convention
on Prisoners of War. Burrus M. Carnahan, Reason, Retaliation, and Rhetoric: Jefferson and the Quest for
Humanity in War, 139 M
IL. L. REV. 83, 129–30 nn.178–79 (1993) (citing 1907 Hague Regulations,
annexed to the Hague Convention IV, on the Laws and Customs of War on Land, Oct. 18, 2007, 36 Stat.
2277, T.S. 539 & Geneva Convention on Prisoners of War, July 27, 1929, 47 Stat. 2021, T.S. 847);
S
CHABAS, supra note 3, at 10, 366 (citing the 1907 Hague Regulations and the 1929 Geneva Convention).
355
SCHABAS, supra note 3, at 238; Robert A. Kushen, The Death Penalty and the Crisis of Criminal Justice
in Russia, 19 B
ROOK. J. INT’L L. 523, 530–31 (1993). One estimate puts the number of executions during
Stalin’s reign at one million. Id. at 531 n.24; compare Kiriakova, supra note 33, at 488 (“From 1934 until
Stalin’s death in 1953 the death penalty was applied frequently in an extrajudicial manner. By some
accounts, one million executions occurred in 1937–38.”).
356
SCHABAS, supra note 3, at 1. In Mein Kampf, Adolf Hitler, an avid death penalty supporter, wrote
nonchalantly of the execution of 10,000 people. A
DOLF HITLER, MEIN KAMPF 545 (1943). Nazi war
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
246
promote human rights, was adopted in 1945,
357
and in 1948 the post-war Universal
Declaration of Human Rights proudly proclaimed, “[e]veryone has the right to life,
liberty and security of the person.”
358
That landmark declaration was shepherded through
the United Nations by Eleanor Roosevelt,
359
who successfully moved to delete any
reference to the death penalty in that document because of the “movement underway in
some states to wipe out the death penalty completely.”
360
¶77 Other instruments of international law have also sought to end the culture of State
impunity and to safeguard the right to life, thus shaping world opinion. The Geneva
Conventions, for example, provide procedural protections for prisoners of war and
civilians relative to the imposition of the death penalty.
361
One article states that “[t]o the
maximum extent feasible, the Parties to the conflict shall endeavour to avoid the
pronouncement of the death penalty on pregnant women or mothers having dependent
infants, for an offence relating to the armed conflict” and that “[t]he death penalty for
such offences shall not be executed on such women.”
362
Likewise, another article states:
“The death penalty for an offence related to the armed conflict shall not be executed on
persons who had not attained the age of eighteen years at the time the offence was
committed.”
363
¶78 The United States itself has recognized the “right to life” in the context of
international law. In 1966, the United Nations General Assembly adopted a binding
treaty, the International Covenant on Civil and Political Rights (ICCPR), which
specifically instructs that “[e]very human being has the inherent right to life” and
criminals, of course, would ultimately be put on trial at Nuremberg, with Nazi officials accused, among
other things, of cavalierly resorting to the use of death penalty. The Nuremburg Tribunal’s charter
authorized capital punishment, and several Nazi leaders were in fact executed as a result of that tribunal’s
judgments. S
CHABAS, supra note 3, at 6, 37, 236–39.
357
U.N. Charter art. 55(c).
358
Universal Declaration of Human Rights, G.A. Res. 217A, at art. 3, U.N. GAOR, 3d Sess., 1st plen. mtg.,
U.N. Doc A/810 (Dec. 12, 1948).
359
Eleanor Roosevelt was elected chair of the United Nations Commission on Human Rights, and she also
headed the United States delegation to the Third Committee of the General Assembly, which debated the
final draft of the Universal Declaration before its final adoption in 1948. See William A. Schabas,
International Law, the United States of America and Capital Punishment, 31 S
UFFOLK TRANSNAT’L L.
REV. 377, 381 (2008).
360
U.N. ESCOR, 1st Sess., 2d mtg. at 10, U.N. Doc. E/CN.4/AC.1/SR.2 (1947); SCHABAS, supra note 3, at
383–84 (“In the Drafting Committee, Eleanor Roosevelt commented that there was a movement underway
in some states to abolish the death penalty. She suggested that it might be better not to use the term ‘death
penalty’ in the Universal Declaration.”); see also Kevin Reed, Richard Wilson & Joan Fitzpatrick, Panel
Discussion: Race, Criminal Justice and the Death Penalty, 15 W
HITTIER L. REV. 395, 415 (1994).
Notably, Roosevelt also played a role in condemning lynchings, calling them unlawful and unacceptable
and working behind the scenes—albeit unsuccessfully—for a federal anti-lynching bill. See M
ARY ANN
GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS 150, 202 (2001); Martha L. Minow, Breaking the Law: Lawyers and Clients in Struggles for Social
Change, 52 U.
PITT. L. REV. 723, 725 (1991).
361
SCHABAS, supra note 3, at 414–15 (citing Articles 3, 87, 100, 101 and 107 of the Geneva Convention
Relative to the Treatment of Prisoners of War and Articles 3, 68, 74 and 75 of the Geneva Convention
Relative to the Protection of Civilians, both of which entered into force in 1950).
362
Id. at 420 (citing Article 76 to Protocol Additional I to the 1949 Geneva Conventions and Relating to the
Protection of Victims of International Armed Conflicts).
363
Id. (citing Article 77 to Protocol Additional I). In addition, Protocol Additional II to the 1949 Geneva
Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts provides:
“The death penalty shall not be pronounced on persons who were under the age of eighteen years at the
time of the offence and shall not be carried out on pregnant women or mothers of young children.” Id. at
421.
Vol. 4:2] John D. Bessler
247
provides that “[n]o one shall be arbitrarily deprived of his life.”
364
The United States
ratified that treaty,
365
which also prohibits “torture” and “cruel, inhuman or degrading
treatment or punishment”
366
and bars the execution of pregnant women and those
committing crimes below the age of eighteen.
367
¶79 The Optional Protocol to the ICCPR, entered into force in 1976,
368
authorized
individual communications or petitions to the Human Rights Committee for treaty
violations,
369
and the Second Optional Protocol, adopted at the United Nations in 1989, is
specifically aimed at the abolition of the death penalty.
370
The United Nations General
Assembly has also adopted resolutions pertaining to the death penalty’s abolition,
371
with
364
International Covenant on Civil and Political Rights (“ICCPR”), art. 6(1), Mar. 23, 1976, 993 U.N.T.S.
171. That treaty further states: “In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the Convention
on the Prevention and Punishment of the Crime of Genocide.” Id., at art. 6(2).
365
The United States ratified the ICCPR in 1992, though it made reservations to Articles 6 and 7 of the
treaty. S
CHABAS, supra note 3, at 79–80.
366
ICCPR, art. 7. The United States reservation to Article 7 indicated that the United States considered
itself bound by Article 7 only to the extent that “cruel, inhuman or degrading treatment or punishment”
means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth or Fourteenth
Amendments to the U.S. Constitution. SCHABAS, supra note 3, at 382. The United States also entered a
global reservation to the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment, a treaty the United States ratified in 1994. Id. at 196, 403. In that reservation,
the United States government stated: “The United States understands that international law does not
prohibit the death penalty, and does not consider this convention to restrict or prohibit the United States
from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the
Constitution of the United States, including any constitutional period of confinement prior to the imposition
of the death penalty.” Id. at 403.
367
ICCPR, art. 6(5). The U.S. reservation to the treaty stated: “The United States reserves the right, subject
to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman)
duly convicted under existing or future laws permitting the imposition of capital punishment, including
such punishment for crimes committed by persons below eighteen years of age.”
SCHABAS, supra note 3, at
382.
368
The United States has not ratified this Optional Protocol. Office of the High Commisioner of Human
Rights, Status of the Ratifications of the Principal Human Rights Treaties,
http://www.unhchr.ch/pdf/report.pdf (last visited Aug. 31, 2009).
369
More than one hundred communications have been presented to the Human Rights Committee thus far
by persons facing or threatened by the death penalty. S
CHABAS, supra note 3, at 389.
370
Id. at 23, 180. The Second Optional Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty, entered into force on July 11, 1991, states in Article 1(1):
“No one within the jurisdiction of a State Party to the present Optional Protocol shall be executed.” Id. at
397. Article 2(1) of the Second Optional Protocol further provides: “No reservation is admissible to the
present Protocol, except for a reservation made at the time of ratification or accession that provides for the
application of the death penalty in time of war pursuant to a conviction for a most serious crime of a
military nature committed during wartime.” Id. The United States has not ratified the Second Optional
Protocol either. Office of the High Commisioner of Human Rights, Status of the Ratifications of the
Principal Human Rights Treaties, http://www.unhchr.ch/pdf/report.pdf (last visited Aug. 31, 2009).
371
In 1971, the U.N. General Assembly adopted a resolution asserting that “the main objective to be
pursued is that of progressively restricting the number of offenses for which capital punishment may be
imposed,” with the aim of “abolishing this punishment in all countries.” G.A. Res. 2857 (XXVI), U.N.
GAOR, 26th Sess., Supp. No. 29, at 94, U.N. Doc. A/8429 (1971). United Nations Secretary-General Kofi
Annan also expressed his support for a moratorium on executions in 2000 when a petition signed by 3.2
million people was presented to him. Kirchmeier, supra note 222, at 69. “The forfeiture of life,” he
declared, “is too absolute, too irreversible, for one human being to inflict it on another, even when backed
by legal process. And I believe that future generations, throughout the world, will come to agree.” Harold
Hongju Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C.
DAVIS L. REV.
1085, 1131 (2002).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
248
one U.N. body, the Economic and Social Council, adopting specific safeguards pertaining
to the death penalty’s imposition and use.
372
Indeed, in December 2007, the General
Assembly passed a resolution calling upon member states that retain the death penalty
“[t]o establish a moratorium on executions with a view to abolishing the death
penalty.”
373
B. International and Regional Human Rights Treaties
¶80 The U.N. Convention on the Rights of the Child (CRC), entered into force in
1990
374
and ratified by every country save the United States and Somalia,
375
expressly
forbade capital punishment for juvenile offenders. According to Article 37 of the CRC:
“No child shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment. Neither capital punishment nor life imprisonment shall be imposed for
offences committed by persons below 18 years of age.”
376
This treaty, barring the
execution of children and highlighting how out of step the United States has become in
the world’s eyes, no doubt played a role in the Supreme Court’s decision to bar the
practice.
377
¶81 International tribunals formed to prosecute genocide, crimes against humanity, and
war crimes also no longer allow death sentences. Article 77 of the Rome Statute of the
International Criminal Court, which came into force in 2002, made “life imprisonment”
the maximum penalty.
378
Other ad hoc tribunals of international justice, including the
ones for Rwanda and the former Yugoslavia, have not allowed the imposition of the
372
The “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” drafted by
the U.N. Committee on Crime Prevention and Control, provide in part: “In countries which have not
abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being
understood that their scope should not go beyond intentional crimes, with lethal or other extremely grave
consequences.” S
CHABAS, supra note 3, at 155, 169–73, 413. Those Safeguards, which are not a treaty,
also address procedural issues, such as the burden of proof necessary for the death penalty’s imposition and
the rights of those convicted to appeal and seek pardon or commutation of sentence. Id. at 173, 413. The
Safeguards further provide: “Persons below 18 years of age at the time of the commission of the crime shall
not be sentenced to death, nor shall the death penalty be carried out on pregnant women, or on new mothers
or on persons who have become insane.” Id. at 413. The Safeguards also provide: “Where capital
punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.” Id.
373
Moratorium on the Use of the Death Penalty, G.A. Res. 62/149, U.N. Doc A/RES/62/149 (Dec. 18,
2007).
374
SCHABAS, supra note 3, at 406.
375
Emily H. Wood, Economic, Social, and Cultural Rights and the Right to Education in American
Jurisprudence: Barriers and Approaches to Implementation, 19 H
ASTINGS WOMEN’S L.J. 303, 310 (2008).
376
SCHABAS, supra note 3, at 406 (citing Convention on the Rights of the Child, G.A. Res. 45/25, art. 37,
U.N. Doc. A/RES/44/25 (Dec. 12, 1989)).
377
See Roper v. Simmons, 543 U.S. 551, 577 (2005) (citing the CRC).
378
SCHABAS, supra note 3, at 235, 251, 422. This is in stark contrast to the prior practices of war crimes
tribunals. Not only did executions take place as a result of the Nuremburg judgments, but also Union
soldiers, for example, were executed with some regularity during President Lincoln’s administration under
the Lieber Code, an early codification of the laws and customs of war. Id. at 235, 258. The United States
signed onto the Rome Statute, thus agreeing to participate in the International Criminal Court, on December
31, 2000, the last day it was permissible to do so. See Megan E. Lantto, The United States and the
International Criminal Court: A Permanent Divide?, 31 S
UFFOLK TRANSNAT’L L. REV. 619, 619 (2008).
The Rome Statute, however, has never been ratified by the United States, and in 2002, President George W.
Bush instructed John Bolton, the Under Secretary of State for Arms Control and International Security, to
notify Kofi Annan of the United States nullification of any intention to participate with the International
Criminal Court. Id. at 619, 626.
Vol. 4:2] John D. Bessler
249
death penalty either.
379
This means that the world’s worst human rights offenders—
including men such as Slobodan Milosevic, whose trial in The Hague came to an abrupt
end after he was found dead in his cell
380
—no longer face capital charges.
¶82 Regional human rights systems have also contributed to reform efforts by adopting
treaties restricting the death penalty’s use. In Europe, Protocol No. 6 to the Convention
for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition
of the Death Penalty came into force in 1985.
381
That protocol, now ratified by forty-six
countries,
382
explicitly provides in Article 1: “The death penalty shall be abolished. No
one shall be condemned to such penalty or executed.”
383
The only circumstances under
which the death penalty can be imposed under Protocol No. 6 are set forth in Article 2,
which reads: “A State may make provision in its law for the death penalty in respect of
acts committed in time of war or of imminent threat of war; such penalty shall be applied
only in the instances laid down in the law and in accordance with its provisions.”
384
¶83 But Europe went even further at the dawn of the new century. Protocol No. 13 to
the European Convention, adopted in 2003 and quickly ratified by forty countries,
385
now
unequivocally—even in wartime—bars the punishment of death. It eliminates any caveat
or exception and simply reads: “The death penalty shall be abolished. No one shall be
condemned to such penalty or executed.”
386
The European Union now actively pushes
for the death penalty’s abolition elsewhere, including in China and the United States,
379
SCHABAS, supra note 3, at 247, 356. The Statute of the Special Court for Sierra Leone also makes a
term of imprisonment the maximum penalty. See Olympia Bekou & Sangeeta Shah, Realising the
Potential of the International Criminal Court: The African Experience, 6 H
UM. RTS. L. REV. 499, 519
(2006).
380
Lawrence G. Albrecht et al., International Human Rights, 41 INT’L LAW. 643, 647 (2007).
381
SCHABAS, supra note 3, at 14, 368, 424–26. The European Convention on Human Rights, which came
into force in 1953, protects “[e]veryone’s right to life” and provides that “[n]o one shall be subjected to
torture or to inhuman or degrading treatment or punishment.” Id.
at 259, 423 (citing Council of Europe,
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on
Human Rights) art. 2 & 3, Nov. 4, 1950, Europ. T.S. 005). That treaty, when promulgated, contemplated
the death penalty’s infliction, providing that “[n]o one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of a crime for which this penalty is provided by
law.” Id. at 423 (citing European Convention on Human Rights, supra, at art. 2).
382
Council of Europe, Ratification Information on Protocol No. 6 to the Convention for the Protection of
Human Rights and Fundamental Freedoms,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=114&CM=8&DF=9/14/2008&CL=ENG
(last visited Aug. 31, 2009). Russia signed Protocol No. 6 in 1997, but has yet to ratify the protocol. Id.
383
SCHABAS, supra note 3, at 424 (citing Council of Europe, Protocol No. 6 to the Convention for the
Protection of Human Rights and Fundamental Freedoms art. 1, Apr. 28, 1983, Europ. T.S. 114).
384
Id.
385
Council of Europe, Ratification Information on Protocol No. 13 to the Convention for the Protection of
Human Rights and Fundamental Freedoms,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=187&CM=8&DF=9/14/2008&CL=ENG
(last visited Aug. 31, 2009). Five countries—Armenia, Italy, Latvia, Poland and Spain—have signed but
not yet ratified Protocol No. 13. Id.
386
Council of Europe, Protocol No. 13 to the Convention for the Protection of Human Rights and
Fundamental Freedoms art. 1, May 26, 2003, Europ. T.S. 187, 2246 U.N.T.S. 112, available at
http://conventions.coe.int/treaty/EN/Treaties/html/187.htm. The Charter of Fundamental Rights of the
European Union also provides that “[e]veryone has the right to life,” that “[n]o one shall be condemned to
the death penalty, or executed,” and that “[n]o one may be removed, expelled or extradited to a State where
there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or
degrading treatment or punishment.” S
CHABAS, supra note 3, at 430 (citing Charter of Fundamental Rights
of the European Union, art. 2 &19, 2000 O.J. (C 364) 1).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
250
spending substantial sums of money towards that end and even appearing as amicus
curiae before the Supreme Court.
387
¶84 A large number of countries in the Organization of American States (OAS) have
also abolished the death penalty.
388
The Inter-American human rights system specifically
protects “the right to life,”
389
and the American Convention on Human Rights bars the
death penalty’s infliction in certain instances.
390
Article 4(2) of that Convention provides
that “[i]n countries that have not abolished the death penalty, it may be imposed only for
the most serious crimes.”
391
Article 4(3) states that “[t]he death penalty shall not be
reestablished in states that have abolished it.”
392
Article 4(4) states that “[i]n no case
shall capital punishment be inflicted for political offenses or related common crimes.”
393
And Article 4(5) reads: “Capital punishment shall not be imposed upon persons who, at
the time the crime was committed, were under 18 years of age or over 70 years of age;
nor shall it be applied to pregnant women.”
394
An Additional Protocol to the American
Convention on Human Rights to Abolish the Death Penalty, entered into force in 1991,
categorically forbids the death penalty in times of peace.
395
¶85 African and Arab countries have also promulgated treaties that impose certain
restrictions on the death penalty’s imposition. The African Charter on the Rights and
Welfare of the Child, which came into force in 1999, states that “[e]very child has an
inherent right to life” and further provides: “Death sentence shall not be pronounced for
crimes committed by children.”
396
The Arab Charter on Human Rights, which entered
387
SCHABAS, supra note 3, at 306–07.
388
Id. at 332.
389
In particular, the American Declaration on the Rights and Duties of Man, adopted in 1948 (the same
year the United States signed the OAS charter), provides that “[e]very human being has the right to life,
liberty and the security of his person.” Id. at 435 (citing Article 1). The American Convention on Human
Rights, which the United States signed but never ratified, further provides: “Every person has the right to
have his life respected. This right shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of life.” S
CHABAS, supra note 3, at 436 (citing Article 4);
Mirah A. Horowitz, Kids Who Kill: A Critique of How the American Legal System Deals with Juveniles
Who Commit Homicide, 63 L
AW & CONTEMP. PROBS. 133, 152 (2000).
390
Because the United States has not ratified the American Convention on Human Rights, it has not
subjected itself to the jurisdiction of the Inter-American Human Rights Court. Reed, Wilson & Fitzpatrick,
supra note 360, at 401; see also Colm Campbell & Ita Connolly, A Deadly Complexity: Law, Social
Movements and Political Violence, 16 MINN. J. INT’L L. 265, 308 (2007) (noting that because the United
States is not a party to the American Convention on Human Rights and has not submitted itself to the
jurisdiction of the Inter-American Human Rights Court, cases involving U.S. human rights obligations can
only be heard by the Inter-American Commission on Human Rights).
391
SCHABAS, supra note 3, at 436.
392
Id. This provision means that, once abolished by a signatory country, the death penalty cannot be
brought back, effectively making such countries “abolitionist at international law.” Id. at 332. More than
twenty countries have now ratified the American Convention on Human Rights. Organization of American
States, Ratification Information on the American Convention on Human Rights (Pact of San Jose, Costa
Rica), http://www.oas.org/juridico/english/Sigs/b-32.html (last visited Aug. 31, 2009).
393
SCHABAS, supra note 3, at 436.
394
Id.
395
Id. at 438–39. As of 2008, eleven countries had ratified the Additional Protocol. Organization of
American States, Ratification Information on the Protocol to the American Convention on Human Rights to
Abolish the Death Penalty, http://www.oas.org/juridico/english/Sigs/a-53.html (last visited Aug. 31, 2009).
The most recent country to ratify the Additional Protocol was Chile in 2008. Id.
396
SCHABAS, supra note 3, at 360, 441. A child is defined as any human being below the age of eighteen.
Id. at 361. As of 2008, twenty-one African countries had ratified the African Charter on the Rights and
Welfare of the Child. University of Minnisota, Human Rights Library, Ratification Information on the
African Charter on the Rights and Welfare of the Child,
Vol. 4:2] John D. Bessler
251
into force in 2008,
397
states that “[e]very human being has the inherent right to life,” that
“[t]his right shall be protected by law,” and that “[n]o one shall be arbitrarily deprived of
his life.”
398
The Arab Charter further provides that “[s]entence of death may be imposed
only for the most serious crimes,” and that “[a]nyone sentenced to death shall have the
right to seek pardon or commutation of the sentence.”
399
In addition, the Arab Charter
states that “[s]entence of death shall not be imposed on persons under 18 years of age,
unless otherwise stipulated in the laws in force at the time of the commission of the
crime,” and that “[t]he death penalty shall not be inflicted on a pregnant woman prior to
her delivery or on a nursing mother within two years from the date of her delivery.”
400
C. The Global Decline of the Death Penalty
¶86 Around the globe, the death penalty is being utilized in fewer countries—and for
fewer and fewer offenses. Saudi Arabia still beheads people,
401
and China still frequently
conducts executions
402
using mobile execution vehicles to facilitate the harvest of organs
for sale on the black market.
403
It is increasingly clear, however, that capital punishment
is falling out of favor around the world. According to Amnesty International, in 2008 at
least 8864 people were sentenced to death in fifty-two countries. Perhaps more telling,
only twenty-five countries actually carried out executions in 2008, and of the 2390
known executions that year ninety-three percent of them took place in just five nations:
China, Iran, Saudia Arabia, Pakistan, and the United States.
404
In 1999, the African
Commission on Human and Peoples’ Rights took the extraordinary step of adopting a
http://www1.umn.edu/humanrts/instree/afchildratifications.html (last visited Aug. 31, 2009).
The African Charter of Human and Peoples’ Rights makes no mention of the death penalty, but does
contain more general protections. Article 4 of that Charter provides: “Human beings are inviolable. Every
human being shall be entitled to respect for his life and the integrity of his person. No one may be
arbitrarily deprived of this right.” S
CHABAS, supra note 3, at 15, 355, 440. Article 5 further provides:
“Every individual shall have the right to the respect of the dignity inherent in a human being and to the
recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” Id. at 440.
397
On January 30, 2008, the U.N. High Commissioner for Human Rights, Louise Arbour, announced that
the Arab Charter on Human Rights had entered into force following its seventh ratification. Louise Arbour,
U.N. High Commissioner for Human Rights, Statement on the Entry into Force of the Arab Charter on
Human Rights (Jan. 30, 2008).
398
League of Arab States, Revised Arab Charter on Human Rights art. 5, May 22, 2004, reprinted in 12
I
NT’L HUM. RTS. REP. 893 (2005), available at
http://www1.umn.edu/humanrts/instree/loas2005.html?msource=UNWDEC19001&tr=y&auid=3337655.
399
Id. at art. 6.
400
Id. at art. 7.
401
Rachel Saloom, Is Beheading Permissible under Islamic Law? Comparing Terrorist Jihad and the Saudi
Arabian Death Penalty, 10 UCLA
J. INT’L L. & FOREIGN AFF. 221, 244–45 (2005) (“Saudi Arabia has been
called the beheading capital of the world. The exact numbers of beheadings in Saudi Arabia are unknown
because of the secretive nature of the Saudi regime. However, Amnesty International claims there were at
least 560 executions in Saudi Arabia from 1990-97.”).
402
AMNESTY INTERNATIONAL, DEATH SENTENCES AND EXECUTIONS IN 2008, at 8, available at
http://www.amnestyusa.org/abolish/annual_report/DeathSentencesExecutions2008.pdf. Amnesty
International reports that China carried out at least 1718 executions in 2008. Id.
403
China Makes Ultimate Punishment Mobile, USA TODAY, June 15, 2006, available at
http://www.usatoday.com/news/world/2006-06-14-death-van_x.htm.
404
AMNESTY INTERNATIONAL, DEATH SENTENCES AND EXECUTIONS IN 2008, at 5, available at
http://www.amnestyusa.org/abolish/annual_report/DeathSentencesExecutions2008.pdf.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
252
resolution specifically urging African countries to put a moratorium on executions and to
“reflect on the possibility of abolishing the death penalty.”
405
¶87 In Africa and Asia, the death penalty is still in use, but the abolitionist movement is
taking hold even on those continents. “An emerging international trend towards abolition
has found support on African soil,” writes Frans Vilgoen at the University of Pretoria’s
Centre for Human Rights.
406
Although death sentences under Islamic, or Shari’a, law are
still common in places like Nigeria and Sudan,
407
the country of Liberia—with its historic
U.S. ties
408
—chose to ban executions in 2005, further lengthening the list of abolitionist
countries in Africa.
409
In South Korea, a strong anti-death penalty campaign has
emerged, and no execution has taken place since December 1997.
410
Executions are also
waning in Central and South America,
411
though many Caribbean countries continue to
resist legal reform.
412
Even China—the world’s execution leader
413
—is considering
reform.
414
405
SCHABAS, supra note 3, at 357–58.
406
Frans Vilgoen, Preface to LILIAN CHENWI, TOWARDS THE ABOLITION OF THE DEATH PENALTY IN
AFRICA: A HUMAN RIGHTS PERSPECTIVE, at vii (2007); see also CHENWI, supra, at 7–8 (noting that the
African Commission on Human and Peoples’ Rights has acknowledged the trend toward abolition of the
death penalty and has been supportive of that trend by encouraging African countries to refrain from using
capital punishment).
407
Id. at 24 (“Regarding the Islamic system, capital punishment is considered an integral part of the law.”).
Under Islamic law, many acts are punishable by death—and offenders are often punished in barbaric ways.
See Jennifer F. Cohen, Islamic Law in Iran: Can It Protect the International Legal Right of Freedom of
Religion and Belief?, 9 C
HI. J. INT’L L. 247, 260 (2008) (noting that “apostasy” is punishable by death);
Nicola Browne et al., Capital Punishment and Mental Health Issues: Global Examples, 25 S
T. LOUIS U.
PUB. L. REV. 383, 391 (2006) (noting that in Afghanistan converting to Christianity is a crime punishable
by death); C
HENWI, supra note 406, at 48 (“Some countries in Africa, especially in North Africa, maintain
the death penalty for sexual offences owing to the influence of Islamic Law. . . . Capital sexual offences
include: adultery—where the offender is married; conviction for homosexuality for the third time; incest or
gross indecency that amounts to adultery or homosexuality; abduction combined with rape; aggravated rape
or rape of a minor; sodomy, and unlawful sexual intercourse with a prisoner.”); id. at 49 (“The death
penalty for religious dissent is common in Muslim countries.”); id. at 140 (noting that “stoning” for
“offences such as adultery” is “common in states that apply the Shari’a law,” including Mauritania, Nigeria
and Sudan).
408
See Rena L. Scott, Moving from Impunity to Accountability in Post-War Liberia: Possibilities, Cautions,
and Challenges, 33 I
NT’L J. LEGAL INFO. 345, 352–53 (2005).
409
The number of African countries that have abolished capital punishment is growing as the number of
executions decline. C
HENWI, supra note 406, at 29–30 (“Thirteen countries have abolished the death
penalty for all crimes, 19 have abolished it in practice and 21 still retain and use the death penalty.”).
Presidents in Malawi and Zambia have actually refused to sign death warrants. Id. at 54.
410
BAE, supra note 47, at 64–77.
411
ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 61, 64–65 (4th
ed. 2008).
412
See Brian D. Tittemore, The Mandatory Death Penalty in the Commonwealth Caribbean and the Inter-
American Human Rights System: An Evolution in the Development and Implementation of International
Human Rights Protections, 13 W
M. & MARY BILL RTS. J. 445 (2004).
413
More than sixty crimes—including economic and non-violent crimes—are punishable by death in
China, a country that reportedly executes more people than the rest of the world’s nations combined.
C
OYNE & ENTZEROTH, supra note 269, at 1036; Matthew Bloom, A Comparative Analysis of the United
States’s Response to Extradition Requests from China, 33 Y
ALE J. INT’L L. 177, 179 n.11 (2008); see also
C
OYNE & ENTZEROTH, supra note 269, at 1038 (noting the annual number of executions in China is
estimated to be 10,000 or 15,000).
414
See HOOD & HOYLE, supra note 411, at 100 (“the last few years have witnessed a distinct change in the
discourse, evidenced by the willingness of the Chinese authorities to discuss the death penalty in human
rights seminars and dialogues with European countries…Abolition of the death penalty for all economic
crimes is now being openly discussed and a book of essays entitled The Road to Abolition, as a signifier of
Vol. 4:2] John D. Bessler
253
¶88 America’s death penalty, plagued by wrongful convictions, legal errors, and the
intractable problems of arbitrariness, unfairness and racial bias,
415
has come under intense
criticism both at home and abroad. Not only do executions raise all manner of moral
questions, but death sentences cost more to carry out than life-without-parole sentences—
and oftentimes condemned prisoners die of natural causes due to inevitable delays.
416
A
recent report on California’s death penalty, issued in 2008, found that thirty persons have
been on California’s death row for more than twenty-five years; 119 for more than twenty
years; and 240 for more than fifteen years.
417
The national average for time elapsing
between sentencing and execution is approximately twelve years.
418
¶89 Foreign courts even recognize what is known as “the death row phenomenon”—the
prolonged wait between sentence and execution that America’s condemned inmates
face.
419
In Soering v. United Kingdom,
420
the European Court of Human Rights refused
to extradite a German national from the United Kingdom to Virginia out of concern over
the prolonged stay on death row an individual would face if sentenced to death.
421
A
number of foreign governments—U.S. allies like Canada, England, Italy and France—
the final goal, was published by the People’s Security University Press in 2004.”).
Notably, the U.S. government long ago sought to ensure that U.S. citizens residing in China would not
be subject to “barbarous and cruel punishments.” Peter Nicolas, American-Style Justice in No Man’s Land,
36 G
A. L. REV. 895, 997–98 (2002) (“In 1844, the United States entered into the Treaty of Wang Hiya,
which secured the right of extraterritoriality for U.S. citizens residing in China. The rationale for entering
into the treaty was to protect U.S. nationals from what was perceived to be ‘barbarous and cruel
punishments inflicted’ by the courts of non-Christian countries, such as China. Under the terms of the
treaty, citizens of the United States who committed any crime in China could be tried and punished only by
U.S. authorities.”) (quoting In re Ross, 140 U.S. 453, 463 (1891)).
415
See JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000),
available at http://www2.law.columbia.edu/instructionalservices/liebman; J
AMES S. LIEBMAN ET AL., A
BROKEN SYSTEM, PART II: WHY THERE IS SO MUCH ERROR IN CAPITAL CASES, AND WHAT CAN BE DONE
ABOUT IT (2002), available at http://www2.law.columbia.edu/brokensystem2/report.pdf.
416
Judge Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S. CAL. L. REV. 697, 711
(2007).
417
CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, REPORT AND RECOMMENDATIONS ON THE
ADMINISTRATION OF THE DEATH PENALTY IN CALIFORNIA 26–27 (June 30, 2008).
418
Id. at 7, 22. Although California’s death row continues to grow in size, in the last ten years fewer
California death sentences have been handed out. Whereas forty death sentences were meted out in
California in 1997, only twenty death sentences were handed out in that state in 2007. Id. at 19. The
California commission that issued the 2008 report had this to say about capital punishment’s significant
financial costs: “With a dysfunctional death penalty law, the reality is that most California death sentences
are actually sentences of lifetime incarceration. The defendant will die in prison before he or she is ever
executed. The same result can be achieved at a savings of well over one hundred million dollars by
sentencing the defendant to lifetime incarceration without possibility of parole.” Id. at 75–76. For further
information on the death row phenomenon, see Eva Rieter, ICCPR Case Law on Detention, the Prohibition
of Cruel Treatment and Some Issues Pertaining to the Death Row Phenomenon, 2002 J.
INST. JUST. INT’L
STUD. 83 (2002).
419
SCHABAS, supra note 3, at 19. Thus far, U.S. courts have refused to recognize Eighth Amendment
claims associated with prolonged stays on death row, though Justices Breyer and Stevens have both
expressed interest in reviewing such a claim. See Jeremy Root, Cruel and Unusual Punishment: A
Reconsideration of the Lackey Claim, 27 N.Y.U. REV. L. & SOC. CHANGE 281, 282 (2002).
420
App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989).
421
Id. It was noted in Soering that persons in Virginia wait an average of six to eight years prior to
execution or other resolution of their death sentences. Id. In 1993, the Judicial Committee of the Privy
Council—the court of last resort for member countries of the British Commonwealth—ruled that holding
Jamaican prisoners on death row for several years was inhuman punishment, even if the prisoners’ own
appeals caused the delay in execution. See Pratt & Morgan v. Attorney General for Jamaica, 3 SLR 995, 2
AC 1, 4 All ER 769 (Privy Council 1993) (en banc).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
254
have actually refused to extradite people to the United States in the absence of assurances
that the death penalty would not be sought.
422
¶90 As a result of another line of cases, the United States has also come under
criticism—and been rebuked by the International Court of Justice (ICJ)—for its handling
of foreign nationals arrested for capital crimes. Article 36 of the Vienna Convention on
Consular Relations requires that governments notify detainees from foreign countries of
their right to consular assistance.
423
The failure to do so for dozens of foreigners who
landed on American death rows led Paraguay, Germany and Mexico to file actions before
the ICJ.
424
The ICJ—or the World Court, as it is commonly known—expressly
determined that the United States violated international law in its handling of these death
row inmates.
425
Because American courts have sentenced to death more than 100 foreign
nationals,
426
the United States—in carrying out such executions—has drawn the ire of a
number of countries, strained diplomatic relations, and lost respect in the international
community.
427
VI. T
HE EIGHTH AMENDMENT
A. The Origins of the “Cruel and Unusual Punishments” Clause
¶91 Within the United States, the U.S. Constitution’s Eighth Amendment has been a
focal point of the contentious death penalty debate. The Eighth Amendment states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”
428
The idea behind the Eighth Amendment—of not inflicting
draconian punishments—has been around in one form or another for centuries, easily pre-
dating Beccaria’s writings. The Magna Carta of 1215 guaranteed proportionate fines,
429
422
See United States v. Burns [2001] S.C.C. 7; [2001] 5 L.R.C. 19; Michael Mello, Certain Blood for
Uncertain Reasons: A Love Letter to the Vermont Legislature on Not Reinstating Capital Punishment, 32
V
T. L. REV. 765, 787 (2008). France actually refused to cooperate in the Zacarias Moussaoui terrorism
investigation—thus hindering U.S. law enforcement efforts—once the U.S. decided to seek Moussaoui’s
execution. Id.; see also Thomas Michael McDonnell, The Death Penalty—An Obstacle to the "War
Against Terrorism", 37 V
AND. J. TRANSNAT'L L. 353 (2004).
423
596 UNTS 261 (1963), art. 36(1)(b).
424
SCHABAS, supra note 3, at 17–18; see also Eric Engle, Death Is Unconstitutional: How Capital
Punishment Became Illegal in America—A Future History, 6 P
IERCE L. REV. 485, 501–502 (2008); Susan
L. Karamanian, Briefly Resuscitating the Great Writ: The International Court of Justice and the U.S. Death
Penalty, 69 A
LB. L. REV. 745, 751–62 (2006).
425
SCHABAS, supra note 3, at 18; accord Engle, supra note 424, at 503 (citing Avena & Other Mexican
Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31)). After the ICJ’s Avena decision, the Supreme Court
held that the decision was not directly enforceable in a case litigated by a Mexican national, Jose Ernesto
Medellín, and the State of Texas. See Medellín v. Texas, 128 S. Ct. 1346, 1348 (2008). Medellín was later
executed. Scotus Blog, Update: Medellín Executed as Court Refuses Delay,
http://www.scotusblog.com/wp/final-filings-in-medellin-case/ (last visited Aug. 31, 2009).
426
SCHABAS, supra note 3, at 18.
427
See William A. Schabas, International Law, Politics, Diplomacy and the Abolition of the Death Penalty,
13 W
M. & MARY BILL OF RTS. J. 417 (2004); Mark Warren, Death, Dissent and Diplomacy: The U.S.
Death Penalty as an Obstacle to Foreign Relations, 13 W
M. & MARY BILL OF RTS. J. 309, 337 (2004).
428
U.S. CONST., amend. VIII. The Eighth Amendment is applicable to the States through the Fourteenth
Amendment. Roper, 543 U.S. at 560; Robinson v. California, 370 U.S. 660, 666 (1962). Prior to the
adoption of the Fourteenth Amendment, however, the Eighth Amendment was only held applicable to the
federal government. Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475, 480 (1866); Ex Parte Watkins, 32
U.S. (7 Pet.) 568 (1833); accord Barker v. People, 3 Cow. 686 (N.Y. Sup. Ct. 1824).
429
Solem v. Helm, 463 U.S. 277, 284–85 (1983). In England, royal courts relied on such provisions to
Vol. 4:2] John D. Bessler
255
tying the fine to the “magnitude” or “degree” of the offense.
430
The prohibition on
“cruel” punishments first found its way into American law through a Puritan attorney, the
Cambridge-educated Rev. Nathaniel Ward of Ipswich, Massachusetts. A draft legal code
prepared by Ward was enacted into law in 1641 under the title “Body of Liberties”—
clause 46 of which reads: “For bodily punishments we allow amongst us none that are
inhumane, barbarous or cruel.”
431
¶92 The English Bill of Rights of 1689
432
—the predecessor of the Eighth Amendment
and similar state constitutional provisions
433
—was enacted after William of Orange took
the English throne in 1688.
434
It provided: “[E]xcessive Baile ought not to be required
nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.”
435
The
driving force behind it was abuses by Lord Chief Justice George Jeffreys of the King’s
Bench during the Stuart reign of James II.
436
Jeffreys presided over the “Bloody Assizes”
after the Duke of Monmouth’s rebellion in 1685, and a commission he led tried,
convicted and oversaw the execution of hundreds of suspected rebels.
437
Many of those
rebels were executed by horrific means such as disembowelment, beheading, drawing
invalidate disproportionate punishments. Id. at 285 (citing Le Gras v. Bailiff of Bishop of Winchester,
Y.B.Mich. 10 Edw. II, pl. 4 (C.P. 1316), reprinted in 52 Selden Society 3 (1934) & Earl of Devon’s Case,
11 State Trials 133, 136 (1689)).
430
Wheeler, 175 P.3d 438, 442 & n.2. The Magna Carta was invoked by an Englishman, Sir Robert Beale,
in the late sixteenth century to question the monarchy’s power to inflict cruel punishments. Furman, 408
U.S. at 316 (Marshall, J., concurring). Beale, an Oxford-educated member of Parliament and a lawyer who
opposed torture, had written a manuscript in 1583 that attacked the English crown’s right to punish persons
for ecclesiastical offenses. The Clerk of the Privy Council, Beale represented Puritan ministers deprived of
their benefices, argued in vain that the use of torture to extract confessions violated the Magna Carta, and in
1592 was banished from the Royal Court. The Archbishop of Canterbury, John Whitgift, admonished
Beale that had he “condemneth (without exception of any cause) the racking of grievous offenders as being
cruel, barbarous, contrary to law, and unto the liberty of English subjects.” See id.; Tessa M. Gorman,
Back on the Chain Gang: Why the Eighth Amendment and the History of Slavery Proscribe the Resurgence
of Chain Gangs, 85 C
AL. L. REV. 441, 460 n.161 (1997); Scott A. Trainor, A Comparative Analysis of a
Corporation’s Right Against Self-Incrimination, 18 F
ORDHAM INT’L L.J. 2139, 2153–54 (1995).
431
Anthony Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning, 57 CAL. L.
REV. 839, 850–51 (1969). The prohibition against “inhumane, barbarous or cruel” punishments was later
incorporated into the Massachusetts Bay Colony’s Code of 1648—which prescribed the punishment of
death for cursing one’s parents or rebelling against one’s father—and into Connecticut’s Code of 1672. Id.
at 860; Christopher Collier, The Common Law and Individual Rights in Connecticut Before the Federal Bill
of Rights, 76 C
ONN. B.J. 1, 12–13 (2002); Mark D. Cahn, Punishment, Discretion, and the Codification of
Prescribed Penalties in Colonial Massachusetts, 33 A
M. J. LEGAL HIST. 107, 132 (1989); Simeon E.
Baldwin, Whipping and Castration as Punishments for Crime, 8 Y
ALE L.J. 371, 380–81 (1899).
432
Bill of Rights (1689), reprinted in SOURCES OF OUR LIBERTIES 247 (Richard L. Perry ed., 1959).
433
Ingraham v. Wright, 430 U.S. 651, 664 (1977) (“The history of the Eighth Amendment is well known.
The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of 1776, which
in turn derived from the English Bill of Rights of 1689. The English version, adopted after the accession of
William and Mary, was intended to curb the excesses of English judges under the reign of James II.”);
Trop, 356 U.S. at 100 (plurality opinion) (citing 1 Wm. & Mary, 2d Sess. (1689), c. 2); accord In re
Kemmler, 136 U.S. 436, 446 (1890); Solem, 463 U.S. at 285–86; Furman, 408 U.S. at 242 (Douglas, J.,
concurring). A more complete history of the language found in the Eighth Amendment is found elsewhere.
See, e.g., Granucci, supra note 431; Malcolm E. Wheeler, Toward a Theory of Limited Punishment: An
Examination of the Eighth Amendment, 24 S
TAN. L. REV. 838, 853–55 (1972); see also Schwartz &
Wishingrad, supra note 75, at 823–26.
434
Ray S. Pierce, Now You Can’t Do That: Disproportionate Prison Sentences as Cruel and Unusual
Punishment, 24 U.
ARK. LITTLE ROCK L. REV. 775, 781 (2002).
435
1 W & M, sess. 2, ch. 2 (1689) (quoted in Solem, 463 U.S. at 285).
436
Harmelin v. Michigan, 501 U.S. 957, 967 (1991).
437
Id. at 968.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
256
and quartering, and the burning of female offenders—common punishments at the time,
but ones that would later fall into disrepute.
438
¶93 It was actually Jeffreys’ arbitrary use of power in the case of Titus Oates—power
traditionally exercised by ecclesiastical courts—that led to England’s “cruell and unusuall
Punishments” provision.
439
Oates, a Protestant cleric, had been convicted of two counts
of perjury in 1685 and was sentenced to be pilloried four times a year and stripped of his
clerical position.
440
Oates had made false allegations in 1678, causing the execution of
fifteen Catholics for allegedly organizing a “Popish Plot” to overthrown King Charles
II.
441
Sentenced to be whipped by “the common hangman,” Oates did not die from these
corporal punishments, and he petitioned both houses of Parliament to set aside his
sentence as illegal after the adoption of the English Bill of Rights.
442
¶94 The House of Lords affirmed the judgment, but a minority of the Lords dissented,
calling Oates’ punishment “barbarous, inhuman, and unchristian” and “contrary” to the
English Bill of Rights, adding that “there is no Precedent to warrant the Punishments of
whipping and committing to Prison for Life, for the Crime of Perjury.” The dissenters
saw the judgment of the King’s Bench, which divested Oates of “his canonical and
priestly Habit,” as “a Matter wholly out of their Power, belonging to the Ecclesiastical
Courts only.” “Unless this Judgment be reversed,” the dissenters intoned, “cruel,
barbarous and illegal Judgments” would be encouraged. The House of Commons, after
conducting its review, passed a bill to annul Oates’ sentence, and Oates was released in
1689. The House of Commons specifically invoked England’s new “cruell and unusuall”
punishments clause, calling Oates’ punishment “barbarous,” an “ill Example to future
438
Id. Those who adopted the Eighth Amendment expressed particular concern about the modes of
punishment—something reflected in early commentary on the amendment. See J.
BAYARD, A BRIEF
EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 154 (2d ed. 1840) (cited in Harmelin, 501 U.S.
at 981); B.
OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 186 (1832) (cited in Harmelin, 501 U.S. at 981).
However, legal scholars have noted that some of the Framers may have misinterpreted English law in
concluding that the parallel provision in the English Bill of Rights was originally intended to ban
particularly vile methods of punishment. See, e.g., Granucci, supra note 431, at 843; cf. J
OSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1006, at 170–71 (Carolina Acad. Press
1987) (1833) (citing Blackstone and saying the Eighth Amendment was adopted “as an admonition to all
departments of the national government, to warn them against such violent proceedings, as had taken place
in England in the arbitrary reign of some of the Stuarts”).
439
See Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth
Amendment Pose?, 31 H
ARV. J.L. & PUB. POL’Y 35, 40 (2008) (“As William Blackstone made clear to
lawyers in the American Founding era, the English Bill of Rights did not condemn methods of
punishment—not even the grotesque practice of drawing and quartering traitors.”). Indeed, such brutal
methods of execution as drawing and quartering traitors—not repealed until the 1800s—remained legal in
England long after the English Bill of Rights was promulgated. Id. at 40 n.22. Instead, it was Jeffreys’
imposition of penalties not authorized by common-law precedent in the Oates’ case that drew the attention
of England’s Parliament. See L
EONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 236 (1999); see also
Case of Titus Oates, 10 Howell’s State Trials 1079, 1314 (K.B. 1685), reprinted in T
HE FOUNDERS’
CONSTITUTION (Philip B. Kurland & Ralph Lerner eds., 1987), available at http://press-
pubs.uchicago.edu/founders/documents/amendVIIIs1.html.
440
Stinneford, supra note 271, at 1760–61.
441
Id. at 1760.
442
Harmelin, 501 U.S. at 968–75; Stephen T. Parr, Symmetric Proportionality: A New Perspective on the
Cruel and Unusual Punishment Clause, 68 T
ENN. L. REV. 42, 43–44 (2000); Granucci, supra note 431, at
853–860; James J. Brennan, The Supreme Court’s Excessive Deference to Legislative Bodies Under Eighth
Amendment Sentencing Review, 94 J.
CRIM. L. & CRIMINOLOGY 551, 553 (2004); Pierce, supra note 434, at
781–83.
Vol. 4:2] John D. Bessler
257
Ages” and “unusual” in that “an Englishman should be exposed upon a Pillory, so many
times a Year, during his Life.”
443
¶95 The U.S. Constitution’s Eighth Amendment—added to assuage the concerns of
Anti-federalists who worried about abuses of power
444
—was adopted against that
historical backdrop. In 1791, when the Eighth Amendment was ratified, five state
constitutions already prohibited “cruel or unusual punishments”
445
and two others
prohibited merely “cruel” punishments.
446
The Eighth Amendment, however, was
directly based on the Virginia Declaration of Rights, authored by George Mason, which
prohibited “cruel and unusual punishments.”
447
Mason, a plantation owner from Fairfax
County, had no formal training in law, and had simply adopted verbatim the language of
the English Bill of Rights.
448
This has led one scholar to conclude that the “cruel and
unusual punishments” language—particularly to non-lawyers like George Mason—might
have been seen as constitutional “boilerplate.”
449
Indeed, Thomas Jefferson later pointed
out that when it came time to reform Virginia’s laws, Mason withdrew from the task—
seeing himself as unqualified because of his lack of legal training.
450
¶96 In drafting Virginia’s declaration, Mason wanted to ensure that American colonists
would be on equal footing with other English subjects. Mason had asserted as early as
1766 that American colonists “claim Nothing but the Liberty & Privileges of
Englishmen, in the same degree, as if we had still continued among our Brethren in Great
Britain.”
451
Indeed, in 1774, Mason had stated that colonists were entitled to all the
“Privileges, Immunities and Advantages” of English law,
452
and certainly felt it important
enough to include the “cruel and unusual punishments” language to protect Virginians’
443
Harmelin, 501 U.S. at 968–75; Parr, supra note 442, at 43–44; Granucci, supra note 431, at 853–860;
Brennan, supra note 442, at 553; Pierce, supra note 434, at 781–83.
444
Stinneford, supra note 271, at 1803 .
445
See Del. Declaration of Rights, § 16 (1776); Md. Declaration of Rights, art. XXII (1776); Mass.
Declaration of Rights, art. XXVI (1780); N.C. Declaration of Rights, § X (1776); N.H. Bill of Rights, art.
XXXIII (1784).
446
See PA. CONST., art. IX, § 13 (1790); S.C. CONST., art. IX, § 4 (1790).
447
See Va. Declaration of Rights, § 9 (1776); Harmelin, 501 U.S. at 966; Solem, 463 U.S. at 285 n.10;
Furman, 408 U.S. at 319–20 (Marshall, J., concurring). In contrast, the Northwest Ordinance of 1787,
enacted under the auspices of the Articles of Confederation, had prohibited “cruel or unusual punishments.”
See Furman, 408 U.S. at 243–44 (Douglas, J., concurring); Ordinance of 1787: The Northwest Territorial
Government (July 13, 1787), art. II.
448
Granucci, supra note 431, at 840; see also Calvin R. Massey, The Excessive Fines Clause and Punitive
Damages: Some Lessons from History, 40 V
AND. L. REV. 1233, 1242 (1987).
449
See Laurence Claus, The Antidiscrimination Eighth Amendment, 28 HARV. J.L. & PUB. POL’Y 119, 129
(2004) (“For many in the founding generation, it had become the verbiage of civility, and they were intent
on employing it for whatever it was worth. Like the Latin Mass, it was valued by those for whom it was
cultural heritage, whether understood or not. When George Mason and his fellow Virginians sat down to
draft a Declaration of Rights in 1776, they had just spent over a decade declaring at every opportunity that
all they sought were the ‘rights of Englishmen.’ Now that the bonds with Britain were broken, they
described the rights they claimed as natural rather than English, but the content of those rights did not
change. The language of the English Bill of Rights meant for the Founders whatever it meant for the
English.”).
450
See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/
(follow “List all Collections” hyperlink; then follow “Jefferson, Thomas ~ Papers ~ 1606-1827” hyperlink;
then search “autobiography” in “Search Collection”; then follow “Thomas Jefferson, July 27, 1821,
Autobiography Draft Fragment, January 6 through July 27”) (last visited Aug. 31, 2009).
451
Massey, supra note 448, at 1242.
452
Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
258
rights.
453
“We have received the ancient constitutional and common-law rights of
Englishmen from our Ancestors,” Mason said, adding that “with God’s Leave, we will
transmit them, unimpaired to our Posterity.”
454
¶97 It is clear that many early American lawyers and jurists viewed the Eighth
Amendment as barring vile methods of punishment—a fact revealed by a review of early
American case reports. An 1801 case report from North Carolina cites a lawyer’s
argument that the common law punishment of “pressing to death” would violate the
“cruel and unusual punishments” clause of the state constitution.
455
A court decision
from 1824, interpreting Virginia’s cruel and unusual punishments clause, likewise opined
that the provision was “merely applicable to the modes of punishment.”
456
The court
ruled that “the best heads and hearts of the land of our ancestors, had long and loudly
declaimed against the wanton cruelty of many of the punishments practised in other
countries,” with the court declaring that the clause “was framed effectually to exclude
these, so that no future Legislature, in a moment perhaps of great and general excitement,
should be tempted to disgrace our Code by the introduction of any of those odious modes
of punishment.”
457
¶98 Although the Framers—men like James Madison, the principal drafter of the
Constitution,
458
and James Wilson, a gifted lawyer and legal scholar
459
—despised
453
Consistent with a natural rights tradition, the Virginia Declaration of Rights he drafted also contained
strong language on the right to life, stating: “all men . . . have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any compact deprive or divest their posterity, namely the
enjoyment of life and liberty.” Gilreath, supra note 137, at 574. Notably, the Pennsylvania Constitution of
1776 contained somewhat similar language on the right to life, providing, “That all men are born equally
free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the
enjoying and defending life and liberty.” S
OURCES OF OUR LIBERTIES 329 (Richard L. Perry ed., 1959).
454
Massey, supra note 448, at 1243.
455
State v. Gainer, 3 N.C. 140, 1801 WL 710 *1 (N.C. Super. L. & Eq.), 2 Hayw. (NC) 140 (1801).
456
Aldridge v. Commonwealth, 2 Va. Cas. 447, 1824 WL 1072 *3 (Gen. Ct. Va. 1824).
457
Id. Compare Commonwealth v. Wyatt, 6 Rand 694, 27 Va. 694, 1828 WL 860 *1 (Va. Gen. Ct. 1828)
(upholding the constitutionality of an act of 1823 providing that persons convicted may be imprisoned for
up to six months and may receive “stripes” at the discretion of the court, to be inflicted at one time, or at
different times, providing they did not exceed thirty-nine at any one time). In Wyatt, the General Court of
Virginia summarized the defendant’s lawyer’s unsuccessful arguments as follows: “[I]t is perfectly evident
that the Court, by virtue of this Law, might exercise its discretion to subserve vindictive passions, and so as
to direct the party convicted to be subjected to thirty-nine stripes every day of the six months, which would
inevitably terminate in death; a death produced by the most cruel torture. That by the Bill of Rights,
properly regarded as part of the Constitution of Virginia, the General Assembly is restrained from
authorising by Law, ‘cruel and unusual punishments (to be) inflicted,’ and that therefore the authority
delegated to the Courts, as above described by the Act aforesaid, being prohibited to the Legislature, by the
Constitution, cannot by it be delegated to the Courts, and that the Act aforesaid is therefore void, and ought
so to be regarded by this Court.” Id. at *4.
458
James Madison—the primary architect of the Constitution that emerged from the Convention in
Philadelphia in 1787—had the responsibility of defending that document in Virginia, his home state.
Virginia’s ratification convention endorsed the Constitution in 1788, but appended to its approval a list of
proposed amendments, collectively described as “a declaration or bill of rights.” Thirteenth on the list was
the language from Virginia’s own declaration: “That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” Delegates from state ratifying conventions in
New York, North Carolina, Rhode Island and Pennsylvania also wanted language resembling that of
section 10 of the English Bill of Rights. When drafting amendments for presentation to the First Congress
in 1789, Madison thus naturally looked to Virginia’s declaration, making only one modification. He
substituted the mandatory declarative “shall not” for the more discretionary and less binding “ought not to,”
leading to what is today the language of the Eighth Amendment. See Claus, supra note 449, at 127–28.
459
James Wilson served in the Second Continental Congress, played a leading role in the ratification of the
Constitution, and was one of only six men to sign both the Declaration of Independence and the
Vol. 4:2] John D. Bessler
259
governmental abuses of power and excessive punishments,
460
there exists very little
legislative history as regards the Eighth Amendment.
461
The only recorded materials in
the debates of the First Congress on the Bill of Rights are two comments about the
vagueness of the clause by opponents of it.
462
This is all that appears:
Mr. Smith, of South Carolina, objected to the words ‘nor cruel and
unusual punishments;’ the import of them being too indefinite.
Mr. Livermore [of New Hampshire]: The clause seems to express a
great deal of humanity, on which account I have no objection to it; but as
it seems to have no meaning in it, I do not think it necessary. What is
meant by the terms excessive bail? Who are to be the judges? What is
understood by excessive fines? It lies with the court to determine. No
cruel and unusual punishment is to be inflicted; it is sometimes necessary
to hang a man, villains often deserve whipping, and perhaps having their
ears cut off; but are we in the future to be prevented from inflicting these
punishments because they are cruel? If a more lenient mode of correcting
vice and deterring others from the commission of it could be invented, it
would be very prudent in the Legislature to adopt it; but until we have
some security that this will be done, we ought not to be restrained from
making necessary laws by any declaration of this kind.
463
The record reveals that after these brief comments were made, the Eighth Amendment
“was agreed to by a considerable majority.”
464
¶99 The absence of such a restraint in the Constitution as originally conceived is
mentioned in only two of the state ratifying conventions. At the Massachusetts
convention, Abraham Holmes spoke out against the possibility of barbaric punishments.
An Anti-federalist and one of 364 delegates to the Massachusetts ratifying convention,
Constitution. Arthur E. Wilmarth, Jr., Elusive Foundation: John Marshall, James Wilson, and the Problem
of Reconciling Popular Sovereignty and Natural Law Jurisprudence in the New Federal Republic, 72 G
EO.
WASH. L. REV. 113, 144–45 (2003).
460
In 1787, constitutional convention attendees George Mason of Virginia and Elbridge Gerry of
Massachusetts moved to include a Bill of Rights in the U.S. Constitution—something Mason said “would
give great quiet to the people.” T
HE DECLARATION OF INDEPENDENCE, supra note 97, at 32, 34–35. That
effort was rejected, but it wasn’t long before a consensus developed that a Bill of Rights was necessary.
Schwartz & Wishingrad, supra note 75, at 826–29; see also Mark A. Garber, Enumeration and Other
Constitutional Strategies for Protecting Rights: The View from 1787/1791, 9 U.
PA. J. CONST. L. 357, 381
(2007) (“Madison’s proposed Bill of Rights was aimed at simultaneously appeasing Anti-federalists and
preserving Federalist institutions. His plan, Madison told Jefferson, was to provide those ‘alterations most
called for by the opponents of the Government and least objectionable to its friends.’”). As one Supreme
Court Justice later wrote, “[p]reconstitutional American history reeked with cruel punishment to such an
extent that, in 1791, the Eighth Amendment to the Constitution of the United States expressly imposed
upon federal agencies a mandate that ‘Excessive bail shall not be required, nor excessive finds imposed,
nor cruel and unusual punishments inflicted.’” State of Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 473 (1947) (Burton, J., dissenting).
461
Weems v. United States, 217 U.S. 349, 368 (1910) (“The provision received very little debate in
Congress.”); Furman v. Georgia, 408 U.S. 238, 258 (1972) (Brennan, J., concurring).
462
Furman, 408 U.S. at 262 (Brennan, J., concurring).
463
Furman, 408 U.S. at 244 (Douglas, J., concurring) (citing 1 ANNALS OF CONG. 754 (1789)).
464
1 ANNALS OF CONG. 754 (1789).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
260
Holmes expressed concern that the “diabolical institution” of the Spanish Inquisition—
what he called “the disgrace of Christendom”—might be replicated in America.
465
Holmes protested:
What gives an additional glare of horror to these gloomy circumstances is
the consideration, that Congress have to ascertain, point out, and
determine, what kinds of punishments shall be inflicted on persons
convicted of crimes. They are nowhere restrained from inventing the most
cruel and unheard-of punishments, and annexing them to crimes; and there
is no constitutional check on them, but that racks and gibbets may be
amongst the most mild instruments of their discipline.
466
¶100 At Virginia’s convention, Patrick Henry also expressed the fear that Congress
would have unlimited power to prescribe punishments. Henry vehemently objected to
the lack of a Bill of Rights, fearing “tortures” and “cruel and barbarous” punishments.
467
Henry emphasized: “What has distinguished our ancestors? That they would not admit of
tortures, or cruel and barbarous punishment.”
468
For example, Henry feared that
Congress might “introduce the practice of France, Spain, and Germany—of torturing, to
extort a confession of the crime.”
469
In discussing the proposed power of Congress to
raise armies, Henry added:
Your men who go to Congress are not restrained by a bill of rights. They
are not restrained from inflicting unusual and severe punishments, though
the bill of rights of Virginia forbids it. What will be the consequence?
They may inflict the most cruel and ignominious punishments on the
militia, and they will tell you that it is necessary for their discipline.
470
“[W]hen we come to punishments,” Henry said, “no latitude ought to be left, nor
dependence put on the virtue of representatives.”
471
Emphasizing that Virginia barred
“cruel and unusual punishments,” Henry passionately pled his case: “Are you not,
therefore, now calling on those gentlemen who are to compose Congress, to . . . define
punishments without this control?”
472
¶101 In the same debate, George Mason also expressed the view that “there were few
clauses in the Constitution so dangerous as that which gave Congress exclusive power of
legislation within ten miles square” as it “may, like the custom of the superstitious days
465
Michael J. Zydney Mannheimer, When the Federal Death Penalty Is “Cruel and Unusual,” 74 U. CIN.
L. REV. 819, 834 (2006); Roger W. Kirst, Does Crawford Provide a Stable Foundation for Confrontation
Doctrine?, 71 B
ROOK. L. REV. 35, 79–81 (2005).
466
Furman, 408 U.S. at 258–59 (Brennan, J., concurring) (citing 2 J. ELLIOT’S DEBATES 111 (2d ed.
1876)).
467
Granucci, supra note 431, at 840, 841 & n.10 (citing JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 447–48 (2d ed. 1881)).
468
Furman, 408 U.S. at 259–60 (Brennan, J., concurring).
469
Id. at 260 n.2.
470
3 ELLIOT’S DEBATES 412 (2d ed. 1836).
471
Furman, 408 U.S. at 259 (Brennan, J., concurring).
472
Id.
Vol. 4:2] John D. Bessler
261
of our ancestors, become the sanctuary of the blackest crimes.”
473
“Now, sir,” Mason
argued, “if an attempt should be made to establish tyranny over the people, here are ten
miles square where the greatest offender may meet protection.”
474
Mason further opined
that the Virginia Declaration of Rights prohibited torture, arguing in Virginia’s ratifying
convention in 1788 that a “clause of the bill of rights provided that no cruel and unusual
punishments shall be inflicted; therefore, torture was included in the prohibition.”
475
B. The Founding Fathers’ Ambivalence Toward Capital Punishment
¶102 Many Founding Fathers, including signers of the U.S. Constitution, did not oppose
executions for certain crimes.
476
For example, John Jay, the first President of the
Continental Congress and the first Chief Justice of the Supreme Court, was asked
whether he thought the death penalty violated the commandment against taking life. Jay
replied it did not, saying, “[a]s to murderers, I think it not only lawful for government,
but that it is the duty of government, to put them to death.”
477
Indeed, the First Congress
made several crimes punishable by hanging, among them treason, murder on federal land,
forgery, uttering forged securities, counterfeiting, and piracy on the high seas.
478
However, many of America’s Founders were deeply troubled by capital punishment for
other classes of offenders. For instance, as New York’s governor, Jay opposed capital
punishment for lower-level offenders, arguing that “establishments for confining,
employing, and reforming criminals” were “indispensible.”
479
¶103 According to one historian, James Madison—principal author of the U.S.
Constitution and central actor in framing the Bill of Rights—“favored abandoning capital
punishment altogether,” though Madison himself wrote little on the subject and may not,
in fact, have opposed executions for every category of offender.
480
After Jefferson’s bill
473
3 ELLIOT’S DEBATES 412 (2d ed. 1836).
474
Id.
475
Granucci, supra note 431, at 841–42. Another delegate, George Nicholas, quickly agreed with that
interpretation, but felt that the protection had been frequently ignored. See Virginia Ratifying Convention
(June 16, 1788), reprinted in T
HE FOUNDERS’ CONSTITUTION (Philip B. Kurland & Ralph Lerner eds.,
1987), available at http://press-pubs.uchicago.edu/founders/documents/a2_2_1s6.html.
476
RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA 3 (1991); see also 8 AMERICAN STATE
TRIALS: A COLLECTION OF THE IMPORTANT AND INTERESTING CRIMINAL TRIALS WHICH HAVE TAKEN
PLACE IN THE UNITED STATES, FROM THE BEGINNING OF OUR GOVERNMENT TO THE PRESENT DAY 7 (John
D. Lawson ed., 1917) (noting that New Hampshire Governor John Langdon, one of the signers of the
Constitution, allowed the execution of Josiah Burnham to proceed after granting a four-week reprieve).
477
WALTER STAHR, JOHN JAY: FOUNDING FATHER 379 (2005).
478
See Mannheimer, supra note 465, at 823. In 1897, Congress reduced the number of capital crimes to
five.
479
STAHR, supra note 477, at 345. New York’s legislature would agree, passing a law restricting capital
punishment to four crimes: treason, murder, abetting murder, and stealing from a church. Id.
480
BANNER, supra note 1, at 88; Jack N. Rakove, Book Review, Two Foxes in the Forest of History, 11
Y
ALE J.L. & HUMAN. 191, 192 (1991); see also Betty B. Fletcher, The Death Penalty in America: Can
Justice Be Done?, 70 N.Y.U.
L. REV. 811, 811–12 (1995) (“James Madison might be surprised to hear the
topic I have chosen for the lecture that bears his name. Madison neither championed nor deplored the death
penalty. He apparently gave it little thought, for there is almost no reference to it in his voluminous
writings. It is not discussed in The Federalist Papers. The Constitution mentions it only by implication in
the Fifth Amendment, forbidding the deprivation of life without due process of law. Madison did promote
Thomas Jefferson’s legal reforms for Virginia, which included a provision to restrict capital punishment to
murder and treason. But Madison criticized this provision because he felt that it would unduly ‘tie the
hands of Government.’”).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
262
for more proportionate punishments failed by a single vote in 1785, for example,
Madison lamented to Jefferson that “our old bloody code is by this event fully
restored.”
481
Madison also told Dr. Benjamin Rush that he favored reforming criminals
instead of executing them.
482
Likewise, in 1788, Madison—concerned about the severity
of executions yet maybe still unsure of where he himself stood on the issue—made these
remarks on a draft Virginia constitution prepared by Thomas Jefferson:
It is at least questionable whether death ought to be confined to “Treason
and murder.” It would not therefore be prudent to tie the hands of
Government in the manner here proposed. The prohibition of pardon,
however specious in theory would have practical consequences which
render it inadmissible. A single instance is a sufficient proof. The crime
of treason is generally shared by a number, and often a very great number.
It would be politically if not morally wrong to take away the lives of all
even if every individual were equally guilty. What name would be given
to a severity which made no distinction between the legal & the moral
offence—between the deluded multitude and their wicked leaders. A
second trial would not avoid the difficulty; because the oaths of the jury
would not permit them to hearken to any voice but the inexorable voice of
the law.
483
¶104 Perhaps the best statement of Madison’s views on the death penalty was expressed
privately. After he finished his presidential term, Madison wrote a letter to a war veteran
who had solicited Madison’s views on the subject. In 1823, G. F. H. Crockett, a
Kentuckian, wrote to Madison, enclosing a copy of Crockett’s address to the Kentucky
legislature on the abolition of capital punishment.
484
Madison wrote back later that year,
noting receipt of Crockett’s letter and his legislative address and referring to his
“enlightened opinions.”
485
Madison noted the “innovations” that can be brought about by
“the legislative power” of “each confederated member”—a clear reference to
federalism—with Madison emphasizing the potential “extension” of such policies “to the
whole if found to be improvements.”
486
Madison then commented:
481
See RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 162 (1990).
482
See MASUR, supra note 1, at 62 (1989).
483
James Madison, Observations on the “Draught of a Constitution for Virginia,” in 5 THE WRITINGS OF
JAMES MADISON, 1787-1790, at 288 (Gaillard Hunt ed., 1904); see also Matthew T. Norman, Standards
and Procedures for Determining Whether a Defendant Is Competent to Make the Ultimate Choice – Death;
Ohio’s New Precedent for Death Row Volunteers, 13 J.L.
& HEALTH 103, 108 (1998-1999) (“In drafting a
state constitution for Virginia, Thomas Jefferson provided capital punishment for the crimes of treason and
murder. But, James Madison believed that this provision in the state’s constitution would ‘unduly tie the
hands of Government.’ Madison was concerned that juries would not be able to impose capital punishment
in a fair and reliable manner and would have much difficulty determining who deserved the death penalty
and who did not.” (citing Madison, supra, at 284, 288–89)).
484
Letter from G. F. H. Crockett to James Madison (Sept. 24, 1823) (Madison Papers, Library of
Congress), available at http://memory.loc.gov/master/mss/mjm/20/0500/0570d.jpg; see also
CAPITAL
PUNISHMENT: A BIBLIOGRAPHY WITH INDEXES 36 (C. Cliff ed., 2nd ed. 2003).
485
Letter from James Madison to G.F.H. Crockett (Nov. 6, 1823) (Madison Papers, Library of Congress),
available at http://memory.loc.gov/master/mss/mjm/20/0600/0621d.jpg.
486
Id.
Vol. 4:2] John D. Bessler
263
I should not regret a fair and full trial of the entire abolition of capital
punishments, by any State willing to make it: tho’ I do not see the injustice
of such punishments in one case at least. But it is not my purpose to enter
into the important discussion. Nor do I know that I could furnish you with
any new ideas or hints such as you ask, if there were time for the task.
You seem to have consulted some of the sources where they were most
likely to be found.
487
Elsewhere, Madison would describe “capital punishments” as “one of the most solemn
acts of sovereign authority.”
488
¶105 Another leading founder, James Wilson, expressed the view that America’s
criminal law “greatly needs reformation.” He said that “the seeds of reformation are
sown” but quickly cautioned: “Those seeds, and the tender plants which from some of
them are now beginning to spring, let it be our care to discover and to cultivate.”
489
After
calling the law of England “defective to a degree both gross and cruel” and citing
Sabacos, who, in Egypt, replaced capital punishment with life sentences to be carried out
“in the publick works,” Wilson called for proportionate punishments and expressed the
view that “[p]unishments ought unquestionably to be moderate and mild.”
490
Although
Wilson supported the passage of the Pennsylvania law limiting the death penalty to first-
degree murder, he acknowledged in his extensive writings that premeditated murder was
still commonly punished by death.
491
¶106 But Wilson also took pride in progressive ideas and how few American crimes
were punishable by death. In charging a Virginia grand jury in 1791, Wilson began with
two directives: “To prevent crimes is the noblest end and aim of criminal jurisprudence.”
“To punish them is one of the means necessary for the accomplishment of this noble end
and aim.”
492
Near the end of his address, Wilson specifically invoked Beccaria, calling
him “eloquent and benevolent,” and echoed Beccaria’s approach, saying, “[l]et the
punishment be proportioned—let it be analogous—to the crime.”
493
Wilson also proudly
proclaimed: “How few are the crimes—how few are the capital crimes, known to the
laws of the United States, compared with those known to the laws of England!”
494
¶107 In discussing punishments, Wilson contrasted “moderate and mild” sentences with
more severe sanctions, noting how “one degree of severity opens and smooths the way
for another, till, at length, under the specious appearance of necessary justice, a system of
cruelty is established by law.”
495
Telling grand jurors that “cruelty” is the “parent of
487
Id. Madison’s letter further stated, “I must ask the favor of you to make no possible use of this letter,”
adding that his letter was “meant merely” as a “friendly” reply. Id.
488
JAMES MADISON: WRITINGS, 1772-1836, at 488 (1999).
489
2 COLLECTED WORKS OF JAMES WILSON, supra note 88, at ch. I.
490
Id.; see also HERODOTUS: THE HISTORIES 150 (Robin Waterfield, trans. 1998).
491
2 COLLECTED WORKS OF JAMES WILSON, supra note 88, at ch. IV (“Of Crimes Against the Right of
Individuals to Personal Safety”); Binder, supra note 150, at 119 (noting that Wilson and others promoted
the law dividing murder into degrees).
492
1 COLLECTED WORKS OF JAMES WILSON (Kermit L. Hall & Mark David Hall, eds. 2007), available at
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=2072&Itemid=27.
493
Id.
494
Id.
495
Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
264
slavery,” Wilson called “cruel” punishments “dastardly and contemptible.”
496
“It is the
opinion of some writers, highly respected for their good sense, as well as for their
humanity,” Wilson noted, no doubt alluding once more to Beccaria, “that capital
punishments are, in no case, necessary. It is an opinion, which I am certainly well
warranted in offering—that nothing but the most absolute necessity can authorize
them.”
497
Decrying any “tyrant” who gave “standing instructions to his executioners” to
“protract the expiring moments of the tortured criminal” and to “manage the butchering
business with such studied and slow barbarity” as to prolong the pain, Wilson also added,
speaking again of executions: “Another opinion I am equally warranted in offering—that
they should not be aggravated by any sufferings, except those which are inseparably
attached to a violent death.”
498
C. The Constitutional Convention and the Founders’ Debates
¶108 Even though the punishment of crime is a central role of government, federal
criminal law issues were debated only modestly at the Constitutional Convention.
499
The
words “punish” and “Punishment” appear in the Constitution, but capital punishment is
not mentioned in connection with those particular references.
500
Limited discussion of
the death penalty, however, did occur at the Convention on clauses other than the Eighth
Amendment.
501
For instance, the Bankruptcy Clause was adopted on September 3, 1787
over the recorded dissent of Roger Sherman
502
of Connecticut: “Mr. Sherman observed
that Bankruptcies were in some cases punishable with death by the laws of England & He
did not chuse to grant a power by which that might be done here.”
503
Similarly, the
496
Id.
497
Id.
498
Id.
499
See Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal
Jurisdiction, 45 E
MORY L.J. 1, 25–26 (1996) (“Debate on substantive criminal law issues almost
exclusively consisted of four main topics: piracy, crimes against the law of nations, treason, and
counterfeiting.”).
500
See U.S. CONST., art. I, § 3, cl. 7 (impeached person who is convicted “shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law”); U.S. C
ONST., art. I, § 8, cl. 6
(“Congress shall have Power . . . To Provide for the Punishment of counterfeiting the Securities and current
Coin of the United States.”); U.S. C
ONST., art. I, § 8, cl. 10 (“Congress shall have Power . . . To define and
punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”); U.S.
C
ONST., art. III, § 3, cl. 2 (“Congress shall have Power to declare the Punishment of Treason.”).
501
See Randolph J. Haines, The Uniformity Power: Why Bankruptcy Is Different, 77 AM. BANKR. L.J. 129,
153 (2003) (“The only reservation expressed at the Convention about the Bankruptcy Clause, by Roger
Sherman, did not focus upon its uniformity provision, but rather that Congress might include a death
penalty for fraudulent debtors as did the English model.”); Ryan Norwood, None Dare Call It Treason: The
Constitutionality of the Death Penalty for Peacetime Espionage, 87 C
ORNELL L. REV. 820, 845 n.170
(2002) (“Some of the Framers apparently believed that th[e] constitutional definition of treason itself
foreclosed the death penalty for other crimes against the state. During a debate over the treason clause,
Rufus King warned that ‘the controversy relating to Treason might be of less magnitude than was
supposed; as the legislature might punish capitally under other names than Treason.’” (quoting 2 T
HE
RECORDS OF THE FEDERAL CONVENTION OF 1787, at 347 (Max Farrand ed., 1966))).
502
Ry. Labor Executives’ Ass’n v. Gibbons, Trustee, 455 U.S. 457, 472 (1982); see Mark Bradshaw, The
Role of Politics and Economics in Early American Bankruptcy Law, 18 W
HITTIER L. REV. 739, 741 n.12
(1997) (noting that Roger Sherman’s concern was “likely based on an English bankruptcy law passed in
1705, which gave the English courts the power to charge a debtor with a felony if he failed to surrender his
property and disclose his affairs”).
503
2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 501, at 489. After Sherman’s comment
Vol. 4:2] John D. Bessler
265
debate over the Treason Clause centered on how “Treason” should be defined and
“whether treason committed against a State (as opposed to against the United States)
could be separately punished.”
504
After the Framers debated the scope of the Treason
Clause, the First Congress passed a law making treason punishable by death—though, at
the Constitutional Convention of 1787, the Framers themselves rejected an attempt to
exclude “cases of treason” from the President’s pardoning power.
505
¶109 Outside the Convention, anti-Federalist George Mason feared that Congress would
use the Necessary and Proper Clause to create “new Crimes” or “inflict unusual and
severe Punishments.”
506
In the campaign for ratification of the original Constitution,
James Iredell, an ardent Federalist writing under the alias of “Marcus,” replied to
Mason’s concern, trying to meet it: “The expressions ‘unusual and severe’ or ‘cruel and
unusual’ surely would have been too vague to have been of any consequence, since they
admit of no clear and precise signification.”
507
“If to guard against punishments being
too severe, the Convention had enumerated a vast variety of cruel punishments, and
prohibited the use of any of them, let the number have been ever so great,” Iredell mused,
“an inexhaustible fund must have been unmentioned, and if our government had been
disposed to be cruel their invention would only have been put to a little more trouble.”
508
Iredell—who thought “a labyrinth of detail” in “the original constitution of a government
would have appeared perfectly ridiculous”—thus believed the amendment unnecessary,
and before the vote, another delegate—Gouverneur Morris of Pennsylvania—had attempted to reassure
Sherman. As it was reported: “Mr. GOVR. MORRIS said this was an extensive & delicate subject. He
would agree to it because he saw no danger of abuse of the power by the Legislature of the U.S.” Frederick
P. Corbit, The Founding Fathers’ Influence on Bankruptcy Law, 26 A
M. BANKR. INST. J. 50, 50 n.4 (2007)
(citing The Avalon Project: Madison Debates, Sept. 3, 1787, Yale Law School,
http://avalon.law.yale.edu/18th_century/debates_903.asp).
When Congress put in place a bankruptcy code, it did not provide for the death penalty for debtors—a
fact at least a couple of the Founding Fathers would no doubt have seen as enlightened policy, especially
after a financial ruin, driven by speculation, in 1797. See Rhett Frimet, The Birth of Bankruptcy in the
United States, 96 C
OM. L.J. 160, 166–67 (1991) (noting that James Wilson fled to North Carolina to avoid
imprisonment in Pennsylvania for unpaid debts and that Robert Morris, a financier of the American
Revolution, was incarcerated in Philadelphia); see also B
RUCE H. MANN, REPUBLIC OF DEBTORS:
BANKRUPTCY IN THE AGE OF AMERICAN INDEPENDENCE 103–06 (2002) (noting that a lawyer, death penalty
opponent William Keteltas, campaigned against imprisonment for debtors though a newspaper, Forlorn
Hope, published in 1800, and even reprinted a chapter from Beccaria’s book, in which Beccaria asked
“upon what barbarous pretence” an “honest bankrupt” is “ranked with criminals”).
504
See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of
Justice’s Role, 26 F
ORDHAM URB. L.J. 347, 361 n.52 (1999). “Treason against the United States,” as set
forth in Article III of the Constitution, “shall consist only in levying War against them, or in adhering to
their Enemies, giving them Aid and Comfort.” U.S. C
ONST. art. III, § 3. According to the Treason Clause:
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act,
or on Confession in open Court.” Id.
505
See 1 Stat. 122, ch. 9 § 1 (1790); Todd David Peterson, Congressional Power Over Pardon & Amnesty:
Legislative Authority in the Shadow of Presidential Prerogative, 38 W
AKE FOREST L. REV. 1225, 1230
(2003). In the United States, no one has actually been executed for treason in many decades. Wilson,
supra note 221, at 156.
506
See U.S. CONST. art. 1, § 8, cl. 18 (“Congress shall have Power . . . [t]o make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers.”); Mannheimer, supra note 465, at
865 & n.253 (quoting George Mason, Objections to the Constitution of Government Formed by the
Convention (1787), reprinted in 2 HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST 13 (1981)).
507
Claus, supra note 449, at 132.
508
Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 544 n.119 (2003);
Jack Balderson, Jr., Temporal Units of Prosecution and Continuous Acts: Judicial and Constitutional
Limits, 36 S
AN DIEGO L. REV. 195, 219 (1999).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
266
saying, “Let us also remember, that as those who are to make those laws must themselves
be subject to them, their own interest and feelings will dictate to them not to make them
unnecessarily severe . . . .”
509
D. The Eighth Amendment in Context
¶110 What can be said with certainty about the Eighth Amendment is that in America’s
founding era the words “cruel” and “unusual” had a number of common, everyday uses,
as is still the case today.
510
Benjamin Franklin, for instance, called it “unjust and cruel”
to punish a man on account of the guilt of another, and he referred to “cruel, unjust and
barbarous Tempers.”
511
He also penned phrases such as “cruel Animosities,”
512
“cruel
Captivity,”
513
and “cruel treatment,”
514
and even referred to a “cruel Mother-in-Law.”
515
In his writings, he also used the phrases “cruel Murders,”
516
“that cruel Disease,”
517
and
“that cruel Gout,”
518
and made reference to “unusual Treatment,”
519
“unusual Quantities
of Ice,”
520
and “unusual Words in the Pamphlet.”
521
In an American case reporter,
published in 1796, a solicitor-general referred to a “beating” as “cruel or unusual.”
522
509
Claus, supra note 449, at 132. See Philip A. Hamburger, The Constitution’s Accommodation of Social
Change, 88 M
ICH. L. REV. 239, 314 n.284 (1989). William Randolph agreed, stating that “[b]efore these
cruel punishments can be inflicted, laws must be passed, and judges must judge contrary to justice. This
would excite universal discontent and detestation of the members of the government. They might involve
their friends in the calamities resulting from it, and could be removed from office. I never desire a greater
security than this, which I believe to be absolutely sufficient.” Id. (citing 3 D
EBATES ON THE ADOPTION OF
THE
FEDERAL CONSTITUTION 468 (Jonathan Elliot ed, 2d ed. 1836)).
510
See, e.g., Granucci, supra note 431, at 860 (“In the seventeenth century, the word ‘cruel’ had a less
onerous meaning than it has today. In normal usage it simply meant severe or hard. The Oxford English
Dictionary quotes as representative Jonathan Swift, who wrote in 1710, ‘I have got a cruel cold, and staid
within all this day.’ Sir William Blackstone, discussing the problem of ‘punishments of unreasonable
severity,’ uses the word ‘cruel’ as a synonym for severe or excessive.”). It is thus clear that the Framers
understood that in using the word “cruel” they were putting a word in the Constitution that, in the future,
would be subject to varying interpretations.
511
See Benjamin Franklin, A Defense of Mr. Hemphill’s Observations (1735),
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
512
Letter from Benjamin Franklin to Richard Jackson, June 25, 1764,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
513
Letter from Benjamin Franklin to John Jay, Apr. 24, 1782,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
514
Letter from Benjamin Franklin and others to Philip Schuyler, May 11, 1776,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
515
Letter from Benjamin Franklin to David Hartley, Feb. 12, 1778,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
516
Letter from Benjamin Franklin to Richard Oswald, July 28, 1782,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
517
Letter from Benjamin Franklin to Joseph Galloway, Feb. 6, 1772,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
518
Letter from Benjamin Franklin to Mary Stevenson, Mar. 14, 1764,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
519
The Pennsylvania Gazette, Oct. 7, 1742, http://www.franklinpapers.org/franklin/framedVolumes.jsp
(last visited Aug. 31, 2009).
520
Letter from Benjamin Franklin to Richard Jackson, Dec. 6, 1753,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
521
Letter from Benjamin Franklin to David Hume, Sept. 27, 1760,
http://www.franklinpapers.org/franklin/framedVolumes.jsp (last visited Aug. 31, 2009).
522
State v. Norris, 2 N.C. 429, 1796 WL 327, at *5 (N.C. Super. L. & Eq. 1796); cf. Commonwealth v.
Tilton, 8 Metcalf 232, 234, 1844 WL 4263, at *3 (Mass. 1844) (referring to the sport of cockfighting as
Vol. 4:2] John D. Bessler
267
There is even evidence that the framers of the English Bill of Rights and the Eighth
Amendment may have understood the concept of “cruel and unusual” punishments as a
unitary concept of inhumane or cruel punishment.
523
¶111 Interestingly, some state constitutional provisions enacted shortly before and after
the Eighth Amendment’s ratification simply prohibited “cruel punishments,” dropping
any reference to the term “unusual.”
524
This suggests that some legislators may have
viewed the “unusual” language as mere surplusage. Over time, of course, the various
language variants—“cruel or unusual,” “cruel and unusual,” and simply “cruel”—all
persisted, even finding their way into federal and state laws.
525
By 1790, nine states had
constitutional provisions barring “cruel and unusual,” “cruel or unusual,” or “cruel”
punishments.
526
And by the time the Fourteenth Amendment was adopted in 1868,
seventeen state constitutions banned cruel and unusual punishments, fourteen state
constitutions banned cruel or unusual punishments, and four state constitutions banned
cruel punishments without any reference to the “unusual” terminology.
527
Although a
“cruel” or “unusual” punishment may itself imply a disproportionate one, some state
“barbarous and cruel”).
523
See Stacy, supra note 271, at 504–05, 531. As one commentator, Tom Stacy, has explained: “The
history of the English Bill of Rights reinforces the conclusion that the phrases ‘cruel and unusual’ and
‘cruel or unusual’ were understood to capture the same meaning. Just months after the House of Lords
approved the Bill’s prohibition against ‘cruel and unusual punishments,’ a group of Lords filed a dissenting
statement in the case of Titus Oates. The dissenting Lords concluded that the punishments imposed in
Oates’s case violated the Bill of Rights, which they described as providing that neither ‘cruel nor unusual
punishments [be] inflicted.’ Their mistake suggests that they understood prohibitions of ‘cruel and
unusual’ and ‘cruel or unusual’ punishments as equivalents.” Id. at 503–04; but see Turnipseed v. State, 6
Ala. 664, 1844 WL 301, at *1 (Ala. 1844) (interpreting a state statute prohibiting “cruel or unusual
punishment” and holding that “[t]rue, the statute makes two offences, or rather does not require that the
punishment inflicted upon a slave shall be both cruel and unusual to subject the offender to its sanctions: it
is enough if the proof show it to be either the one or the other.”); Dan Friedman, Tracing the Lineage:
Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia,
Maryland, and Delaware, 33 R
UTGERS L.J. 929 (2002). But this line of argument is far from settled. For
example, in discussing the difference between “cruel and unusual” and “cruel or unusual,” the Supreme
Court of Michigan stated, “it seems self-evident that any adjectival phrase in the form ‘A or B’ necessarily
encompasses a broader sweep than a phrase in the form ‘A and B.’ The set of punishments which are either
‘cruel’ or ‘unusual’ would seem necessarily broader than the set of punishments which are both ‘cruel’ and
‘unusual.’” People v. Bullock, 485 N.W.2d 866, 872 n.11 (Mich. 1992).
524
Stacy, supra note 271, at 504 (noting that Pennsylvania and South Carolina enacted constitutions in
1790 that simply prohibited “cruel punishments” and that Delaware and Kentucky enacted constitutions in
1792 that prohibited “cruel punishments” and that “[n]umerous state constitutions enacted after the
Founding period used this same language”).
525
See Turnipseed, 6 Ala. at 664, 1844 WL 301, at *1 (noting provision of penal code declaring that “[n]o
cruel or unusual punishment shall be inflicted on any slave”); State v. Wilson, 25 S.C.L. 163, 1840 WL
2007, at *1 (S.C. App. L. 1840) (referencing a 1740 law punishing anyone who “shall . . . cut out the
tongue, put out the eye, castrate, or cruelly scald, burn, or deprive any slave of any limb or member, or
shall inflict any other cruel punishment, other than by whipping, or beating with a horse-whip, cow-skin,
switch or small stick, or by putting irons on, or confining, or imprisoning such slave . . .”); United States v.
Winn, 28 F. Cas. 732, 732 (C.C. Mass. 1838) (referencing “the act of March 3, 1835, § 3 [4 Stat. 776]”
making it unlawful for “any master or other officer of any American ship or vessel on the high seas” to
“inflict” upon any “crew” member “of such ship or vessel” any “cruel and unusual punishment”); Markham
v. Close, 2 La. 581, 1831 WL 877, at *3 (La. 1831) (discussing “16th section of the Black Code,” which
penalized anyone who “should inflict any cruel punishment, except flogging, or striking with a whip,
leather thong, switch or small stick, or putting in irons, or confining such slave . . .”).
526
Stinneford, supra note 271, at 1798–99.
527
Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the
Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and
Tradition?, 87 T
EX. L. REV. 8, 78 (2008).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
268
constitutions, including New Hampshire’s 1783 constitution, specifically called for
“proportioned” punishments.
528
¶112 Recently, the Eighth Amendment’s use of the word “unusual” has attracted a lot of
scholarly attention.
529
One academic writes that “unusual” as used in the Eighth
Amendment was “a term of art that referred to government practices that are contrary to
‘long usage’ or ‘immemorial usage.’”
530
“The opposite of a practice that enjoyed ‘long
usage,” law professor John Stinneford wrote in 2008, “was an ‘unusual’ practice, or in
other words, an innovation.”
531
The term “unusual” itself, of course, has always had—
and continues to have—a straightforward dictionary definition.
532
In common parlance,
the word simply means “not usual,” “not common” or “rare.”
533
VII. THE SUPREME COURT’S EIGHTH AMENDMENT JURISPRUDENCE
A. Judicial Construction of the Eighth Amendment
¶113 The meaning of the Eighth Amendment and similar state-law provisions has been
the subject of much controversy. “The feeling that modern Eighth Amendment
jurisprudence has gone off the rails,” notes one commentator, “has arisen, at least in part,
from the wildly inconsistent rulings that have emanated from the Supreme Court over the
past few decades, particularly regarding proportionality in sentencing and the death
penalty.”
534
That commentator also writes that “[a] number of scholars have previously
pointed out the cruel irony inherent in the fact that the evolving standards of decency test
ties the rights of criminal defendants to the very same majority opinion from which the
Eighth Amendment is supposed to protect them.”
535
528
See, e.g., N.H. CONST. art. XVIII (“No wise legislature will affix the same punishment to the crimes of
theft, forgery and the like, which they do to those of murder and treason . . . . [A] multitude of sanguinary
laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate,
mankind.”); see also Calabresi & Agudo, supra note 527, at 83 (“Only nine states out of thirty-seven in
1868—a minority of slightly less than one-quarter of the states then in the Union—explicitly required in
their state constitutions that all penalties and punishments be proportioned to the offense.”).
529
See, e.g., Stinneford, supra note 271, at 1744.
530
Id. at 1745, 1770.
531
Id. at 1745.
532
Id. at 1767 (“In the seventeenth and eighteenth centuries, the term ‘unusual’ had many of the meanings
we currently associate with the term: ‘rare,’ ‘uncommon,’ ‘out of the ordinary.’”).
533
See United States v. Dyers, No. 1:06-MJ-455-AJB, 2007 WL 397109, at *8 (N.D. Ga. Jan. 30, 2007);
Adair v. United States, 70 Fed. Cl. 65, 72 (2006); Brown v. Imperial Trading Co., 815 So.2d 1084, 1088
(La. App. 2002); People v. Frost, No. 213983, 1999 WL 33328872, at *1 (Mich. Ct. App. Dec. 7, 1999).
The word “unusual” has also been variously defined by American courts to mean “being out of the
ordinary,” “uncommon,” “deviating from the norm,” “strange,” “exceptional,” “being unlike others” or
“not in accordance with usage, custom, or habit.” Jones v. State, 701 So. 2d 76, 85 n.22 (Fla. 1997);
Downs v. J. & J. Maint., Inc., 702 So. 2d 845, 848 (La. Ct. App. 1997); People v. Sharp, 481 N.W.2d 773,
775 (Mich. App. 1992); State v. Beyer, 441 N.W.2d 919, 922 (N.D. 1989); Commonwealth v. McDonald,
19 Pa. D. & C.2d 253, 255 (Pa. Quar. Sess. 1959).
534
Stinneford, supra note 271, at 1740.
535
Id. at 1754 n.81; cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1942) (“The very purpose
of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as legal principles to be applied by
the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no
elections.”).
Vol. 4:2] John D. Bessler
269
¶114 Judicial decisions give some flavor for how the Eighth Amendment was understood
in the early days of the republic. For example, in 1825, the Pennsylvania Supreme Court
struck down the punishment of Nancy James. Adjudged “a common scold” in 1824,
James had been sentenced “to be placed in a certain engine of correction, called a cucking
or ducking-stool . . . and being so placed therein, to be plunged three times into the
water.”
536
In striking down the punishment, the Pennsylvania Supreme Court did not rely
on constitutional grounds but noted:
The object of the framers of the act of 1790, was the abolition of all
infamous, disgraceful, public punishments—all cruel and unnatural
punishments—for all the classes of minor offences and misdemeanors, to
which they had been before applied.
. . . .
In coming to the conclusion, that the ducking-stool is not the punishment
of scolds, I do not take into consideration the humane provisions of the
constitutions of the United States and of this state, as to cruel and unusual
punishments, further than they show the sense of the whole community. If
the reformation of the culprit, and prevention of the crime, be the just
foundation and object of all punishments, nothing could be further
removed from these salutary ends, than the infliction in question. It
destroys all personal respect; the women thus punished would scold on for
life, and the exhibition would be far from being beneficial to the
spectators. What a spectacle would it exhibit!
537
¶115 The Supreme Court first examined the Eighth Amendment’s history in Weems v.
United States.
538
In that case, the Court held that a fifteen-year sentence in irons and
shackles
539
for falsifying a document was excessive.
540
“[I]t is a precept of justice,” the
Court ruled, echoing back to Beccaria, “that punishment for crime should be graduated
and proportioned to offense.”
541
After citing a legal scholar for the proposition that the
536
James v. Commonwealth, 12 Serg. & Rawle 220, 1825 WL 1899, at *1 (Pa. 1825).
537
Id. at *10, 13.
538
217 U.S. 349 (1910).
539
Id. at 358. At issue in Weems was a “cadena temporal” sentence imposed by a Philippine court. See
Solem v. Helm, 463 U.S. 277, 287 (1983); see also id. at 306–07 (Burger, C.J., dissenting) (“In Weems, the
Court had struck down as cruel and unusual punishment a sentence of cadena temporal imposed by a
Philippine Court. This bizarre penalty, which was unknown to Anglo-Saxon law, entailed a minimum of
12 years’ imprisonment chained day and night at the wrists and ankles, hard and painful labor while so
chained, and a number of ‘accessories’ including lifetime civil disabilities.”).
540
Weems, 217 U.S. at 357, 382; see also Solem, 463 U.S. at 287 (discussing Weems); id. at 290 (“we hold
as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant
has been convicted”).
541
Weems, 217 U.S. at 367; see also Schwartz & Wishingrad, supra note 75 (discussing Weems). It is clear
that the Eighth Amendment protects everyone. See Roper v. Simmons, 543 U.S. 511, 560 (2005).
Academics have diverged over whether the Eighth Amendment should be read to contain a proportionality
requirement. Compare Malcolm E. Wheeler, Toward a Theory of Limited Punishment: An Examination of
the Eighth Amendment, 24 S
TAN. L. REV. 838, 841 (1972) (finding the Eighth Amendment restricts the
nature and amount of punishment), and Richard S. Frase, Excessive Prison Sentences, Punishment Goals,
and the Eighth Amendment: “Proportionality” Relative to What?, 89 M
INN. L. REV. 571, 646 (2005) (“It is
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
270
Eighth Amendment was “‘adopted as an admonition to all departments of the national
government, to warn them against such violent proceedings as had taken place in England
in the arbitrary reigns of some of the Stuarts,’”
542
the Court held that “a principle, to be
vital, must be capable of wider application than the mischief which gave it birth.”
543
¶116 The Court in Weems found that the Eighth Amendment was originally motivated by
a distrust of power—a distrust deeply felt by Patrick Henry and others.
544
“[I]t was
believed,” the Court explained, “that power might be tempted to cruelty.”
545
In fact, as
Virginia’s governor, Patrick Henry himself had advocated for reform of the state’s death
penalty laws. As one of Henry’s biographers has written:
As governor, Henry attempted to reform a number of British laws he
considered harsh. The death penalty, for example, was imposed for many
felonies, regardless of the severity of the crime. This was a practice that
Henry felt was both unjust and cruel. He thus developed a plan of
granting pardons, after hard labor, for lesser crimes. Writing to Charles
Pearson, who was in charge of the pardoned prisoners, Henry commanded
him “to observe such a degree of humanity towards these people as their
condition will permit, in everything that relates to them.” They are to
have “plenty of wholesome food” and their clothes are to be “warm and
comfortable.”
546
¶117 After noting the Founders’ distrust of power, the Supreme Court in Weems then
offered its own interpretive guidance. “Legislation, both statutory and constitutional, is
enacted, it is true, from an experience of evils but its general language should not,
therefore, be necessarily confined to the form that evil had theretofore taken,” the Court
ruled.
547
“This is peculiarly true of constitutions,” the Court went on to explain, adding:
“They are not ephemeral enactments, designed to meet passing occasions. They are, to
use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as
human institutions can approach it.’”
548
In other words, the Constitution must be viewed
as a vibrant, living document, not an antiquated catalog of eighteenth-century thought.
particularly important to recognize retributive proportionality limits on lengthy prison terms under the
Eighth Amendment.”), with Charles W. Schwartz, Eighth Amendment Proportionality Analysis and the
Compelling Case of William Rummel, 71 J.
CRIM. L. & CRIMINOLOGY 378, 419–20 (1980) (arguing that
judicial restraint counsels against recognizing a proportionality limitation). However, the Supreme Court
has made clear that in capital cases, the Eighth Amendment requires that a punishment must be
“proportioned” to the offense. Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (citations omitted).
542
Weems, 217 U.S. at 371 (quoting 2 JOSEPH STORY, ON THE CONSTITUTION § 1903 (5th ed. 1891)).
543
Id. at 373.
544
Id. at 372–73.
545
Id. at 373.
546
See DAVID J. VAUGHAN, GIVE ME LIBERTY: THE UNCOMPROMISING STATESMANSHIP OF PATRICK
HENRY 175–76 (1997).
547
Weems, 217 U.S. at 373. The Court emphasized that “time works changes, brings into existence new
conditions and purposes.” Id.
548
Id. As the Court explained: “The future is their care, and provision for events of good and bad
tendencies of which no prophecy can be made. In the application of a constitution, therefore, our
contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution
would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles
would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared
in words might be lost in reality.” Id. Had a purely “historical” interpretation of the Eighth Amendment
Vol. 4:2] John D. Bessler
271
¶118 The Supreme Court has thus held that the Eighth Amendment bars not only
“barbaric” punishments but also those that are “excessive” or “disproportionate” to the
crime.
549
Under Gregg, a punishment is “excessive” if it (1) “makes no measurable
contribution to acceptable goals of punishment and hence is nothing more than the
purposeless and needless infliction of pain and suffering,” or (2) “is grossly out of
proportion to the severity of the crime.”
550
Whether a death sentence is
“disproportionate” to the crime committed depends on societal standards, controlling
precedents, and the individual views of the Supreme Court Justices themselves.
551
A
government must—it has been said more than once—exercise its power to punish “within
the limits of civilized standards.”
552
B. Human Dignity and the Evolving Standards of Decency
¶119 A claim that a punishment is excessive is not judged by the standards that prevailed
in pre-Revolutionary War times or when the Bill of Rights was adopted.
553
Instead, the
“basic concept” underlying the Eighth Amendment is “human dignity,” and the Eighth
Amendment “must draw its meaning from the evolving standards of decency that mark
the progress of a maturing society.”
554
The Supreme Court thus looks to the “norms” that
“currently prevail,”
555
frequently trying to discern whether or not there is a “national
consensus” against one kind of punishment or another.
556
But “[c]onsensus is not
dispositive,” and in assessing whether a punishment is disproportionate to the crime, it is
“the Court’s own understanding and interpretation of the Eighth Amendment’s text,
history, meaning, and purpose” that must be consulted.
557
The “‘standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment,’” the Court
prevailed in Weems, Justice Brennan noted in Furman, the “Cruel and Unusual Punishments” clause
“would have been effectively read out of the Bill of Rights.” Furman v. Georgia, 408 U.S. 238, 265 (1972)
(Brennan, J., concurring).
549
Kennedy, 128 S. Ct. at 2649 (citing Weems with approval); Coker v. Georgia, 433 U.S. 584, 592 (1977);
Solem v. Helm 463 U.S. 277, 284 (1983); see also Furman, 408 U.S. at 244–45 (Douglas, J., concurring).
In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court put it this way: “Thus, we have read the text
of the Amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that
may or may not be excessive.” Id. at 311 n.7.
550
Coker, 433 U.S. at 592. Seven Justices recently reiterated that the Eighth Amendment forbids prison
sentences that are grossly disproportionate to the crime. Ewing v. California, 538 U.S. 11, 23 (2003)
(plurality opinion); id. at 35 (Breyer, J., dissenting).
551
Kennedy, 128 S. Ct. at 2650.
552
Id. at 2658 (quoting Trop v. US, 356 U.S. 86, 99 (1958)).
553
Kennedy, 128 S. Ct. at 2649; Atkins, 536 U.S. at 311.
554
Trop, 356 U.S. at 100–01; see also Kennedy, 128 S. Ct. at 2649 (quoting Trop with approval). The
Supreme Court has stated that punishment is justified under one or more of three principle rationales:
rehabilitation, deterrence and retribution. Kennedy, 128 S. Ct. at 2649. The last of these justifications, the
Court has noted, however, can sometimes “contradict the law’s own ends,” particularly in the capital
punishment context. Id. at 2650. “When the law punishes by death,” the Court emphasized in 2008, “it
risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and
restraint.” Id.
555
Kennedy, 128 S. Ct. at 2649; cf. id. at 2656.
556
Id. at 2651, 2657–58.
557
Id. at 2650; Roper v. Simmons, 543 U.S. 551, 564 (2005) (“The evidence of national consensus against
the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held
sufficient to demonstrate a national consensus against the death penalty for the mentally retarded.”).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
272
has emphasized, explaining that “[t]he standard itself remains the same, but its
applicability must change as the basic mores of society change.”
558
¶120 To assess the proportionality of a particular punishment, the Supreme Court once
noted that “Eighth Amendment judgments should not be, or appear to be, merely the
subjective views of individual Justices,” but “should be informed by objective factors to
the maximum extent possible.”
559
While Supreme Court Justices now explicitly reserve
the right to consult their own sense of morality in making these judgments, more often
than not the Court weighs a host of “objective” criteria before reaching its decisions.
560
As the Court has held: “When sentences are reviewed under the Eighth Amendment,
courts should be guided by objective factors that our cases have recognized.”
561
¶121 Over the years, the nation’s highest court has consulted many different measures.
In its cases, the Supreme Court has examined the gravity of the offense,
562
a penalty’s
severity,
563
the circumstances of the defendant’s crime,
564
public attitudes,
565
state
practice,
566
legislative acts,
567
and jury verdicts.
568
The Court has also compared the
sentences imposed on other criminals in the same jurisdiction or in other jurisdictions.
569
But no one factor or criterion is dispositive in a given case,
570
no penalty is per se
constitutional, and it is the “independent judgment” of Justices themselves that must be
brought to bear in deciding a punishment’s acceptability under the Eighth Amendment.
571
558
Kennedy, 128 S. Ct. at 2649 (quoting Furman v. Georgia, 408 U.S. 238, 382 (Burger, C. J., dissenting)).
559
Coker v. Georgia, 433 U.S. 584, 592 (1977); see also Atkins v. Virginia, 536 U.S. 304, 312 (2002)
(citations omitted).
560
The independent judgment and the “objective” criteria that the Supreme Court Justices consult are
addressed elsewhere in this article.
561
Solem v. Helm 463 U.S. 277, 290 (1983).
562
Id. at 290–91.
563
Id. at 291.
564
Id.
565
Coker v. Georgia, 433 U.S. 584, 592 (1977).
566
Kennedy v. Louisiana, 128 S. Ct. 2641, 2650 (2008).
567
Id. The Supreme Court has stated that the “‘clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country’s legislatures.’” Atkins v. Georgia, 536 U.S.
304, 312 (2002).
568
Coker, 433 U.S. at 592; see also Thompson v. Oklahoma, 487 U.S. 815, 822 n. 7, 852 (citations
omitted).
569
Solem v. Helm, 463 U.S. 277, 291 (1983). Occasionally, the Supreme Court has even cited foreign law
in support of its conclusions. See id. at 292 (citing Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982)).
Indeed, in Roper, the Supreme Court, citing international treaties, outlawed the execution of juvenile
offenders and noted that its ruling found “confirmation” in the fact that “the United States is the only
country in the world that continues to give official sanction to the juvenile death penalty.” Roper v.
Simmons, 543 U.S. 551, 575–78. “It is proper we acknowledge the overwhelming weight of international
opinion against the juvenile death penalty,” the Court concluded. Id. at 578.
570
Solem, 463 U.S. at 290 n.17; see also Kennedy, 128 S. Ct. at 2658. In Atkins, in examining “a much
broader social and professional consensus,” the Supreme Court even referenced positions taken by
professional organizations and religious groups, polling data, and the views of the “world community”
opposing the death penalty’s imposition on mentally retarded offenders. Atkins v. Virginia, 536 U.S. 304,
316–317 n.21 (2002). Although the Court in Atkins emphasized “these factors are by no means
dispositive,” the Court noted that “their consistency with the legislative evidence lends further support to
our conclusion that there is a consensus among those who have addressed the issue.” Id.; see also
Thompson, 487 U.S. at 830–31 n.31.
571
Kennedy, 128 S. Ct. at 2650; see also Roper, 543 U.S. at 564; Solem, 463 U.S. at 290; Coker, 433 U.S.
at 597; Atkins, 536 U.S. at 321.
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273
¶122 Ironically, by allowing the use of “death-qualified” juries, whereby death penalty
opponents are excluded from capital juries, the Supreme Court has skewed some of the
very data it considers in making Eighth Amendment judgments. Indeed, because capital
juries are usually required to reach unanimous verdicts, death-qualified juries lead to
more death sentences than might otherwise be expected as any potential hold-outs are
eliminated from the jury pool at the outset.
572
“Litigation involving both challenges for
cause and peremptory changes,” Justice John Paul Stevens has written, “has persuaded
me that the process of obtaining a ‘death qualified jury’ is really a procedure that has the
purpose and effect of obtaining a jury that is biased in favor of conviction.”
573
“The
prosecutorial concern that death verdicts would rarely be returned by 12 randomly
selected jurors,” Justice Stevens concluded, “should be viewed as objective evidence
supporting the conclusion that the penalty is excessive.”
574
C. The Supreme Court’s Eighth Amendment Cases
¶123 Since Weems, the Eighth Amendment has been interpreted—and applied—in a
variety of contexts by the Supreme Court. In Trop v. Dulles,
575
a U.S. Army private was
court-martialed, convicted of desertion, given a dishonorable discharge, and sentenced to
“three years at hard labor” with “forfeiture of all pay and allowances.”
576
He was also
stripped of his American citizenship.
577
Finding an Eighth Amendment violation, the
Supreme Court held that “the total destruction of the individual’s status in organized
society” is “a form of punishment more primitive than torture.”
578
“[T]he expatriate has
lost the right to have rights,” the Court ruled.
579
The scope of the Eighth Amendment, the
Court emphasized, “is not static,” with the Court noting that “[t]he basic concept
underlying the Eighth Amendment is nothing less than the dignity of man.”
580
“While
the State has the power to punish,” the Court stated, “the Amendment stands to assure
that this power be exercised within the limits of civilized standards.”
581
The Court also
remarked that “[t]he civilized nations of the world are in virtual unanimity that
statelessness is not to be imposed as punishment for crime.”
582
572
Stanton D. Krauss, The Witherspoon Doctrine at Witt’s End: Death Qualification Reexamined, 24 AM.
CRIM. L. REV. 1, 2 (1986) (noting the unanimous verdict requirement in criminal cases); see also Uttecht v.
Brown, 127 S. Ct. 2218, 2238 (2007) (Stevens, J., dissenting) (arguing that “[m]illions of Americans
oppose the death penalty” and that “[a] cross section of virtually every community in the country includes
citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors
in capital cases”).
573
Baze v. Rees, 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring). Although the Supreme Court has
ruled that a capital defendant may challenge for cause any prospective juror who would automatically vote
for death if the defendant were convicted of a capital crime, see Morgan v. Illinois, 504 U.S. 719 (1992),
there are probably very few people who fall into that category.
574
Baze, 128 S. Ct. at 1550 (Stevens, J., concurring). Beccaria himself believed that “[t]he law whereby
each man should be judged by his peers is a very useful one.” B
ECCARIA (Thomas ed.), supra note 1, at 30.
575
Trop v. Dulles, 356 U.S. 86 (1958).
576
Id. at 88.
577
Id. at 87–88.
578
Id. at 101.
579
Id. at 101–02.
580
Id. at 100–01.
581
Id. at 100.
582
Id. at 102.
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274
¶124 Also in the non-capital context, Robinson v. California
583
struck down a criminal
sentence and held that while “imprisonment for ninety days is not, in the abstract, a
punishment which is either cruel or unusual,” it may not be imposed for the “status” of
being “addicted to the use of narcotics.”
584
As Justice Stewart explained in Robinson:
“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of
having a common cold.”
585
And in Solem v. Helm,
586
the Court held that imposing a life-
without-possibility-of-parole sentence upon a repeat offender for uttering a $100 no-
account check was prohibited by the Eighth Amendment.
587
“Incarcerating him for life
without possibility of parole,” the Court ruled, “is unlikely to advance the goals of our
criminal justice system in any substantial way” and was found to be “disproportionate”
and “therefore prohibited by the Eighth Amendment.”
588
¶125 In capital cases, the Supreme Court has frequently used the Eighth Amendment to
restrict the categories of death-eligible offenses.
589
Ford v. Wainwright
590
barred the
execution of the insane.
591
Atkins v. Virginia,
592
in which the Court overruled a prior
583
Robinson v. California, 370 U.S. 660 (1962).
584
Id. at 666–67.
585
Id. at 667.
586
463 U.S. 277 (1983).
587
Id. at 296, 303. The Court classified the defendant’s previous offenses as “nonviolent” and “all
relatively minor.” Id. at 296–97. In making its ruling, the Court in Solem called the sentence at issue “far
more severe than the life sentence we considered in Rummel v. Estelle.” Solem, 463 U.S. at 297. The
criminal in Rummel v. Estelle, 445 U.S. 263 (1980), the Court emphasized, was parole-eligible in twelve
years whereas Jerry Helm, barring executive clemency, would spend “the rest of his life in the state
penitentiary.” Solem, 463 U.S. at 297, 301–02 (citing Rummel, 445 U.S. at 280).
588
Solem, 463 U.S. at 297 n.22, 303. In other non-capital cases, the Supreme Court has rejected some
prisoners’ Eighth Amendment claims. See Overton v. Bazzetta, 539 U.S. 126, 136–37 (2003) (the Eighth
Amendment did not restrict the ability of prison officials to suspend an inmate’s visitation privileges as a
means of ensuring prison discipline); Ewing v. California, 538 U.S. 11 (2003) (the Eighth Amendment did
not prohibit the State of California from sentencing a repeat offender to life imprisonment without the
possibility of parole for the theft of $1200 worth of golf clubs under the state’s “Three Strikes and You’re
Out” law); Harmelin v. Michigan, 501 U.S. 957 (1991) (life-without-parole sentence for possession of
cocaine upheld as constitutional even for offender with no prior criminal record); Whitley v. Albers, 475
U.S. 312, 319–21 (1986) (shooting of prisoner to quell riot did not violate a prisoner’s right to be free from
cruel and unusual punishment; only “unnecessary and wanton infliction of pain” is forbidden); Rhodes v.
Chapman, 452 U.S. 337, 339, 352 (1981) (housing two prisoners in one cell did not constitute “cruel and
unusual punishment”); Hutto v. Davis, 545 U.S. 370 (1982) (per curiam) (upholding forty year sentence for
possession and distribution of nine ounces of marijuana); Graham v. West Virginia, 224 U.S. 616, 631
(1912) (life sentence for a recidivist horse thief did not violate the Eighth Amendment).
589
The Supreme Court has specifically held, in fact, that capital punishment must “be limited to those
offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability
makes them ‘the most deserving of execution.’” Kennedy v. Louisiana, 128 S. Ct. 2641, at 2650 (2008)
(citing Roper v. Simmons, 543 U.S. 551, 568 (2005)). In other words, “the Court insists upon confining the
instances in which the punishment can be imposed.” Kennedy, 128 S. Ct. at 2650.
590
477 U.S. 399 (1986).
591
Id. at 409–10.
592
536 U.S. 304 (2002). The Atkins ruling certainly has the potential to lead other categories of offenders,
such as those suffering from schizophrenia or other forms of mental illness, to raise Eighth Amendment
claims. See Helen Shin, Is the Death of the Death Penalty Near? The Impact of Atkins and Roper on the
Future of Capital Punishment for Mentally Ill Defendants, 76 FORDHAM L. REV. 465 (2007); Ronald S.
Honberg, The Injustice of Imposing the Death Penalty on People with Severe Mental Illnesses, 54 C
ATH. U.
L. REV. 1153 (2005). Already, there is a palpable and growing distaste for the execution of the mentally ill,
and future litigation over capital punishment and mental illness seems inevitable. Richard C. Dieter, The
Path to an Eighth Amendment Analysis of Mental Illness and Capital Punishment, 54 C
ATH. U. L. REV.
1117, 1121 (2005) (predicting that “eventually state and federal legislation will emerge to provide the
Court with an objective basis for sparing the mentally ill from the death penalty”). In 1997, the U.N.
Vol. 4:2] John D. Bessler
275
precedent, citing a “dramatic shift in the state legislative landscape,”
593
outlawed the
execution of the mentally retarded.
594
Roper v. Simmons
595
barred the execution of
offenders who were under the age of eighteen at the time of their crimes.
596
Enmund v.
Florida
597
forbade the execution of a defendant who aided and abetted a robbery during
which a murder took place but in which that defendant did not take life, attempt to kill, or
intend that lethal force be used in the commission of the crime.
598
The thread running
through these Supreme Court cases is that the offender—as the Court itself has
acknowledged—had “a diminished personal responsibility for the crime.”
599
¶126 In Coker v. Georgia,
600
the Supreme Court also held that a death sentence was
“grossly disproportionate and excessive punishment” for the rape of an “adult woman.”
601
Emphasizing that Georgia, where the rape took place, was the sole U.S. jurisdiction
authorizing a sentence of death for that crime,
602
the Court held that the sentence violated
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions specifically asked countries that
execute the mentally ill “to bring their domestic legislation into conformity with international legal
standards.” Vidisha Barua, “Synthetic Sanity”: A Way Around the Eighth Amendment?, 44 C
RIM. LAW
BULLETIN 4 (2008).
593
The Court in Atkins overruled Penry v. Lynaugh, 492 U.S. 302 (1989), in which the Supreme Court
declined to find unconstitutional the execution of the mentally retarded. Although federal law and two
states, Georgia and Maryland, barred death sentences for the mentally retarded as of 1989, see Atkins, 536
U.S. at 313–14, & nn. 9–11, Penry held that such enactments, “even when added to the 14 States that have
rejected capital punishment completely, do not provide sufficient evidence at present of a national
consensus.” Penry, 492 U.S. at 334.
594
The Court in Atkins emphasized that, since Penry, “state legislatures across the country began to address
the issue.” The Court in Atkins pointed out that in that time fifteen states—Kentucky, Tennessee, New
Mexico, Arkansas, Colorado, Washington, Indiana, Kansas, New York, South Dakota, Arizona,
Connecticut, Florida, Missouri, and North Carolina—had passed laws exempting the mentally retarded
from death sentences. Atkins, 536 U.S. at 313–15.
595
543 U.S. 551 (2005).
596
A divided Supreme Court had previously found no national consensus prohibiting the execution of
juvenile offenders over the age of fifteen. Stanford v. Kentucky, 492 U.S. 361 (1989). The majority
opinion in Roper overruled Stanford. Roper, 543 U.S. at 556, 564. The Supreme Court’s plurality opinion
in Thompson v. Oklahoma had previously determined that the Eighth Amendment barred the execution of
offenders under the age of sixteen. Thompson v. Oklahoma, 487 U.S. 815 (1988). That plurality opinion
emphasized that juries only rarely imposed the death penalty on offenders under age sixteen and that the
last execution of such an offender had been carried out in 1948, forty years earlier. Id. at 832–33.
597
458 U.S. 782 (1986).
598
Kennedy v. Louisiana, 128 S. Ct. 2641, 2650 (2008) (citing Enmund, 458 U.S. at 793); cf. Cabana v.
Bullock, 474 U.S. 376 (1986) (holding that there is no constitutional bar to an appellate court finding that a
defendant killed, attempted to kill, or intended to kill, as Enmund required for the imposition of the death
penalty in felony murder cases). In Tison v. Arizona, 481 U.S. 137 (2008), by contrast, the Supreme Court
“allowed the defendants’ death sentences to stand where they did not themselves kill the victims but their
involvement in the events leading up to the murders was active, recklessly indifferent, and substantial.”
Kennedy, 128 S. Ct. at 2650 (citing Tison, 481 U.S. at 138).
599
Kennedy, 128 S. Ct. at 2650.
600
433 U.S. 584 (1977).
601
Id. at 592. Four justices were part of the plurality opinion in Coker. Id. at 586. Two other justices,
William Brennan and Thurgood Marshall, wrote short concurring opinions expressing their view that the
death penalty was cruel and unusual in all circumstances and therefore violated the Eighth Amendment. Id.
at 600 (Brennan, J., concurring); id. (Marshall, J., concurring). Justice Powell also concurred in the
judgment of the Court and in the plurality’s reasoning that death is a disproportionate punishment for the
crime of raping an adult woman. Id. at 601 (Powell, J., concurring in part and dissenting in part).
602
Id. at 595–96. The rape victim in Coker was actually just sixteen years of age, id. at 605 (Powell, J.,
concurring in part and dissenting in part), but was treated as an adult under Georgia law. The plurality
opinion in Coker also pointed out that “at least 9 out of 10” Georgia juries did not impose death sentences
for rape, id. at 596–97, adding that “in light of the legislative decisions in almost all of the States and in
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276
the Eighth Amendment’s cruel and unusual punishments clause.
603
As the Court ruled:
“The murderer kills; the rapist, if no more than that, does not. Life is over for the victim
of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not
over and normally is not beyond repair.”
604
And in 2008, the Coker ruling was extended
to acts of child rape.
605
The Court held that, at least with respect to cases that involve
individual crimes, the death penalty would not be permitted for a non-homicidal act.
606
¶127 The Supreme Court has also used the Eighth Amendment to “ensure consistency in
determining who receives a death sentence.”
607
To guarantee “restraint and moderation
in use of capital punishment,”
608
the Supreme Court has insisted on judging the
“character and record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of inflicting the penalty of
death.”
609
Thus, a defendant in a capital trial has the right to raise as a mitigating factor
any aspect of his or her character or record and any circumstances of the offense that
might be a basis for a sentence less than death.
610
The inherent conflict between these
constitutional principles—that defendants be treated alike, to avoid racial bias and other
inequities, yet also be treated as individuals, to recognize their humanity and unique
characteristics—led Justice Blackmun to conclude the death penalty itself is
unconstitutional.
611
most of the countries around the world, it would be difficult to support a claim that the death penalty for
rape is an indispensable part of the States’ criminal justice system.” Id. at 592 n.4. As the plurality opinion
emphasized: “It is thus not irrelevant here that out of 60 major nations in the world surveyed in 1965, only
3 retained the death penalty for rape where death did not ensue.” Id. at 595 n.10.
603
Id. at 592. Only three of the thirty-five states that reenacted death penalty statutes in the wake of
Furman permitted death sentences for an adult woman’s rape. Id. at 594. In North Carolina and Louisiana,
the death penalty was mandatory for those found guilty, and prior to Coker both of those mandatory death
penalty statutes were stuck down as unconstitutional. See Woodson v. North Carolina, 428 U.S. 280
(1976); Roberts v. Louisiana, 428 U.S. 325 (1976). That left Georgia’s law as the only one allowing for the
punishment at issue. The Supreme Court, looking back, noted in 2002 in a subsequent case: “In Coker, we
focused on the then-recent legislation that had been enacted in response to our decision 10 years earlier in
Furman . . . to support the conclusion that the ‘current judgment,’ though ‘not wholly unanimous’ weighed
very heavily on the side of rejecting capital punishment as a ‘suitable penalty for raping an adult woman.’”
Atkins, 536 U.S. at 312 (citations omitted).
604
Coker, 433 U.S. at 598. “We have the abiding conviction,” the Court ruled, “that the death penalty,
which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does
not take human life.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)).
605
Kennedy v. Louisiana, 128 S. Ct. 2641, 2646 (2008).
606
Id. at 2646, 2659. After the Kennedy decision, the State of Louisiana filed a petition for rehearing after
learning through a blog posting that the death penalty was a permissible punishment for child rape under
U.S. military law. Petition for Rehearing, 2008 WL 2847069 *1–2 (July 21, 2008). The State of
Louisiana, the petition said, “regrettably did not know of this Federal provision,” acknowledging “a
significant error” and accepting “full responsibility” for the failure to bring the law to the Court’s attention
in its prior briefs. Id. On October 1, 2008, however, the Supreme Court denied the motion for rehearing.
The Court held that although “[t]he military death penalty for rape has been the rule for more than a
century,” the death penalty “has not been carried out against a military offender for almost 50 years.” The
Court also emphasized that it was applying the Eighth Amendment to “civilian law” and not in the context
of a military case. See Kennedy v. Louisiana, 129 S. Ct. 1, 1–2 (2008).
607
Kennedy, 128 S.Ct. at 2658 (citing California v. Brown, 479 U.S. 538, 541 (1987) and Godfrey v.
Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (requiring a State to give narrow and precise
definition to aggravating factors)).
608
Id. at 2659.
609
Woodson, 428 U.S. at 304; Lockett v. Ohio, 438 U.S. 586, 604–05 (1978) (plurality opinion).
610
Lockett, 438 U.S. at 604; Eddings v. Oklahoma, 455 U.S. 104, 110–12 (1982).
611
Callins v. Collins, 510 U.S. 1141, 1144–45 (1994) (Blackmun, J., dissenting from denial of certiorari).
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277
D. The Supreme Court’s Interpretive Approach
¶128 In its rulings, the Supreme Court often starts by looking at how many states either
prohibit or permit a particular punishment.
612
When Atkins was decided in 2002, the
Court noted that thirty states, including twelve abolitionist ones, prohibited the death
penalty for mentally retarded offenders, whereas only twenty states permitted that
punishment.
613
When Roper was handed down in 2005, the Court observed that thirty
states prohibited the death penalty for juveniles, whereas only twenty states authorized
such a sentence.
614
In Enmund, the Court also emphasized that only eight jurisdictions
authorized a death sentence solely for participation in a robbery during which an
accomplice committed a murder.
615
And in Kennedy the Court emphasized that “it is of
significance that, in forty five jurisdictions, petitioner could not be executed for child
rape of any kind”—a number that “surpasses the 30 States in Atkins and Roper and the 42
States in Enmund that prohibited the death penalty under the circumstances those cases
considered.”
616
¶129 The counting of states permitting or prohibiting a death sentence is definitely part
of the Eighth Amendment calculus, but the Supreme Court’s opinions make clear that
such a mechanical count is not the decisive factor. For example, in Atkins, after noting
that fifteen states had recently barred the execution of the mentally retarded,
617
the Court
held that “[i]t is not so much the number of these States that is significant, but the
consistency of the direction of change.”
618
Likewise, in Roper, the Court acknowledged
that “the rate of change in reducing the incidence of the juvenile death penalty, or in
taking specific steps to abolish it,” had been “slower” than in the mental retardation
The desire to achieve uniform outcomes in cases while also mandating that defendants be treated in an
individualized fashion has led to results that the Court admits are “not all together satisfactory.” Kennedy,
128 S. Ct. at 2659 (citing Tuilaepa v. California, 512 U.S. 967, 973 (1994) (“The objectives of these two
inquiries can be in some tension, at least when the inquiries occur at the same time.”) and Walton v.
Arizona, 497 U.S. 639, 664–65 (1990) (Scalia, J., concurring in part) (“The latter requirement quite
obviously destroys whatever rationality and predictability the former requirement was designed to
achieve.”)); see also Walton, 497 U.S. at 664 (Scalia, J., concurring) (“To acknowledge that ‘there perhaps
is an inherent tension’” between Furman and the Woodson-Lockett line of cases “is rather like saying that
there was perhaps an inherent tension between the Allies and the Axis Powers n World War II”) (citing
McCleskey, 481 U.S. at 363 (Blackmun, J., dissenting)). In Kennedy, the Court noted that the Woodson-
Lockett line of cases “is still in search of a unifying principle” but that its response “has been to insist upon
confining the instances in which capital punishment may be imposed.” Kennedy, 128 S. Ct. at 2659.
612
Roper, 543 U.S. at 564.
613
Kennedy, 128 S. Ct. at 2653.
614
Id.
615
Id.
616
Id.
617
Atkins, 536 U.S. at 314–15.
618
Id. at 315. As the Court ruled in Atkins: “Given the well-known fact that anticrime legislation is far
more popular than legislation providing protections for persons guilty of violent crime, the large number of
States prohibiting the execution of mentally retarded persons (and the complete absence of States passing
legislation reinstating the power to conduct such executions) provides powerful evidence that today our
society views mentally retarded offenders as categorically less culpable than the average criminal. The
evidence carries even greater force when it is noted that the legislatures that have addressed the issue have
voted overwhelmingly in favor of the prohibition. Moreover, even in those states that allow the execution
of mentally retarded offenders, the practice is uncommon. . . . The practice, therefore, has become truly
unusual, and it is fair to say that a national consensus has developed against it.” Id. at 315–16 (footnotes
omitted).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
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context,
619
but noted the “less dramatic” change was still “significant” and that “the same
consistency of direction of change has been demonstrated.”
620
In Kennedy, after
acknowledging that a handful of states had passed new laws making child rape a capital
crime,
621
the Court put it this way: “The evidence of a national consensus with respect to
the death penalty for child rapists, as with respect to juveniles, mentally retarded
offenders, and vicarious felony murderers, shows divided opinion but, on balance, an
opinion against it.”
622
Thus, the fact that one or more states permit a particular
punishment is not dispositive.
623
¶130 The Court also looks carefully at how often a particular punishment is actually
meted out. In Enmund, only six defendants could be identified who had been sentenced
to death between 1954 and 1982 for felony murder where the defendant did not
personally commit the homicidal act.
624
In Roper, though just five additional states had
outlawed juvenile executions in the preceding fifteen years,
625
the evidence showed the
execution of juvenile offenders was extremely rare.
626
In the prior ten years, only three
states, Oklahoma, Texas and Virginia, had executed juvenile offenders.
627
In Atkins, only
five states had executed offenders known to have an IQ below seventy
628
between 1989
and 2002.
629
And in Kennedy, the Court emphasized that “[s]tatistics about the number
of executions may inform the consideration whether capital punishment for the crime of
child rape is regarded as unacceptable in our society.”
630
The Court noted that “no
619
Roper, 543 U.S. at 565.
620
Id. at 565–66. The Court emphasized that “[s]ince Stanford, no State that previously prohibited capital
punishment for juveniles had reinstated it.” Id. at 566. “This fact, coupled with the trend toward abolition
of the juvenile death penalty,” the Court ruled, “carries special force in light of the general popularity of
anticrime legislation, and in light of the particular trend in recent years toward cracking down on juvenile
crime in other respects.” Id. (citations omitted). “Any difference between this case and Atkins with respect
to the pace of abolition,” the Court ruled, “is thus counterbalanced by the consistent direction of the
change.” Id. The Court also noted that when Congress enacted the Federal Death Penalty Act in 1994, it
determined that the death penalty should not apply to juveniles. Id. at 567.
621
Kennedy, 128 S. Ct. at 2656.
622
Id. at 2653. The Court in Kennedy pointed out that “[t]he total number of States to have made child rape
a capital offense after Furman is six.” Id. at 2657. “This is not an indication of a trend or change in
direction comparable to the one supported by data in Roper,” the Court concluded. Id.
623
Id. at 2656 (“The small number of States that have enacted this penalty, then, is relevant to determining
whether there is a consensus against capital punishment for this crime.”).
624
Enmund, 458 U.S. at 794.
625
Roper, 543 U.S. at 565. The lack of more states outlawing the execution of juvenile offenders did not
stop the Court from finding the practice unconstitutional. As the Court concluded: “A majority of States
have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is
required by the Eighth Amendment.” Id. at 568.
626
Id. at 565.
627
Id. at 564–65.
628
The mean score for intelligence is an IQ of 100. The Diagnostic and Statistical Manual of Mental
Disorders—commonly known as the DSM-VI—defines a mentally retarded individual as someone who has
“significantly subaverage intellectual functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of community resources, self-
direction, functional academic skills, work, leisure, health and safety.” Scores below 70 are indicative of
mental retardation, the categories of which are “mild,” “moderate,” “severe” and “profound.” C
OYNE &
ENTZEROTH, supra note 269, at 319.
629
Atkins, 536 U.S. at 316.
630
Kennedy, 128 S. Ct. at 2657.
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279
individual has been executed for the rape of an adult or child since 1964” and that “no
execution for any other non-homicide offense has been conducted since 1963.”
631
¶131 Although it has found capital punishment in these situations to violate the Eighth
Amendment, the Supreme Court has indicated that the death penalty is not per se
unconstitutional.
632
For example, in Trop, the Court stated in dicta:
Whatever the arguments may be against capital punishment, both on moral
grounds and in terms of accomplishing the purposes of punishment—and
they are forceful—the death penalty has been employed throughout our
history, and, in a day when it is still widely accepted, it cannot be said to
violate the constitutional concept of cruelty.
633
In Gregg, the Supreme Court also stated that “[t]he Court on a number of occasions has
both assumed and asserted the constitutionality of capital punishment”—though the
Court, in upholding Georgia’s death penalty law, acknowledged that until Furman it had
not “confronted squarely” the claim that the death penalty was per se unconstitutional.
634
The Baze decision, which set off a new round of American executions,
635
also reaffirmed
that the Supreme Court now does not view the death penalty itself as unconstitutional.
636
¶132 The Supreme Court, in fact, has upheld the constitutionality of more than one
method of execution. In Wilkerson v. Utah,
637
the Court approved the use of a public
firing squad, finding that execution by shooting or hanging was a customary military
practice.
638
In In re Kemmler,
639
the Court rejected an Eighth Amendment challenge to
631
Id. The majority opinion in Kennedy also pointed out that “Louisiana is the only State since 1964 that
has sentenced an individual to death for the crime of child rape; and petitioner and Richard Davis, who was
convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in
December 2007 are the only two individuals now on death row in the United States for a nonhomicide
offense.” Id.
632
Coker, 433 U.S. at 591.
633
Trop, 356 U.S. at 99. “But it is equally plain,” the Court clarified, “that the existence of the death
penalty is not a license to the Government to devise any punishment short of death within the limit of its
imagination.” Id.
634
Gregg, 428 U.S. at 168–69.
635
Since Baze was decided on April 16, 2008, fifty-nine executions have taken place in the United States.
See Death Penalty Information Center, Searchable Execution Database,
http://deathpenaltyinfo.org/executions (last visited Aug. 31, 2009). The last execution that took place
before Baze was of Michael Richard in Texas. He was executed on September 25, 2007, after his lawyers
missed a 5:00 p.m. filing deadline by less than a half hour due to a computer crash. The Texas Court of
Criminal Appeals in Austin refused to stay open for a few extra minutes to accept the filing. Mello, supra
note 422, at 766 n.9. That case illustrates, perhaps as well as any other, the sheer arbitrariness of America’s
death penalty system.
636
Baze, 128 S. Ct. at 1529, 1537 (plurality opinion).
637
99 U.S. 130 (1878).
638
Id. at 134. Although the Court approved that particular method of execution, the Court went on to say
that “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision
which provides that cruel and unusual punishments shall not be inflicted.” Id. at 135–36. After citing a
legal commentator who mentioned cases where prisoners were “drawn” and “quartered,” “dragged to the
place of execution,” “emboweled alive,” “beheaded,” or publicly dissected or burned alive, the Court in
Wilkerson stated in dicta that “it is safe to affirm that punishments of torture, such as those mentioned by
the commentator referred to, and all others in the same line of unnecessary cruelty,” are “forbidden” by the
Eighth Amendment. Id. at 135–36.
639
136 U.S. 436 (1890).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
280
the use of the electric chair.
640
Holden v. Minnesota
641
approved laws requiring private,
nighttime executions,
642
thus accelerating the passage of such laws.
643
Another Eighth
Amendment challenge, to a New York law requiring solitary confinement of convicted
murderers prior to their execution, was rejected in McElvaine v. Brush.
644
In Louisiana
ex rel. Francis v. Resweber,
645
the Court held that it was not “cruel and unusual
punishment” to carry out an inmate’s execution after the first attempt to electrocute him
failed to cause the inmate’s death.
646
And in Baze, the Supreme Court upheld Kentucky’s
lethal injection protocol.
647
What remains to be seen, of course, is how the Supreme
Court will deal with future challenges, whether to other lethal injection protocols,
648
to
the execution of mentally ill inmates,
649
or to the death penalty itself.
640
Id. at 447–49. The Court in In re Kemmler emphasized that the legislative act in question “was passed
in the effort to devise a more humane method” of execution, pointing out that New York’s governor, in
commending the legislation, had stated that “[t]he present mode of executing criminals by hanging has
come down to us from the dark ages.” Id. at 444, 447. The Court did note, however, that “burning at the
stake, crucifixion, breaking on the wheel, or the like” would fall within the meaning of “cruel and unusual”
punishments. Id. at 446–47. In its opinion, the Court emphasized: “Punishments are cruel when they
involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous, something more than
the mere extinguishment of life.” Id. at 447.
641
137 U.S. 483 (1890).
642
The Court in Holden ruled: “Whether a convict, sentenced to death, shall be executed before or after
sunrise, or within or without the walls of the jail, or within or outside of some other inclosure, and whether
the inclosure within which he is executed shall be higher than the gallows, thus excluding the view of
persons outside, are regulations that do not affect his substantial rights. The same observation may be
made touching the restriction . . . as to the number and character of those who may witness the execution,
and the exclusion altogether of reporters or representatives of newspapers. These are regulations which the
Legislature, in its wisdom, and for the public good, could legally prescribe in respect to executions.” Id. at
491.
643
BESSLER, DEATH IN THE DARK, supra note 31, at 88–89.
644
142 U.S. 155, 158–60 (1891).
645
329 U.S. 459 (1947).
646
Id. at 463. In that case, Willie Francis—described as “a colored citizen of Louisiana”—was convicted
of murder and sentenced to die by electrocution. Id. at 460. On May 3, 1946, he was put in the electric
chair, but because of some mechanical difficulty, his death did not result once the switch was thrown.
Consequently, he was removed from the chair and returned to his cell. Id. at 460–61. Louisiana’s governor
subsequently issued a new death warrant, but Francis claimed that, were he executed, the Eighth
Amendment would be violated “because he had once gone through the difficult preparation for execution
and had once received through his body a current of electricity intended to cause death.” Id. at 461.
Rejecting that argument, the Supreme Court held: “We find nothing in what took place here which
amounts to cruel and unusual punishment in the constitutional sense.” Id. at 463. In so ruling, the Court
stated: “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain
in the execution of the death sentence. . . . Even the fact that petitioner has already been subjected to a
current of electricity does not make his subsequent execution any more cruel in the constitutional sense
than any other execution. The cruelty against which the Constitution protects a convicted man is cruelty
inherent in the method of punishment, not the necessary suffering involved in any method employed to
extinguish life humanely. The fact that an unforeseen accident prevented the prompt consummation of the
sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to
inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the
unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish
and physical pain in any other occurrence, such as, for example, a fire in the cell block.” Id. at 463–64.
647
Baze, 128 S. Ct. at 1531 (plurality opinion).
648
See Deborah W. Denno, Symposium: The Lethal Injection Debate, 35 FORDHAM URB. L.J. 701, 702
(2008) (“The road leading to Baze is well traveled with lethal injection litigation; yet, post-Baze, there
appear to be many more litigation miles still to go.”).
649
The exact number of death row inmates with severe mental illnesses is unknown. See Eileen P. Ryan &
Sarah B. Berson, Mental Illness and the Death Penalty, 25 S
T. LOUIS U. PUB. L. REV. 351, 365 (2006)
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281
VIII. FROM BECCARIA TO BAZE
A. The Influence of Cesare Beccaria
¶133 The young Italian philosopher, Cesare Beccaria, identified or anticipated nearly all
of the problems that have plagued—and continue to plague—capital punishment. He
identified the barbaric example that the death penalty sets, arguing that executions do not
deter crime any better than life imprisonment.
650
“[T]he strongest impediment to crimes
is not the terrible and fleeting spectacle of death of a wretch,” Beccaria believed, “but the
long and repeated example of a man deprived of his liberty. . . .”
651
He condemned the
arbitrariness and unfettered discretion that is so often present in the law—and that has
particularly deadly consequences when a person’s life is at stake.
652
He railed against the
inequalities he saw in the legal system
653
—prejudices that have been associated with
capital punishment for centuries.
654
And he recognized the death penalty’s
(“There is very little research on the incidence of severe mental illness in death row inmates. The
American Civil Liberties Union estimates that five to ten percent of prisoners on death row have a serious
mental illness. . . .”). What is clear is that the American Bar Association, the American Psychological
Association, the American Psychiatric Association, and the National Alliance for the Mentally Ill have all
called for a stop to the execution of those inmates who are seriously mentally ill. In 2007, North Carolina’s
legislature considered a bill seeking to prohibit the execution of those who had a “severe mental disability”
at the time of the commission of the crime. See S.1075, 2007 Gen. Assem., Reg. Sess. (N.C. 2007) . And
in 2008, two other organizations—Murder Victims’ Families for Human Rights and the National Alliance
on Mental Illness—also launched a national project concerned with the death penalty’s intersection with
the mentally ill. See Death Penalty Information Center, Murder Victim’s Families for Human Rights and
the National Alliance on Mental Illness to Launch National Project,
http://www.deathpenaltyinfo.org/murder-victims’-families-human-rights-and-national-alliance-mental-
illness-launch-national-project (last visited Aug. 31, 2009).
650
BECCARIA (Thomas ed.), supra note 1, at 50 (“As punishments become more cruel, the minds of men,
which like fluids always adjust to the level of the objects that surround them, become hardened, and the
ever lively force of passions is such that after a hundred years of cruel punishments, breaking on the wheel
causes no more fear than imprisonment previously did. For a punishment to achieve its objective, it is only
necessary that the harm that it inflicts outweighs the benefit that derives from the crime, and into this
calculation ought to be factored the certainty of punishment and the loss of the good that the commission of
the crime would produce. Everything beyond this is superfluous and, therefore, tyrannical.”). Id.
651
Id. at 156.
652
Id. at 14. As Beccaria wrote: “Everyone has his own point of view, and everyone has a different one at
different times. . . . Hence, we see how the fate of a citizen changes several times as he moves through the
courts, and how the lives of poor wretches fall victim to false reasoning or to the momentary bad mood of a
judge, who mistakes for a legitimate interpretation of the law the hazy product of that confused series of
notions that influence his mind. Thus, we see the same crimes punished differently at different times by the
same court. . . .” Id. at 14–15.
653
Id. at 41 (“[T]he rich and the powerful should not be able to make amends for assaults against the weak
and the poor by naming a price.”); id. at 42 (“[P]unishments should be the same for the highest as they are
for the lowest of citizens.”).
654
During the reign of Henry VIII, an estimated 72,000 English subjects were put to death for a whole
array of offenses, many of which we would today consider lower-level crimes. C
OYNE & ENTZEROTH,
supra note 269, at 4. It is still the case that the most heinous crimes are not always punished with death—a
fact that will remain so, especially since international law no longer permits the death penalty’s use for the
most serious crimes: genocide, crimes against humanity, and war crimes. See Matthew R. Wilmot, Sparing
Gary Ridgway: The Demise of the Death Penalty in Washington State?, 45 W
ILLAMETTE L. REV. 435, 435–
36 (2005) (noting that Gary Ridgway, the “Green River Killer,” killed at least forty-nine women but was
spared the death penalty through a plea agreement with prosecutors resulting in a life sentence).
Even co-defendants may receive different punishments, one death and one life, for the very same
actions. See 11 G
A. PROC. CRIM. PROC. § 28:60 (2008); Thomas Aumann, Death by Peers: The Extension
of the Sixth Amendment to Capital Sentencing in Ring v. Arizona, 34 L
OY. U. CHI. L.J. 845, 856 n.73
(2003) (noting that sentencing disparities among co-defendants often correlates with their race).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
282
“irreparability,” the ever-present possibility of human error, and thus the continual risk of
condemning or executing the innocent.
655
¶134 Beccaria’s part utilitarian/part retributivist philosophy
656
was focused not only on
enforcing the rule of law and punishing crime, but also on preventing crime. Swift,
proportionate punishments, not barbaric ones, Beccaria believed, were “more just and
useful.”
657
Today, of course, the handful of inmates who are executed in America—and
often in the most arbitrary and capricious manner imaginable
658
—spend years on death
row before being executed.
659
“Do you want to prevent crimes?” Beccaria wrote. “Then
see to it that enlightenment accompanies liberty.”
660
Beccaria saw education as a key to
655
BECCARIA (Thomas ed.), supra note 1, at 156. As Beccaria and his colleagues wrote in their report on
the reform of the criminal justice system in Austrian Lombardy: “In almost all nations, it is not unheard of
to find examples in which the apparently guilty were sentenced to death because they were shown to be so
according to these supposedly incontrovertible proofs. Nor do we intend to attribute this to the
incompetence, negligence, or bad will of the judges, but to the necessary imperfection of the law.” Id. at
157.
656
Cesare Beccaria and Jeremy Bentham are frequently described as “utilitarian” in their approach to
criminal justice issues. See Guyora Binder & Nicholas J. Smith, Framed: Utilitarianism and Punishment
of the Innocent, 32 R
UTGERS L.J. 115, 116–17 (2000); Hirsch, supra note 103, at 1195. This is an
oversimplification, however. See Russell L. Christopher, Deterring Retributivism: The Injustice of “Just”
Punishment, 96 Nw. U. L. Rev. 843, 867–68 n.128 (2002) (“As distinct from a thoroughgoing utilitarian,
Beccaria prohibits punishment even where its consequences are good or useful if the punishment is
unjust.”); compare David Young, Cesare Beccaria: Utilitarian or Retributivist?, 11 J.
CRIM. JUST. 317
(1983).
The utilitarian approach holds that “[i]f punishment can be shown to promote effectively the interests of
society it is justifiable, otherwise it is not.” John Rawls, Two Concepts of Rules, 64 P
HIL. REV. 3, 5 (1955).
As one scholar has noted: “For the utilitarian, punishment is forward-looking. Its basic purpose is the
reduction of crimes, and hence pain, in the future. From this perspective, past wrongs cannot be undone,
merely prevented from reoccurring by making illegal actions less attractive than legal ones.” B
ECCARIA
(Bellamy ed.), supra note 1, at xxi. Bentham drew heavily on Beccaria in his formulation of the utility
principle, and Beccaria, in his writing, drew upon the Frenchman Claude Adrien Helvétius, who, in turn,
was influenced by the Scottish philosopher David Hume. B
ECCARIA (Bellamy ed.), supra note 1, at xxxvi,
122; Binder & Smith, supra, at 156; see also id. at 156–66.
“Retributivism” holds that “the reason to punish is desert—wrongdoing merits punishment, and
punishing a wrongdoer is good, irrespective of any consequences of punishing that wrongdoer.” William
L. Barnes, Jr., Revenge on Utilitarianism: Renouncing a Comprehensive Economic Theory of Crime and
Punishment, 74 I
ND. L.J. 627, 635 (1999); see also BECCARIA (Bellamy ed.), supra note 1, at xxi (“For the
retributivist, in contrast, punishment is backward-looking. It follows from guilt and aims to ensure that
wrongdoers suffer in proportion to their wrongdoing.”). “The law is replete with retributivist influences,
including the lex talionis of Early Roman law, the ‘eye for an eye, tooth for a tooth’ concept found in the
Old Testament, and the influential writings of the philosopher Immanuel Kant.” Barnes, supra, at 635.
Beccaria’s philosophy certainly contains retributivist strains in that Beccaria thought punishments should
be proportionate to crimes and that there should be a clear “connection between a misdeed and its
punishment, namely, that punishment should conform as far as is possible to the nature of the crime.”
B
ECCARIA (Thomas ed.), supra note 1, at 41.
657
BECCARIA (Thomas ed.), supra note 1, at 39–41.
658
As just one example, a husband and wife, Tony and Rebecca Machetti, both received death sentences
after plotting to kill—and then murdering—Rebecca Machetti’s former husband to collect life insurance
proceeds. However, it was attorney error, not the nature of the crime itself, that led to different results on
appeal after the cases were tried separately. It was clear that unconstitutionally composed juries had
sentenced each of them to death. But only one set of lawyers challenged the jury composition at trial.
Rebecca Machetti’s lawyers objected, leading to a retrial and a life sentence, whereas Tony Machetti’s
lawyers failed to do so, unaware of a new Supreme Court case issued just five days before trial. Because
the error was not preserved, Tony Machetti’s death sentence was affirmed on appeal and he was executed
in 1983. C
OYNE & ENTZEROTH, supra note 269, at 709–12.
659
See supra text accompanying notes 417–18 (citing statistics).
660
BECCARIA (Thomas ed.), supra note 1, at 80.
Vol. 4:2] John D. Bessler
283
preventing crime,
661
and viewed executions as unnecessary and ineffective deterrents.
662
He went on to say: “[W]hile the death penalty may be the most rapid way of getting rid
of guilty people, it is not the most useful to deter crimes.”
663
¶135 Beccaria detailed his ideas in On Crimes and Punishments. “For the death penalty
to be deemed necessary to serve as an example capable of discouraging the most serious
crimes,” Beccaria wrote, “it would be necessary to prove with facts, showing that where
the death penalty has been most frequently employed, such crimes were far fewer in
number than in places where the same death penalty was used less or not at all.”
664
Just
as Beccaria found the opposite to be true,
665
modern-day statistics consistently show that,
in America, death penalty states have far worse homicide rates than abolitionist states.
666
Some studies even conclude that executions, far from deterring crime, actually have a
brutalizing effect, causing more homicides.
667
The long-standing and persistent focus on
661
Id. at 84. The lack of education among those who land on death row is striking. See, e.g., Ray
Sebastian Pantle, Blacker Than Death Row: How Current Equal Protection Analysis Fails Minorities
Facing Capital Punishment, 35 C
AP. U. L. REV. 811, 825 (2007) (“[M]ost individuals on death row fall
below the poverty line, and many can neither read nor write”); Laura M. Argys & H. Naci Mocan, Who
Shall Live and Who Shall Die? An Analysis of Prisoners on Death Row in the United States, 33 J.
LEGAL
STUD. 255, 267 (2004) (“[J]ust under half of the prisoners on death row have less than a high school
education, and only 8 percent have attended college.”); John M. Fabian, Death Penalty Mitigation and the
Role of the Forensic Psychologist, 27 L
AW & PSYCHOL. REV. 73, 109 n.258 (2003) (“Nearly twenty-seven
percent of death row inmates in Mississippi have verbal IQ scores of seventy-four or below, which is in the
mild mental retardation-borderline intelligent ranges. In addition, most death row inmates have lower
levels of formal education, having reached only the ninth grade.”).
662
The deterrence debate still rages on today. See Charles Fried, Reflections on Crime and Punishment, 30
S
UFFOLK U. L. REV. 681, 694 n.36 (1997) (citations omitted). The Supreme Court itself has stated that
“[t]he theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of
the punishment will inhibit criminal actors from carrying out murderous conduct.” Atkins v. Virginia, 536
U.S. 304, 320 (2001). Despite recent data showing the death penalty does not deter homicides any better
than life-without-parole sentences, a recent series of articles in the Stanford Law Review illustrates the
ongoing and contentious debate over the morality of capital punishment and whether executions deter or
actually cause more murders. See Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally
Required? Acts, Omissions, and Life-Life Tradeoffs, 58 S
TAN. L. REV. 703 (2005) (arguing death sentences
are obligatory if they save lives); Carol S. Steiker, No, Capital Punishment Is Not Morally Required:
Deterrence, Deontology, and the Death Penalty, 58 S
TAN. L. REV. 751 (2005) (arguing executions are
morally wrong irrespective of any supposed deterrent effect); John J. Donohue & Justin Wolfers, Uses and
Abuses of Empirical Evidence in the Death Penalty Debate, 58 S
TAN. L. REV. 791, 841 (2005) (reviewing
studies and finding that data on the death penalty’s deterrent effect is profoundly uncertain); Cass R.
Sunstein & Adrian Vermeule, Deterring Murder: A Reply, 58 S
TAN. L. REV. 847, 848 (2005) (stating “[w]e
do not know whether deterrence has been shown” and adding that “[o]ur minimal claim is that, in
evaluating criminal penalties, deterrence should play a significant role in moral judgments”).
663
BECCARIA (Thomas ed.), supra note 1, at 159.
664
Id. at 155.
665
As Beccaria wrote: “Now, if we look with the impartial and peaceful eye of the legislator and at bygone
times, as well as to those countries both near and far where the death penalty has been restricted to serious
crimes, we will find exactly the contrary: where punishments have been more moderate, and for that very
reason more strictly applied against delinquents (there being fewer reasons to let them go unpunished),
crimes have become less frequent because the nature of man has slowly and surely been shaped by the
moderation of the law.” Id.
666
See John D. Bessler, America’s Death Penalty: Just Another Form of Violence, 82 PHI KAPPA PHI
FORUM 13, 14 (2002) (FBI data show that over the last twenty years, death penalty states’ average murder
rates have been, on a per capita basis, 48% to 101% higher than in non-death penalty states).
667
See BESSLER, DEATH IN THE DARK, supra note 31, at 184–86. Not surprisingly, the turbulence of the
deterrence debate—rife with competing statistical analyses by economists—has spilled into the nation’s
highest court. In a 2008 case, Justice Stevens, citing research by Justin Wolfers, found “no reliable
statistical evidence that capital punishment in fact deters potential offenders.” Baze, 128 S. Ct. at 1547–48
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
284
statistical data, of course, glosses over the real moral and human rights issues raised by
the death penalty.
¶136 Beccaria’s far-reaching influence on Anglo-American law—and on the death
penalty debate—is demonstrated by the sheer number of references to him. Many
American judges have cited Beccaria,
668
and his name appears in multiple Supreme Court
cases.
669
In Ullmann v. United States,
670
for example, the petitioner claimed that the
Immunity Act of 1954, making it a crime to refuse to testify about matters of national
security, violated the Fifth Amendment privilege against self-incrimination.
671
The
Supreme Court upheld the Act,
672
but Justices William O. Douglas and Hugo Black
dissented, invoking Beccaria, calling for the reversal of the petitioner’s conviction, and
arguing that “[t]he Fifth Amendment was designed to protect against infamy
673
as well as
prosecution.”
674
Beccaria was “well known” in America, particularly to Jefferson, the
n.13 (Stevens, J., concurring). In that same case, Justice Scalia, referring to studies cited in Cass Sunstein’s
writings, invoked what he called “a significant body of recent research” purporting to show “that capital
punishment may well have a deterrent effect, possibly a quite powerful one.” Id. at 1553 (Scalia, J.,
dissenting). It took an op-ed piece authored by both Wolfers and Sunstein to set the record straight, with
the two academics concluding that, at this time, “the best reading of the accumulated data is that they do
not establish a deterrent effect of the death penalty.” Cass R. Sunstein & Justin Wolfers, A Death Penalty
Puzzle: The Murky Evidence for and Against Deterrence, W
ASH. POST, June 30, 2008, at A11.
668
E.g., Khouzam v. Ashcroft, 361 F.3d 161, 163 (2d Cir. 2004); United States v. McCusker, Nos. Crim. A
92-33-04 & Civ. A. 95-3494, 1995 WL 613103 (E.D. Pa. Oct. 19, 1995); see also Holt v. Sarver, 442 F.2d
304, 310 n.1 (8th Cir. 1971); Sands v. Wainwright, 357 F. Supp. 1062, 1095 (D.C. Fla. 1973); People v.
Graves, 29 P.2d 807, 813 (Cal. App. 1934); State v. Gaylord, 890 P.2d 1167, 1185 (Hawaii 1995); Emerson
v. State, 348 N.E.2d 48, 54 (Ind. App. 1976); Smith v. State, 398 A.2d 426, 434 (Md. App. 1979);
Commonwealth v. O’Neal, 339 N.E.2d 676, 678 (Mass. 1975) (Tauro, C.J., concurring); People v.
Babcock, 666 N.W.2d 231, 263 (Mich. 2003); State v. Delk, 194 S.E. 94, 96 (N.C. 1937); McCoy v. Harris,
160 P.2d 721, 724 (Utah 1945); Dreiling v. Jain, 93 P.3d 861, 866 (Wash. 2004)..
669
Beccaria’s “decisive” and “classic work,” Dei delitti e delle pene, has also been cited—and referred to in
those words—in the European Court of Human Rights. See Streletz, Kessler and Krenz v. Germany,
Application Nos. 34044/96, 35532/97 & 44801/98, European Court of Human Rights, Judgment dated 22
March 2001 (Zupancic, J., concurring); Zdanoka v. Latvia, Application No. 58278/00, European Court of
Human Rights, Judgment dated 16 March 2006 (Zupancic, J., dissenting).
670
350 U.S. 422 (1956).
671
The petitioner in Ullmann was convicted of contempt after refusing to answer questions by a grand jury
relating to his knowledge of subversive activities and pertaining to membership in the Communist Party.
Id. at 424. The Petitioner had invoked the privilege against self-incrimination in refusing to answer the
questions, but was then ordered to answer the questions by the district court. Id. at 424–25.
672
Id. at 423–39.
673
In On Crimes and Punishments, Beccaria wrote about “infamy,” calling it a “civil stain.” BECCARIA
(Thomas ed.), supra note 1, at 33. Infamy is “[a] qualification” of a person’s status produced by a
conviction of “an infamous crime and the consequent loss of honor and credit,” which at common law
rendered the person incompetent as a witness. See Cottrell v. National Collegiate Athletic Ass’n, 975
So.2d 306, 345–46 (Ala. 2007) (citing B
LACK’S LAW DICTIONARY (4th ed. 1968)); see also BLACK’S LAW
DICTIONARY 335 (5th ed. 1979) (“[a] crime punishable by imprisonment in the state prison or penitentiary,
with or without hard labor, is an infamous crime”) (cited in Kirby v. State, 426 A.2d 423, 426 (Md. App.
1981)). “The history of infamy as a punishment was notorious,” Douglas wrote in dissent in Ullmann.
Ullmann, 350 U.S. at 450 (Douglas, J., dissenting).
674
Ullmann, 350 U.S. at 450 (Douglas, J., dissenting). In particular, they cited a piece of scholarship by
Professor Mitchell Franklin of Tulane. Id. (citing The Encyclopediste Origin and Meaning of the Fifth
Amendment, 15 L
AWYERS GUILD REV. 41 (1955)). The dissent argued: “The Beccarian attitude toward
infamy was a part of the background of the Fifth Amendment. The concept of infamy was explicitly
written into it. We need not guess as to that. For the first Clause of the Fifth Amendment contains the
concept in haec verba: ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury * * *.’ (emphasis added) (alterations in original). And the
third Clause, the one we are concerned with here—‘No person * * * shall be compelled in any criminal
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285
dissenters argued, noting that the Italian thinker “was the main voice against the use of
infamy as punishment.”
675
¶137 The other Beccaria mentions are brief, but still show the man’s considerable
influence among liberals and conservatives alike. In Furman v. Georgia,
676
Beccaria was
relegated to a footnote, cited by Justice Thurgood Marshall for the proposition that
“[p]unishment as retribution has been condemned by scholars for centuries.”
677
And in
Payne v. Tennessee,
678
Chief Justice William Rehnquist invoked Beccaria in finding that
the Eighth Amendment did not prohibit sentencing juries from considering victim impact
evidence.
679
As Chief Justice Rehnquist wrote: “Writing in the 18th century, the Italian
criminologist Cesare Beccaria advocated the idea that ‘the punishment should fit the
crime.’ He said that ‘[w]e have seen that the true measure of crimes is the injury done to
society.’”
680
B. The Legal Challenge to Lethal Injection
¶138 Since Beccaria’s time, American judges have become key participants in the death
penalty debate. In Baze v. Rees,
681
death row inmates claimed that Kentucky’s three-
drug, lethal injection protocol violated the Eighth Amendment’s cruel and unusual
punishments clause.
682
The prisoners claimed that Kentucky’s protocol posed an
unacceptable risk of significant pain.
683
Although Kentucky’s law did not specify a
particular protocol that had to be followed,
684
state officials developed a protocol that
case to be a witness against himself * * *’ also reflects the revulsion of society at infamy imposed by the
State.” Ullmann, 350 U.S. at 451–52 (Douglas, J., dissenting) (alterations in original).
675
Id. at 452 (citing GILBERT CHINARD, THE COMMONPLACE BOOK OF THOMAS JEFFERSON (1926), at 298
et seq.). The dissent noted that “Beccaria seems to have been principally introduced to America by
Voltaire.” Id. at 452 n.6 (citing M
ARY-MARGARET H. BARR, VOLTAIRE IN AMERICA 23–24 (1941)).
According to Barr: “Beccaria’s Essay on Crimes and Punishment with its famous commentary by Voltaire
was known in America immediately after its first appearance in France and was the first of Voltaire’s
works to be published in America. It was popular in lending libraries and as a quickly sold item in
bookstores, because of general interest in the formation of a new social order. A separate monograph
would be necessary to trace the influence of this epoch-making tract.” Id. The dissenters in Ullmann
pointed out that “great infamy” was involved in Ullmann as “[t]he disclosure that a person is a Communist
practically excommunicates him from society” and meant he would not be able to get a job, could have lost
a professional license or have been put on a black list. Ullmann, 350 U.S. at 453 (Douglas, J., dissenting).
676
408 U.S. 238 (1972).
677
Id. at 343 & n.85 (Marshall, J., concurring) (citing BECCARIA (Paolucci, trans.), supra note 42).
678
501 U.S. 808 (1991).
679
See Payne v. Tennessee, 501 U.S. 808 (1991). The Payne decision overruled two earlier cases that—
utilizing the Eighth Amendment—had barred the admission of victim impact evidence in capital cases. See
South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496 (1987).
680
Payne, 501 U.S. at 820 (citing JAMES ANSON FARRER, CRIMES AND PUNISHMENTS 199 (1880)). In a
fourth case that mentions Beccaria, Solem v. Helm, 463 U.S. 277 (1983), Chief Justice Warren Burger’s
dissent footnoted a 1975 law review article that contained Beccaria’s name in the title. Id. at 312 n.5
(Burger, C.J., dissenting) (citing Schwartz & Wishingrad, supra note 75).
681
128 S. Ct. 1520 (2008).
682
Id. at 1526. Lethal injection as a method of execution originated in Oklahoma, where state legislators
first proposed it after they consulted with the anesthesiology department at the University of Oklahoma
College of Medicine. Id. Kentucky’s lethal injection protocol—as well as the protocols of other states—
adopted variations on Oklahoma’s protocol without independent review of the procedure and without
considering alternatives to it. Id. at 1527 n.1; id. at 1545 (Stevens, J., concurring).
683
Id. at 1526.
684
The state law provided only that “every death sentence shall be executed by continuous intravenous
injection of a substance or combination of substances sufficient to cause death.” K
Y. REV. STAT. ANN. §
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
286
called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium
bromide, and 240 milliequivalents of potassium chloride.
685
Sodium thiopental is a fast-
acting sedative that, if properly administered, induces a deep, coma-like
unconsciousness;
686
pancuronium bromide is a paralytic agent that suppresses muscle
movements and stops respiration; and potassium chloride induces cardiac arrest.
687
The
death-row inmates in Baze contended that improper administration of sodium thiopental
would cause them to suffer severe pain and that the State of Kentucky had failed to take
adequate precautions to protect inmates from excruciatingly painful executions.
688
¶139 Part of the inmates’ challenge targeted the poor training of execution
participants.
689
In Kentucky, doctors play no role in executions because a state statute
bars physicians from participating in the “conduct of an execution,” except to certify the
cause of death.
690
A certified phlebotomist and an emergency medical technician were
instead tasked with performing the venipunctures necessary for the catheters, with other
personnel loading the chemicals into the syringes.
691
In order to reduce the risk of
maladministration of the protocol, Kentucky required IV team members to have at least
one year of professional experience and to participate, along with other team members, in
at least ten practice sessions per year.
692
The protocol also called for the IV team to
establish both primary and back-up lines and prepare two sets of the lethal injection
drugs. These measures were intended to ensure that if an insufficient dose of sodium
thiopental was initially administered an additional dose could be given through the back-
up line.
693
¶140 The Baze case generated multiple opinions. In a plurality opinion authored by
Chief Justice John Roberts, the Supreme Court held that Kentucky’s protocol was
acceptable and that the state’s failure to adopt an alternative, assertedly more humane
protocol did not render Kentucky’s scheme unconstitutional.
694
“[A]n inmate cannot
succeed on an Eighth Amendment claim,” Chief Justice Roberts wrote, “simply by
showing one more step the State could take as a failsafe for other, independently
431.220(1)(a) (West 2006).
685
Baze, 128 S. Ct. at 1528. As a result of the lawsuit, state officials later chose to increase the amount of
sodium thiopental to 3 grams. Id.
686
Id. at 1527. The proper administration of the first drug is intended to ensure that condemned prisoners
do not experience any pain associated with the paralysis and cardiac arrest caused by the second and third
drugs. Id.
687
Id. Between injections, members of the execution team would flush the IV, or intravenous, lines with 25
milligrams of saline to prevent clogging of the lines by precipitates that might be formed if residual sodium
thiopental mixed with pancuronium bromide. Id. at 1528.
688
Id. at 1533.
689
Id.
690
KY. REV. STAT. ANN. § 431.220(3) (West 2009).
691
Baze v. Rees, 128 S. Ct 1520, 1528 (2008). These personnel were said by the Court in Baze to have
“daily experience establishing IV catheters for inmates in Kentucky’s prison population.” Id. at 1533. A
“phlebotomist” has been defined as “an individual performing an invasive procedure to withdraw blood
from the human body to collect samples for the practice of clinical laboratory science, including but not
limited to, clinical laboratory testing for analysis, typing and cross-matching of blood for medical
examination and human transfusion.” L
A. REV. STAT. ANN. § 37:1313(13) (2008).
692
Baze, 128 S. Ct. at 1533–34.
693
Id. at 1534.
694
Id. at 1531–38. The judgment and opinion written by Chief Justice Roberts was joined by Justice Alito
and Justice Kennedy. Id. at 1525.
Vol. 4:2] John D. Bessler
287
adequate measures.”
695
“It is clear,” Roberts wrote, “that the Constitution does not
demand the avoidance of all risk of pain in carrying out executions.”
696
¶141 Kentucky’s death row inmates had proposed an alternative, one-drug protocol that
would have dispensed with the use of pancuronium and potassium chloride—a protocol
never adopted or tested by any State for executions.
697
In support of this approach, they
pointed out that a barbiturate-only protocol is used routinely by veterinarians in putting
animals to sleep and that twenty-three States actually bar veterinarians from using a
neuromuscular paralytic agent like pancuronium bromide.
698
Affirming the lower court’s
judgment, however, the Supreme Court ruled that the inmates “have not carried their
burden of showing that the risk of pain from maladministration of a concededly humane
lethal injection protocol, and the failure to adopt untried and untested alternatives,
constitute cruel and unusual punishment.”
699
IX. WHERE WE STAND
A. The Death Penalty in the United States
¶142 In the United States, approximately 3300 people live on death row, though fifteen
states and the District of Columbia have now done away with capital punishment.
700
Thirty-five states, plus the federal government and the U.S. military, still authorize the
death penalty,
701
though federal executions are infrequent.
702
Kansas, New Hampshire
and the U.S. military—all of which authorize executions—have actually not seen one in
over three decades.
703
Since 1976, there have been more than 1100 executions in the
695
Id. at 1537. The Court specifically held that the risk of improper mixing of chemicals and the risk of
improper setting of IVs could not be characterized as “objectively intolerable.” Id. at 1537.
696
Id. at 1529.
697
Baze, 128 S. Ct. at 1526, 1531. A study published in 2005 in a respected medical journal, The Lancet,
had set off a heated controversy about the effectiveness of lethal injection protocols. Id. at 1532 n.2. A
toxicology study drew blood samples from executed death-row inmates and found that “most of the
executed inmates” had concentrations of sodium thiopental that “would not be expected to produce a
surgical plane of anesthesia” and that 43 percent of those executed “had concentrations consistent with
consciousness.” Id. The controversial study was cited in motions around the country to stay executions
even as others questioned the study’s findings and its reliability. Id.
698
Id. at 1535.
699
Id. at 1526. Prior to the Supreme Court’s ruling in Baze, only one Kentucky prisoner, Eddie Lee Harper,
had been executed using Kentucky’s three-drug protocol, apparently without reported problems. Id. at
1528.
700
DEATH PENALTY INFO. CTR, FACTS ABOUT THE DEATH PENALTY (2009), available at
http://www.deathpenaltyinfo.org/FactSheet.pdf. The states that no longer authorize the death penalty are
Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York,
North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. Id.
701
Id. The states that authorize the death penalty are Alabama, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and
Wyoming. Id.
702
See Death Penalty Information Center, Federal Executions 1927-2003,
http://www.deathpenaltyinfo.org/federal-executions-1927-2003 (last visited Aug. 31, 2009) (listing thirty-
seven federal executions that took place between 1927 and 2003).
703
DEATH PENALTY INFO. CTR, FACTS ABOUT THE DEATH PENALTY (2009), available at
http://www.deathpenaltyinfo.org/FactSheet.pdf.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
288
U.S., with the annual number peaking at ninety-eight in 1999.
704
But executions have
trailed off since 1999, with the number declining to forty-two in 2007 and falling even
further in 2008 as executions were put on hold while the Court considered the challenge
to lethal injection.
705
¶143 Although Baze paved the way for more executions by upholding Kentucky’s lethal
injection protocol, that case drew two dissenters.
706
Justice John Paul Stevens—writing
with candor and passion, though concurring in the result—criticized the way in which
capital punishment laws are enforced. He emphasized that America’s decision to retain
the death penalty is “the product of habit and inattention rather than an acceptable
deliberative process,”
707
and he said that “the imposition of the death penalty represents
‘the pointless and needless extinction of life.’”
708
Noting that Kentucky barred
veterinarians from using neuromuscular paralytic agents like pancuronium bromide for
animal euthanasia, Justice Stevens wrote pointedly: “It is unseemly—to say the least—
that Kentucky may well kill petitioners using a drug that it would not permit to be used
on their pets.”
709
¶144 Already, the death penalty is largely a regional phenomenon. Just ten states,
Alabama, Florida, Georgia, Louisiana, Missouri, Oklahoma, North Carolina, South
Carolina, Texas, and Virginia, account for more than eighty percent of all executions
nationwide since 1976.
710
Since executions resumed in America in 1977 with Gary
Gilmore’s execution in Utah,
711
Texas alone has carried out over 400 executions (more
than one-third of all executions)—making Texas the nation’s undisputed execution
capital.
712
In fact, since Baze, the first twenty executions all took place in the South, with
forty percent of them again taking place in just one locale, the State of Texas.
713
704
Id.
705
See Death Penalty Information Center, Executions in the United States,
http://www.deathpenaltyinfo.org/executions-united-states (last visited Aug. 31, 2008).
706
See Baze, 128 S. Ct. at 1567 (Ginsburg, J., dissenting). Justice Ginsburg wrote the dissent, joined by
Justice Souter, opining that Kentucky’s protocol “lacks basic safeguards used by other States to confirm
that an inmate is unconscious before injection of the second and third drugs.” Id. According to the dissent:
“Kentucky’s protocol does not specify the rate at which sodium thiopental should be injected. The
executioner, who does not have any medical training, pushes the drug ‘by feel’ through five feet of tubing.
In practice sessions, unlike in an actual execution, there is no resistance on the catheter, thus the
executioner’s training may lead him to push the drugs too fast.” Id. at 1572 (citations omitted).
707
Baze, 128 S. Ct. at 1546 (Stevens, J., concurring). Citing juror studies and polls showing reduced
support for capital punishment when life-without-parole sentences were an alternative, as well as a lack of
credible data showing that the death penalty deters crime any better than life sentences, Justice Stevens
declared that state-sanctioned executions are “becoming more and more anachronistic.” Id. at 1546–48.
708
Id. at 1551.
709
Id. at 1543.
710
See Death Penalty Information Center, Executions in the United States, 1608-1967, By State,
http://deathpenaltyinfo.org/executions-united-states-1608-1976-state (last visited Aug. 31, 2009).
711
Gilmore was convicted of murder and sentenced to death on October 7, 1976. He thereafter decided not
to appeal his sentence, stated that he did not “care to languish in prison for another day,” and tried to
commit suicide. See Gilmore v. Utah, 429 U.S. 1012, 1012–15 & nn.4–5 (1976). Although Gilmore had
tried to kill himself, the Supreme Court nevertheless found that Gilmore “made a knowing and intelligent
waiver of any and all federal rights he might have asserted after the Utah trial court’s sentence was
imposed, and, specifically, that the State’s determinations of his competence knowingly and intelligently to
waive any and all such rights were firmly grounded.” Id. at 1013.
712
See Death Penalty Information Center, Executions in the United States, 1608-1967, By State,
http://deathpenaltyinfo.org/executions-united-states-1608-1976-state (last visited Aug. 31, 2009).
713
See Death Penalty Information Center, Executions: 100% in the South,
http://deathpenaltyinfo.org/executions-100-south (last visited Aug. 31, 2009).
Vol. 4:2] John D. Bessler
289
¶145 But even in the Lone Star State—where public opinion polls have consistently
shown strong support for capital punishment—things are changing. In 2007, the Dallas
Morning News, unable to reconcile the death penalty’s imperfections and its
irreversibility, changed its position and now advocates abolition. “We do not believe that
any legal system devised by inherently flawed human beings can determine with moral
certainty the guilt of every defendant convicted of murder,” the editorial board wrote.
714
And in 2008, after yet another inmate’s exoneration, Dallas County District Attorney
Craig Watkins announced that his office would review nearly forty death penalty
convictions for potential errors and, if necessary, halt executions pending the review.
715
B. The Global Trend Toward Abolition
¶146 It is clear, now more than ever, that a worldwide trend toward the death penalty’s
abolition is afoot.
716
The sheer number of countries that have outlawed executions since
1975, in fact, demonstrates just how far the world’s abolitionist movement has come.
717
In the late 1970s, Portugal, Denmark, Luxembourg, Nicaragua and Norway abolished the
death penalty for all crimes, and Brazil, Fiji and Peru outlawed death sentences for
ordinary crimes.
718
In the 1980s, France, The Netherlands, Australia, Haiti,
Liechtenstein, the German Democratic Republic, Cambodia, New Zealand, Romania and
Slovenia abolished capital punishment for all crimes, and Cyprus, El Salvador and
Argentina did away with death sentences for ordinary crimes.
719
¶147 This abolitionist trend continued unabated in the 1990s, with thirty-two countries
and Hong Kong abolishing capital punishment for all crimes
720
and several other
countries forbidding death sentences for ordinary crimes.
721
In the twenty-first century,
as of 2008, fifteen more countries abolished the death penalty for all crimes,
722
with
others outlawing capital punishment for ordinary crimes.
723
Given what has happened
thus far, it seems likely that other countries around the world will follow suit in the years
to come. For America itself, it is an undeniable reality that the debate is shifting and that
many changes have taken place since the time of Beccaria and the Founding Fathers.
714
RICHARD C. DIETER, DEATH PENALTY INFO. CTR., A CRISIS OF CONFIDENCE: AMERICANS’ DOUBTS
ABOUT THE DEATH PENALTY 13 (2007).
715
Jennifer Emily & Steve McGonigle, Dallas County DA Wants to Re-examine Nearly All of the Pending
Death Row Cases, D
ALLAS MORNING NEWS, Sept. 16, 2008, at 1A.
716
SCHABAS, supra note 3, at xiii. Treaties outlawing or restricting capital punishment are now laying a
solid foundation for an emerging international norm against the use of executions. Id. at 369.
717
The early history of the abolitionist movement has drawn considerable attention in recent years. Indeed,
a recently published, seven-volume compilation collects important sources from debates about capital
punishment in Great Britain and the United States in the eighteenth and nineteenth centuries. See generally
T
HE DEATH PENALTY: DEBATES IN BRITAIN AND THE U.S., 1725-1868 (James E. Crimmins, ed., 2003).
718
Death Penalty Information Center, Abolitionist and Retentionist Countries,
http://www.deathpenaltyinfo.org/article.php?scid=30&did=140 (last visited Aug. 31, 2009); see also supra
note 44 (defining “ordinary crimes”).
719
Amnesty International, Abolitionist and Retentionist Countries, http://www.amnesty.org/en/death-
penalty/abolitionist-and-retentionist-countries (last visited Aug. 31, 2009).
720
Id.
721
Id.
722
Id. Those countries were Cote D’Ivoire, Malta, Bosnia-Herzegovina, the Federal Republic of
Yugoslavia (now Serbia and Montenegro), Cyprus, Bhutan, Samoa, Senegal, Turkey, Liberia, Mexico,
Philippines, Albania, Rwanda, and Uzbekistan. Id.
723
Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
290
C. The Transformation of American Executions
¶148 Executions in the United States were once rowdy, public affairs, often attended by
hundreds or thousands of spectators, and these spectacles were frequently replete with
drunkenness, merriment and even acts of crime committed in the very shadow of the
gallows.
724
At the 1822 execution of John Lechler in Pennsylvania, pickpockets worked
the crowd and at least fifteen of the 20,000 spectators were arrested, one for larceny,
another for murder, and still others for assault and battery or vagrancy.
725
The
widespread belief that such scenes only brutalized society is actually what largely
prompted legislators to relocate executions indoors, behind thick prison walls.
726
¶149 As American executions moved into prisons, state legislatures often simultaneously
enacted “gag” laws—such as Minnesota’s “midnight assassination law,” which required
private, nighttime executions that could only be witnessed by a few people—to strictly
regulate attendance at executions.
727
Such laws generally limited attendance to six to
twelve “reputable” or “respectable” citizens,
728
often barred newspaper reporters from
attending executions or otherwise restricted media access, and even made it a crime to
report the details of executions.
729
Politicians became so concerned after these spectacles
that, in 1893, Connecticut, for example, passed a private execution law that only
permitted “adult males” to attend executions.
730
The ritual of American executions has
thus evolved, and is now hidden from public view, visible only to a handful of prison
officials, hand-picked media representatives, and official witnesses.
731
¶150 Not only did the privatization of executions radically alter America’s death penalty
debate, but two other developments—the move to nighttime executions and changes in
the method of execution—also shaped that debate in significant ways.
732
The passage of
nighttime execution laws, requiring hangings “before sunrise” or between, say, midnight
and 3:00 a.m., as Delaware law provides,
733
made clear that legislators wanted to shield
724
Annulla Linders, The Execution Spectacle and State Legitimacy: The Changing Nature of the American
Execution Audience, 1833-1937, 36 L
AW & SOC’Y REV. 607, 617–20 (2002).
725
Id. at 618–19.
726
BESSLER, DEATH IN THE DARK, supra note 31, at 37–39, 42–44.
727
See John D. Bessler, The “Midnight Assassination Law” and Minnesota’s Anti-Death Penalty
Movement, 1849-1911, 22 W
M. MITCHELL L. REV. 577 (1996).
728
BESSLER, DEATH IN THE DARK, supra note 31, at 4.
729
Id. at 49–56. During the heyday of public executions, civic leaders grew ashamed of the carnival-like
atmosphere that often accompanied these events and worried about the ever-present prospect of “botched”
or “bungled” executions. Id. at 67–71; see also Linders, supra note 724, at 630, 637–38.
730
BESSLER, DEATH IN THE DARK, supra note 31, at 68.
731
State legislatures and prison officials have specifically barred cameras from execution chambers to
ensure state-sanctioned secrecy. See John D. Bessler, Televised Executions and the Constitution:
Recognizing a First Amendment Right of Access to State Executions, 45 F
ED. COMM. L.J. 355 (1993). This
black-out of executions from the public’s consciousness has led to public apathy and—as Austin Sarat
writes—“the modern bureaucratization of capital punishment,” transforming every execution “from an
arousing public spectacle of vengeance to a soothing matter of mere administration.” S
ARAT, supra note
54, at 189.
732
For a comprehensive history of those changes, including the legislative history behind laws requiring
private, nighttime executions, see B
ESSLER, DEATH IN THE DARK, supra note 31; Michael Maddow,
Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York, 43 B
UFF. L.
REV. 461 (1995). Public executions—which drew people to the abolitionist cause, but which came to an
end in the 1930s—were once fixtures in America life. See generally M
ASUR, supra note 1 (recounting
early American executions).
733
BESSLER, DEATH IN THE DARK, supra note 31, at 81–82; see also DEL. CODE, tit. 11, § 4209(f). The
Vol. 4:2] John D. Bessler
291
the public and the press from these gruesome events.
734
Such laws, first passed in the
1880s in the Midwestern states of Ohio, Indiana, and Minnesota, were soon enacted
around the country, forcing executions into the dead of night.
735
From 1977 to 1995,
more than eighty percent of all American executions took place between the hours of
11:00 p.m. and 7:30 a.m., with over half taking place between midnight and 1:00 a.m.
736
Americans, in other words, were often fast asleep when executions took place.
¶151 The continual search for—and implementation of—more “humane” ways to put
inmates to death shows the discomfort associated with state-sanctioned killing. The
preferred method of execution shifted from the noose
737
and firing squad
738
to
electrocution
739
and the gas chamber
740
to what we predominately use today: lethal
State of Louisiana amended its laws requiring executions between “12:00 o’clock midnight and 3:00 a.m.”
in 1999, and now requires executions to be conducted “between the hours of 6:00 p.m. and 9:00 p.m.” L
A.
REV. STAT. ANN., tit. 15, § 569.1.
734
JOHN D. BESSLER, KISS OF DEATH: AMERICA’S LOVE AFFAIR WITH THE DEATH PENALTY 87–88 (2003)
[hereinafter B
ESSLER, KISS OF DEATH].
735
BESSLER, DEATH IN THE DARK, supra note 31, at 84–90.
736
Id. at 6.
737
Baze v. Rees, 128 S. Ct 1520, 1526 (2008) (quoting Campbell v. Wood, 511 U.S. 1119 (1994)
(Blackmun, J., dissenting from denial of certiorari)); see also Deborah W. Denno, Getting to Death: Are
Executions Constitutional?, 82 I
OWA L. REV. 319, 364 (1997) (identifying forty-eight States and Territories
that used hanging as a method of execution). Hanging is now authorized only in New Hampshire and the
State of Washington. See N.H.
REV. STAT. ANN. § 630:5 (2007); WASH. REV. CODE § 10.95.180 (2006);
see also Death Penalty Information Center, Methods of Execution,
http://www.deathpenaltyinfo.org/methods-execution (last visited Aug. 31, 2009). Although hangings are
now extremely rare, hangings still sometimes occur, even in the United States. In 1994, the Supreme Court
refused to grant certiorari and stay an execution in the State of Washington to be carried out by hanging,
drawing a sharp dissent from Justice Blackmun. See Campbell v. Wood, 511 U.S. 1119 (Blackmun, J.,
dissenting) (“Forty-six of the forty-eight States that once imposed hanging have rejected that punishment as
unnecessarily tortuous, brutal, and inhumane. I can only conclude that today in the United States of
America, hanging is cruel and unusual punishment.”).
738
Firing squads were frequently used to execute Union deserters during the Civil War. See ROBERT I.
ALOTTA, CIVIL WAR JUSTICE: UNION ARMY EXECUTIONS UNDER LINCOLN 202–09 (1989). A firing squad
was also used to execute Gary Gilmore, the first man to be executed after Furman, and firing squads are
still authorized in Idaho and Oklahoma. B
ESSLER, DEATH IN THE DARK, supra note 31, at 167–68; IDAHO
CODE § 19-2716 (Lexis 2004); see also Death Penalty Information Center, Methods of Execution,
http://www.deathpenaltyinfo.org/methods-execution (last visited Aug. 31, 2009).
739
In 1888, New York became the first state to authorize the use of electrocution as a method of
punishment. Baze, 128 S. Ct. at 1526. By 1915, eleven other states had adopted that method, motivated by
the belief that electrocution was “‘less painful and more humane than hanging.’” Id. (quoting Malloy v.
South Carolina, 237 U.S. 180 (1915)). But see Glass v. Louisiana, 471 U.S. 1080 (Brennan, J., dissenting
from denial of certiorari) (graphically describing what happens to an inmate’s body during an electrocution
and arguing that the Supreme Court should have considered the question whether death by electrocution
violates the Eighth Amendment as it is “the contemporary technological equivalent of burning people at the
stake”). “For me,” Justice Brennan wrote in his dissent in Glass, “arguments about the ‘humanity’ and
‘dignity’ of any method of officially sponsored executions are a constitutional contradiction in terms.” Id.
at 1093–94. Today, nine states still theoretically authorize electrocutions—though lethal injection is the
standard practice is all of those states. See Death Penalty Information Center, Methods of Execution,
http://www.deathpenaltyinfo.org/methods-execution (last visited Aug. 31, 2009).
740
The original idea for death by lethal gas “was not a gas chamber but a cell with poison gas pipes so that
the inmate could be painlessly dispatched while he slept.” Jonathan I. Groner, The Hippocratic Paradox:
The Role of the Medical Profession in Capital Punishment in the United States, 35 F
ORDHAM URB. L.J.
883, 889 (2008). That proved unworkable, however, “as the gas would also endanger prison guards or
other inmates who were not scheduled to die,” thus leading to the construction of sealed, octagonal gas
chambers such as the one at San Quentin. Id. The gas chamber, of course, also conjures up the most
disturbing images imaginable. In Nazi Germany, gas chambers were used extensively at concentration
camps to kill men, women and children as part of Hitler’s diabolical plot to exterminate Jews and other
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
292
injection.
741
Chemically induced death—now the preferred method of execution—
attempts to clinically mask the horror of state-sponsored killings, even as many
physicians categorically refuse to participate in these veiled rituals that predate the Dark
Ages.
742
D. The Assault on Habeas Corpus and the Abolitionist Movement
¶152 In the last few decades, yet another U.S. development is of note: the frontal assault
on habeas corpus. It began with a series of Supreme Court cases curtailing the
availability of that venerable, centuries-old remedy.
743
The Court in Coleman v.
Thompson,
744
for example, refused to consider a death-row inmate’s claims after his
lawyer filed the notice of appeal three days late.
745
In other cases, death-row inmates’
claims have been denied on the basis of complex legal doctrines such as the Teague v.
Lane
746
“non-retroactivity” principle.
747
In one case, the Supreme Court even held that
minorities. See Justin H. Roy, Strengthening Human Rights Protection: Why the Holocaust Slave Labor
Claims Should Be Litigated, 1 S
CHOLAR: ST. MARY’S L. REV. ON MINORITY ISSUES 153, 158–59 (1999).
Today, only five American states—including California and Missouri—still authorize the use of lethal gas.
See C
AL. PENAL CODE ANN. § 3604 (West 2000); MO. REV. STAT. § 546.720 (2007); see also Death
Penalty Information Center, Methods of Execution, http://www.deathpenaltyinfo.org/methods-execution
(last visited Aug. 31, 2009).
741
As of 2008, thirty-six states had adopted lethal injection as the exclusive or primary means of execution.
Baze, 128 S. Ct. at 1526. The federal government also uses lethal injection at the Federal Execution Center
in Terre Haute, Indiana. Id.; see also 18 U.S.C. § 3591 et seq. As of 2008, nine states allowed for lethal
injection in addition to an alternate method such as electrocution, hanging, lethal gas or firing squad. Baze,
128 S. Ct. at 1527 n.1. Nebraska was, until recently, the only state whose law specified electrocution as the
sole method of execution, see N
EB. REV. STAT. § 29-2532 (1995), though the Nebraska Supreme Court had
struck down that method under the Nebraska Constitution. See State v. Meta, 745 N.W.2d 229, 261–62
(Neb. 2008). Nebraska now authorizes lethal injection. Death Penalty Information Center, State by State
Database, http://www.deathpenaltyinfo.org/state_by_state (last visited Aug. 31, 2009).
742
See Leigh B. Bienen, Anomalies: Ritual and Language in Lethal Injection Regulations, 35 FORDHAM
URB. L.J. 857, 861 (2008) (“Every professional medical society has forbidden doctors to participate in
executions performed by the state.”); Deborah W. Denno, The Lethal Injection Quandary: How Medicine
Has Dismantled the Death Penalty, 76 F
ORDHAM L. REV. 49, 123 (2007) (“On February 20, 2006, Michael
Morales was hours away from execution when two anesthesiologists declined to participate in the lethal
injection procedure.”). Doctors who do participate in executions in violation of the AMA’s code take
extreme measures to shield their identities. See Death Penalty Information Center, Executions News and
Developments: 2007, “Florida Doctors Wear ‘Moon Suits’ to Hide Participation in Lethal Injections,”
http://www.deathpenaltyinfo.org/executions-news-and-developments-2007 (last visited Aug. 31, 2009).
743
See Barry Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform, 83 CAL. L. REV. 485, 486
(1995) (“Almost two decades ago . . . the Court signaled its intention to impose strict limitations upon the
availability of the writ.”).
744
501 U.S. 722 (1991).
745
See Rae K. Inafuku, Coleman v. Thompson - Sacrificing Fundamental Rights in Deference to the States:
The Supreme Court’s 1991 Interpretation of the Writ of Habeas Corpus, 34 S
ANTA CLARA L. REV. 625,
652 (1994).
746
489 U.S. 288 (1989) (plurality). Teague held that, in certain circumstances, a “new” constitutional rule
of criminal procedure would not be applied “retroactively” in cases on collateral review. See also Danforth
v. Minnesota, 128 S. Ct. 1029, 1032 (2008). Thus, an inmate seeking habeas relief may not rely upon a
rule of law announced in a Supreme Court decision handed down after his or her conviction becomes final
upon the completion of any direct appeal. Teague’s bar on retroactive application of “new rules of
constitutional criminal procedure” has two exceptions. First, the bar does not apply to rules forbidding
punishment of “certain primary conduct” or for certain classes of defendants “because of their status or
offense.” Beard v. Banks, 542 U.S. 406, 416 (2004). The second exception is for “watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at
417; Tyler v. Cain, 533 U.S. 656, 665 (2001).
Vol. 4:2] John D. Bessler
293
death row inmates—who have no realistic ability to vindicate their habeas corpus rights
without a lawyer—have no constitutional right to counsel in habeas corpus
proceedings.
748
¶153 The assault continued with the passage of the Antiterrorism and Effective Death
Penalty Act of 1996.
749
That Act contains a one-year statute of limitations, makes it more
onerous to file habeas petitions, and requires federal courts to give greater deference to
state courts—all in an effort to streamline court proceedings to speed up executions.
750
The culmination of the assault on habeas corpus came when the Bush Administration
Under the Supreme Court’s jurisprudence, whether a rule is classified as substantive or procedural
carries considerable weight. “New substantive rules generally apply retroactively.” Schriro v. Summerlin,
542 U.S. 348, 351 (2004). According to the Court, substantive rules apply retroactively because they
“necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make
criminal’” or “faces a punishment that the law cannot impose upon him.” Id. at 352. In contrast, “[n]ew
rules of procedure” are not applied retroactively for the stated reason that “[t]hey do not produce a class of
persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have been acquitted otherwise.” Id.
747
The Supreme Court has decided many such cases, making life-and-death decisions hinge on a doctrine
that even many lawyers find indecipherable. See Beard v. Banks, 542 U.S. 406, 408 (2004) (Mills v.
Maryland, 486 U.S. 367 (1988) held not retroactive in a death penalty case); Schriro v. Summerlin, 542
U.S. 348, 358 (2004) (Ring v. Arizona, 536 U.S. 584 (2002) did not apply retroactively to a death penalty
case already final on direct review); O’Dell v. Netherland, 521 U.S. 151, 153 (1997) (Simmons v. South
Carolina, 512 U.S. 154 (1994) was a “new” rule and therefore could not be used to disturb a petitioner’s
death sentence in a habeas corpus proceeding); Lambrix v. Singletary, 520 U.S. 518, 539 (1997) (Espinosa
v. Florida, 505 U.S. 1079 (1992) announced a “new” rule that could not be used on collateral review in a
death penalty case); Graham v. Collins, 506 U.S. 461, 463 (1993) (concluding that death row inmate’s
claim was barred by Teague); Sawyer v. Smith, 497 U.S. 227, 232, 245 (1990) (holding that Caldwell v.
Mississippi, 472 U.S. 320 (1985) could not be used retroactively by a state prisoner seeking habeas relief);
Butler v. McKellar, 494 U.S. 407, 408–09 (1990) (death row inmate could not use decision in Arizona v.
Roberson, 486 U.S. 675 (1988) retroactively); Saffle v. Parks, 494 U.S. 484 (1990) (rejecting death row
inmate’s claim on collateral review as barred by the Teague doctrine).
748
Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion). In 1991, a majority of the Supreme Court
then cited Giarratano for the proposition that “[t]here is no constitutional right to an attorney in state post-
conviction proceedings.” See Coleman v. Thompson, 501 U.S. 722, 752 (1991).
Obviously, unless a lawyer agrees to take on a death row inmate’s post-conviction case on a pro bono
basis, there is no practical way for a death row inmate to exercise habeas corpus rights. Death row inmates
are typically confined to their cells for twenty-three hours a day, and they almost always lack the mental
faculties to wade through—let alone understand—the complex morass of laws, rules and procedures that
lawyers and judges call “death penalty jurisprudence.” See, e.g., Clive A. Stafford Smith & Remy Voisin
Starns, Folly by Fiat: Pretending that Death Row Inmates Can Represent Themselves in State Capital Post-
Conviction Proceedings, 45 L
OY. L. REV. 55 (1999); John H. Blume, Killing the Willing: “Volunteers,”
Suicide and Competency, 103 M
ICH. L. REV. 939, 950 n.54 & 966 (2005).
Capital litigation—with lots of traps for the unwary, like procedural bars and retroactivity and
exhaustion of remedies rules—is difficult enough for experienced lawyers to navigate, let alone inmates
with little education and low IQ scores. See, e.g., Donald P. Lay, The Writ of Habeas Corpus: A Complex
Procedure for a Simple Process, 77 M
INN. L. REV. 1015 (1993). In Mississippi, Willie Russell, an
unrepresented man who tested in the range of mental retardation in school, once came within forty-five
minutes of being executed without a lawyer. Smith & Starns, supra, at 58. Not surprisingly, Mississippi
death row inmates, who were once administered the Law School Admission Test as part of a study of their
intellectual functioning, scored abysmally on that exam. Id. at 67–73.
749
Pub. L. 104-132, 110 Stat. 1214 (1996).
750
28 U.S.C. § 2244(d)(1); 28 U.S.C. § 2254(d); see also JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL
HABEAS CORPUS PRACTICE AND PROCEDURE § 3.2 (5th ed. 2005) (providing an overview of AEDPA’s
provisions). Ironically, the attempt to streamline habeas corpus procedures and speed up executions came
at the same time that increasing numbers of death row inmates were being exonerated through the very
habeas corpus process the Act sought to short-circuit. See Death Penalty Information Center, Innocence:
Those Freed From Death Row, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row (last
visited Aug. 31, 2009).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
294
determined that detainees in U.S. custody could be held for indefinite periods of time
without charge.
751
Only in 2008 did the Supreme Court step in and rule that Guantánamo
Bay detainees—some held for over six years—have the constitutional right to file habeas
corpus petitions to challenge the legality of their detention.
752
¶154 Although George W. Bush oversaw many Texas executions as governor and the
Bush Administration fervently backed capital prosecutions,
753
the abolitionist movement
in the United States—and around the world
754
—is still very much alive. The National
Coalition to Abolish the Death Penalty
755
does advocacy work and puts out alerts, and
dozens of affiliates and other national and state organizations, including the Campaign to
End the Death Penalty
756
and The Moratorium Campaign,
757
also work to end capital
punishment.
758
The ACLU also seeks a national moratorium on executions; Murder
Victims’ Families for Reconciliation,
759
comprised of the family members of homicide
victims, opposes capital punishment; and Amnesty International regularly opposes
executions and tracks death penalty developments.
760
Another non-profit, the Death
Penalty Information Center, maintains a comprehensive website providing the latest
information on death penalty issues.
761
All of these entities are harnessing the power of
the Internet and combating capital punishment with another powerful tool: the facts.
751
The Bush Administration repeatedly ignored basic human rights, authorizing torture and permitting the
use of extraordinary renditions that resulted in torture. See Rosemary Foot, Exceptionalism Again: The
Bush Administration, the “Global War on Terror” and Human Rights, 26 L
AW & HIST. REV. 707, 712–14
(2008); David Weissbrodt & Amy Bergquist, Extraordinary Rendition and the Torture Convention, 46 V
A.
J. INT’L L. 585, 590–98 (2006).
752
Boumediene v. Bush, 128 S. Ct. 2229 (2008). The Court ruled that “[t]he Framers viewed freedom from
unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a
vital instrument to secure that freedom.” Id. at 2244. For information on the battle leading up to that case,
see JOSEPH MARGULIES, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER (2006).
753
Obviously, the use of the federal death penalty pre-dates the Bush Administration. A recent report
shows that, from 1989 to 2007, there were 176 capital trials in federal courts, resulting in 61 defendants
being sentenced to death. See U
PDATE ON THE COST, QUALITY, AND AVAILABILITY OF DEFENSE
REPRESENTATION IN FEDERAL DEATH PENALTY CASES, PRELIMINARY REPORT ON PHASE ONE OF THE
RESEARCH 11 (June 2008), available at http://www.uscourts.gov/defenderservices/FDPC.pdf#page=16.
754
Several international organizations, including Amnesty International, Hands Off Cain, and Human
Rights Watch, are actively pushing for the death penalty’s abolition. See Amnesty International USA,
Death Penalty, http://www.amnestyusa.org/Our_Issues/Death_Penalty/page.do?id=1011005&n1=3&n2=28
(last visited Aug. 31, 2009); Nessuno Tocchi Caino, http://english.nessunotocchicaino.it/ (last visited Aug.
31, 2009); Human Rights Watch, http://www.hrw.org/campaigns/deathpenalty/ (last visited Aug. 31, 2009).
755
National Coalition to Abolish the Death Penalty, http://www.ncadp.org/ (last visited Aug. 3, 2008).
756
Campaign to End the Death Penalty, http://nodeathpenalty.org/content/index.php (last visited Aug. 31,
2009).
757
The Moratorium Campaign, http://www.moratoriumcampaign.org/ (last visited Aug. 31, 2009). The
Moratorium Campaign was founded by Sister Helen Prejean, author of Dead Man Walking.
758
For links to various national and state organizations, see the list of links on the websites of the Death
Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?did=547&scid=37#Abolition (last
visited Aug. 31, 2009); The Moratorium Campaign, http://www.moratoriumcampaign.org/ (last visited
Aug. 31, 2009); the National Coalition to Abolish the Death Penalty, NCADP Affiliates,
http://www.ncadp.org/index.cfm?content=55 (last visited Aug. 31, 2009); and the National Coalition to
Abolish the Death Penalty, Resources, http://www.ncadp.org/index.cfm?content=7 (last visited Aug. 31,
2009).
759
See Murder Victims’ Families for Reconciliation, http://www.mvfr.org/ (last visited Aug. 31, 2009).
760
See Amnesty International USA, Death Penalty, http://www.amnestyusa.org/our-priorities/death-
penalty/page.do?id=1011005&n1=3&n2=28 (last visited Aug. 31, 2009).
761
See Death Penalty Information Center, http://www.deathpenaltyinfo.org/ (last visited Aug. 31, 2009).
Vol. 4:2] John D. Bessler
295
X. WHAT LIES AHEAD?
A. The Eighth Amendment in the Twenty-First Century
¶155 The death penalty has been used for centuries, so it would be naïve to believe that
this form of punishment will die out without a difficult and prolonged fight. In the
United States, the battles over death sentences were fought first in state legislatures, then
moved to the courts, culminating with the challenge to the death penalty’s
constitutionality in Furman. Although the Supreme Court has rejected constitutional
challenges to the death penalty itself and to the most common method of execution—
lethal injection—this does not mean that Eighth Amendment challenges are dead letters.
On the contrary, the Eighth Amendment continues to have vitality, if for no other reason
than because the Eighth Amendment’s interpretation is tied to changing public attitudes
and the “evolving standards of decency that mark the progress of a maturing society”—
the touchstone that the Supreme Court itself has articulated as the law.
762
¶156 While the Supreme Court may not declare the death penalty unconstitutional
anytime soon, its Eighth Amendment jurisprudence is already fraught with irreconcilable
contradictions brought about by the inhumanity of executions.
763
The Supreme Court, for
example, has repeatedly made clear that the Eighth Amendment safeguards a prisoner’s
treatment and his or her conditions of confinement.
764
When someone is imprisoned, the
Constitution imposes “a corresponding duty” on the government “to assume some
responsibility” for that inmate’s “safety and general well being.”
765
Thus, the Supreme
Court’s Eighth Amendment jurisprudence protects inmates from physical harm yet
permits their execution.
762
Atkins, 536 U.S. at 311–12; Trop, 356 U.S. at 101. Whether the Supreme Court should consider only
U.S. norms or should also examine international norms and developments has been hotly debated. See
Youngjae Lee, International Consensus as Persuasive Authority in the Eighth Amendment, 156 U.
PA. L.
REV. 63 (2007); see also Sandra Babcock, The Global Debate on the Death Penalty, 34 HUM. RTS. 17, 18
(Spring 2007). It is clear that in capital cases the Supreme Court has considered non-U.S. sources from
time to time. See Mark C. Rahdert, Comparative Constitutional Advocacy, 56 A
M. U. L. REV. 553, 556–57,
571–73 (2007).
The Framers themselves looked beyond America’s shores for guidance as they created America’s
democracy, clearly understanding that Americans would be bound by “the Law of Nations.” See U.S.
C
ONST., art. 1, § 8, cl. 10 (giving Congress the power “[t]o define and punish Piracies and Felonies
committed on the high Seas, and Offenses against the Law of Nations”); Ruth Bader Ginsburg, Looking
Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 22 Y
ALE L.
& POL’Y REV. 329, 330 (2004); Koh, supra note 371, at 1087–90.
763
The Supreme Court itself has noted “a lack of clarity” in its Eighth Amendment jurisprudence. Lockyer
v. Andrade, 538 U.S. 63, 72 (2003).
764
Helling v. McKinney, 509 U.S. 25, 31 (1993).
765
DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199–200 (1989). The
government’s Eighth Amendment duties include, first and foremost, the provision of a prisoner’s “basic
human needs—e.g., food, clothing, shelter, medical care, and reasonable safety.” Id. For example, the
Supreme Court has held that where inmates were crowded into cells and exposed to infectious diseases
such as hepatitis and venereal disease, the Eighth Amendment required a remedy. See Hutto v. Finney, 437
U.S. 678, 682 (1978).
On the other hand, the Eighth Amendment “does not mandate comfortable prisons.” Peterkin v. Jeffes,
855 F.2d 1021, 1027 (3d Cir. 1988). Thus, a lack of significant airflow to death row inmates’ cells has
been held not to violate the Eighth Amendment where it was found not to pose a genuine health risk, such
as the development and spread of infectious respiratory diseases. The Constitution, it has been held, only
mandates ventilation sufficient to support life and to prevent the spread of such diseases. Id. at 904–05.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
296
¶157 In Estelle v. Gamble,
766
the Supreme Court specifically held that “deliberate
indifference to serious medical needs of prisoners” violates the Eighth Amendment
because it constitutes the “unnecessary and wanton infliction of pain.”
767
Likewise, in
Helling v. McKinney,
768
the Court held that a prisoner stated a civil rights claim under the
Eighth Amendment based on exposure to second-hand smoke.
769
In yet another case,
Hope v. Pelzer,
770
the Court held that Alabama prison officials violated the Eighth
Amendment when they handcuffed a shirtless inmate to a hitching post for seven hours,
denied him bathroom breaks, and gave him water only once or twice, which resulted in
sunburns and dehydration.
771
Is it not ironic that the Eighth Amendment protects inmates
from second-hand smoke and gratuitous, day-long exposure to the hot sun yet allows
states to deliberately kill prisoners?
772
B. The Future of America’s Death Penalty Debate
¶158 For now, the battle over America’s death penalty will return—as it must—to
legislatures across the country. Capital punishment opponents will have to continue to
push for moratoriums and continue to expose all of the death penalty’s many flaws.
Wrongful convictions—such as those uncovered by Northwestern’s Center on Wrongful
Convictions
773
—must be better publicized so that the stories of the innocent who spent
766
429 U.S. 97 (1976).
767
Id. at 104; see also Farmer v. Brennan, 511 U.S. 825, 828–47 (1994) (where transsexual claimed that
prison officials showed “deliberate indifference” by placing the petitioner in the general prison population,
the Supreme Court held that prison officials may be held liable under the Eighth Amendment for denying
humane conditions of confinement if they know that an inmate will face a substantial risk of harm, and
disregard that risk by failing to take reasonable measures to abate it); Hudson v. McMillian, 503 U.S. 1, 4
(1992) (use of excessive physical force against a prisoner may constitute cruel and unusual punishment
even if the prisoner does not suffer serious injury); Wilson v. Seiter, 501 U.S. 294, 297 (1991) (prisoners
claiming that conditions of confinement constituted Eighth Amendment violation must show “deliberate
indifference” on the part of prison officials).
768
509 U.S. 25 (1993).
769
Id. at 35. In Helling, the Supreme Court expressly stated: “That the Eighth Amendment protects against
future harm to inmates is not a novel proposition.” Id. at 33. As the Court ruled: “We would think that a
prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting
for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the
exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows
no serious current symptoms.” Id.; accord Baze, 128 S. Ct. at 1530 (plurality opinion) (“Our cases
recognize that subjecting individuals to a risk of future harm—not simply actually inflicting pain—can
qualify as cruel and unusual punishment.”).
770
536 U.S. 730 (2002).
771
Id. at 733–35 & n.2. The Supreme Court found that the facts as alleged by the inmate constituted an
“obvious” Eighth Amendment violation. Id. at 738. The Court emphasized that the inmate was
“knowingly subjected . . . to a substantial risk of physical harm, to unnecessary pain caused by the
handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the
heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk
of particular discomfort and humiliation.” Id. “The use of the hitching post under these circumstances,”
the Court ruled, “violated the ‘basic concept underlying the Eighth Amendment . . .’” (i.e., “human dignity”
and “the dignity of man”). Id. at 738, 745.
772
See, e.g., Weaver v. Clarke, 45 F.3d 1253 (8th Cir. 1995) (holding that prison officials’ alleged
deliberate indifference to prisoner’s smoke-induced illness violated the Eighth Amendment); State ex rel.
White v. Parsons, 483 S.E.2d 1, 6 (W. Va. 1996) (“[P]rison officials may not be indifferent to the desire of
inmates to avoid concentrations of so-called ‘second hand smoke.’”).
773
Northwestern Law Center on Wrongful Convictions,
http://www.law.northwestern.edu/wrongfulconvictions (last visited Aug. 31, 2009).
Vol. 4:2] John D. Bessler
297
time on death row are not forgotten.
774
The full extent of racial discrimination in the
death penalty’s administration—as found in study after study and recognized by the
Supreme Court itself—must be brought to the public’s attention.
775
The arbitrary
application of the death penalty—something that has not changed since Furman or, for
that matter, since Beccaria’s time—also must be highlighted,
776
as must the enormous
financial costs of the death penalty. Dollars now spent on pursuing the death penalty
could be better spent to prevent crime, to educate our children, and to further public
safety in our communities in concrete ways.
777
Finally, the emotional toll that executions
exact on judges and jurors, as well as on prison guards and executioners, must be brought
to light.
778
774
See Richard C. Dieter, Methods of Execution and Their Effect on the Use of the Death Penalty in the
United States, 35 F
ORDHAM URB. L.J. 789, 795 (2008) (“It took a series of embarrassing exonerations of
death row inmates and the advent of DNA testing to change the way the death penalty was viewed. These
cases of innocence revealed with sharp clarity that states were making serious errors in their administration
of the death penalty.”).
775
The racial discrimination associated with America’s death penalty is well-documented. See SAMUEL R.
GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING
(1989); Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, 39 C
OLUM.
HUM. RTS. L. REV. 34 (2007); Theodore M. Shaw, Maintaining Hope in the Struggle Against the
Constitutional Tolerance of Racial Discrimination, 39 C
OLUM. HUM. RTS. L. REV. 59 (2007); David C.
Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and
Legal Overview, with Recent Findings from Philadelphia, 83 C
ORNELL L. REV. 1638 (1998). A 1990 study
by the General Accounting Office found a pattern of racial discrimination in the charging and imposition of
death sentences. G
ENERAL ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH INDICATES
PATTERN OF RACIAL DISPARITIES (1990).
The racial bias that still exists in the death penalty’s administration is reason enough to do away with it.
As Justice William Brennan wrote in his dissent in McCleskey v. Kemp: “It is tempting to pretend that
minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no
echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the
reverberations of injustice are not so easily confined.” 481 U.S. at 344 (Brennan, J., dissenting).
776
See Stephen B. Bright, Death by Lottery—Procedural Bar of Constitutional Claims in Capital Cases
Due to Inadequate Representation of Indigent Defendants, 92 W.
VA. L. REV. 679 (1990); David McCord,
Lightning Still Strikes: Evidence from the Popular Press that Death Sentencing Continues to Be
Unconstitutionally Arbitrary More Than Three Decades After Furman, 71 B
ROOK. L. REV. 797 (2005); see
also Janet C. Hoeffel, Risking the Eighth Amendment: Arbitrariness, Juries, and Discretion in Capital
Cases, 46 B.C.
L. REV. 771, 824 (2005) (arguing that “[t]he only procedure that comes close to enforcing
the substantive right to a nonarbitrary verdict is review of the jurors’ reasons for imposing death”).
777
The Court of Appeals of New York declared that state’s death penalty statute unconstitutional in 2004.
New York v. LaValle, 817 N.E.2d 341 (N.Y. 2004). This resulted in the closure of New York's Capital
Defender Office, which had opened in 1995 after the New York legislature reinstated capital punishment.
The Capital Defender Office once had more than 70 staffers and a $14 million annual budget. Since the
office’s opening, New York had roughly 10,000 murders, prosecutors considered bringing death penalty
charges in 877 cases, district attorneys filed notices of intent to seek the death penalty in just 58 cases, and
juries actually imposed death sentences in only 7 cases. No one—not one person—was ever executed in
the Empire State despite the fact that some $170 million was spent administering the statute in an effort to
impose executions. The closing of New York’s death row facility was also estimated to result in a savings
of $300,000 per year. See Cara H. Drinan, The Revitalization of Ake: A Capital Defendant’s Right to
Expert Assistance, 60 O
KLA. L. REV. 283, 308 (2007); Legislative Activity-New York, Death Penalty
Information Center, http://www.deathpenaltyinfo.org/article.php?did=2214 (last visited Aug. 31, 2009).
778
See MOLLY TREADWAY JOHNSON & LAURAL L. HOOPER, FED. JUDICIAL CTR., RESOURCE GUIDE FOR
MANAGING CAPITAL CASES 43 (2004) (“A number of judges conducted their capital trials on a less-than-
full-time schedule. For example, several judges ran the trial from 9 to 5 four days a week, and held no trial
proceedings on the fifth day. Although some judges do this as a matter of course in any long trial, other
judges pointed out aspects of a death-penalty case that make taking a day off even more justified. For
example, some cited the emotional toll that such cases take on everyone involved, including the attorneys,
judge, and jurors. Having a day off, they reasoned, helped to alleviate some of this tension.”).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
298
¶159 As a society, we certainly do not hold up executioners—those who deliver the
deadly intravenous drugs at lethal injections—as role models for our children. Why?
Because what executioners do—kill people who are strapped down on gurneys—is so
undignified, so uncivilized. Even while authorizing them, those most responsible for
executions like to keep a safe, respectable distance from them. Neither governors nor
federal judges, for example, ever pull the switch or push the buttons that end a person’s
life, as that would be far too unseemly. Instead, legislators, governors, and judges direct
prison guards—whose identities are protected
779
—to carry out executions, something that
few people would want to do themselves.
780
American parents may dream of their
children going to college, becoming doctors or lawyers or maybe even growing up to be
President one day, but I suspect no mothers or fathers want their children to grow up to
be executioners.
¶160 Because we let it, the gears of America’s death penalty machine thus grind on,
churning out execution after execution.
781
And because nothing is done to stop them,
executions continue to take place using execution equipment supplied by the likes of Fred
Leuchter, a Holocaust denier and designer of execution machines who was found to have
practiced engineering without a license.
782
Meanwhile, the men and women tasked with
killing killers suffer headaches, loss of sleep and recurring nightmares, even debilitating
mental breakdowns after they perform the ugly work asked of them.
783
¶161 Everywhere the death penalty is still in use, executioners are left to grapple with
what they do—and with what they have done. In Uganda, a prison official who oversaw
779
Executioners wear hoods or, in Illinois, are required by law to be paid in cash for their services to shield
their identities. See B
ESSLER, KISS OF DEATH, supra note 734, at 110.
780
Hangmen in England frequently had to be recruited from a pool of condemned inmates—inmates who
were reprieved if they agreed to serve as executioners. Cottrol, supra note 135, at 1649.
781
At last count more than 15,000 executions had taken place on American soil. M. Watt Espy & John
Ortiz Smykla, Executions in the United States, 1608-2002: The Espy File,
http://www.deathpenaltyinfo.org/article.php?did=269&scid= (last visited Aug. 31, 2009) (referencing “The
Espy File,” which documents 15,269 executions from 1608 to 2002).
782
See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 IOWA L. REV. 319, 354–
55 (1997); Patricia Roy, Not So Shocking: The Death of the Electric Chair in Georgia at the Hands of the
Georgia Supreme Court in Dawson v. State, 53 M
ERCER L. REV. 1695, 1695 n.1 (2002); James R. Wong,
Lethal Injection Protocols: The Failure of Litigation to Stop Suffering and the Case for Legislative Reform,
25 T
EMP. J. SCI. TECH. & ENVTL. L. 263, 268–69 (2006); see also id. at 268 n.64 (“Leuchter’s qualifications
were severely criticized when he participated in a study at the behest of neo-Nazis to prove that the
Holocaust never happened. Testing the walls of concentration camps in Poland, he concluded that there
was no mass killing of Jews by gas chamber because there was no evidence of lethal gas found in the walls.
It was revealed that Leuchter’s only qualifications were college classes in chemistry and physics while
studying for a Bachelor of Arts degree.”).
Leuchter, who produced a report for a Canadian court case alleging that no gassings ever occurred at
concentration camps such as Auschwitz, was disqualified from serving as an expert witness in the case, the
judge finding Leuchter not competent to render any such opinion. See Vera Ranki, Holocaust History and
the Law: Recent Trials Emerging Theories, 9 C
ARDOZO STUD. L. & LITERATURE 15, 24–25 (1997).
783
See Dan Markel, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the
Abolition of the Death Penalty, 40 H
ARV. C.R.-C.L. L. REV. 407, 459 (2005); Witness to an Execution, All
Things Considered, Oct. 20, 2000, available at http://soundportraits.org/on-air/witness_to_an_execution/
(last visited Aug. 31, 2009) (former corrections officer Fred Allen discusses his own mental breakdown
after participating in executions); Jim Avila, Mary Harris & Chris Francescana, Interview with an
Executioner ABC News, Dec. 17, 2007, available at
http://abcnews.go.com/TheLaw/Story?id=4015348&page=4; Karen Feldschere, The Warden,
N
ORTHEASTERN ALUMNI MAG., Sept. 2004, available at
http://www.northeastern.edu/magazine/0409/feature3.shtml.
Vol. 4:2] John D. Bessler
299
what he called a “debasing and dehumanizing” execution vowed to never attend one
again, saying he did not sleep for two days after witnessing it, and that it was
“particularly unnerving” to have to command others to carry it out because—as he
attested in his affidavit—“my conscience tells me that killing is wrong.”
784
Executioners
in the United States have also expressed qualms or deep personal reservations about what
they do, with many coming to oppose executions altogether.
785
For example, Jeanne
Woodford—San Quentin’s former warden—wrote that she “came to believe that the
death penalty should be replaced with life without the possibility of parole.” “To take a
life in order to prove how much we value another life does not strengthen our society,”
she explained, saying that the death penalty “devalues our very being and detracts crucial
resources from programs that could truly make our communities safer.”
786
¶162 Over two centuries ago, Beccaria himself recognized the ambivalence ordinary
citizens feel towards executioners. “What are the sentiments of each individual regarding
the death penalty?” Beccaria asked. “We may read them,” he offered, “in the attitudes of
indignation and contempt with which everyone views the hangman, who is, to be sure, an
innocent executor of the public will.”
787
Lawyers—who keep executioners in business—
would be well advised to take a cue from what is already happening in the medical
profession. Physicians—who once played prominent roles at executions, standing by to
pronounce the hour and minute of an inmate’s death—now regularly refuse to
participate.
788
Following the Hippocratic Oath,
789
the American Medical Association
considers it an ethical violation for doctors to take part in these rituals.
790
How long, one
wonders, will it take for judges and lawyers to follow suit? Why, after all, should
members of the bar have to advocate that other human beings die as part of their jobs?
¶163 In the eighteenth century, the death penalty was often used in place of
imprisonment—and to prevent anarchy or revolution. Whatever rationales existed in
784
CHENWI, supra note 406, at 146 (reprinting affidavit of the Commissioner General of Prisons in
Uganda).
785
See Donald Cabana, Foreword in ROBERT M. BOHM, DEATHQUEST: AN INTRODUCTION TO THE THEORY
AND
PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES, at v (1999) (a former southern warden
describes his haunting experience in overseeing executions); Jim Avila, Mary Harris & Chris Francescani,
Interview with an Executioner, ABC News, Dec. 17, 2007 (the former executioner for Virginia discusses
his opposition to capital punishment), available at
http://abcnews.go.com/TheLaw/story?id=4015348&page=1.
786
See Jeanne Woodford, Death Row Realism, L.A. TIMES, Oct. 2, 2008, available at
http://www.latimes.com/news/opinion/la-oe-woodford2-2008oct02,0,4155306.story.
787
BECCARIA (Thomas ed.), supra note 1, at 56.
788
David Waisel, Physician Participation in Capital Punishment, 270 JAMA 365, 365 (1993).
789
LUDWIG EDELSTEIN, THE HIPPOCRATIC OATH 3 (1943) (“I will not give a drug that is deadly to anyone .
. . nor will I suggest the way to such a counsel.”).
790
See Michael K. Gottlieb, Executions and Torture: The Consequences of Overriding Professional Ethics,
6 Y
ALE J. HEALTH POL’Y, L. & ETHICS 351, 366 n.71 (2006). The Council on Ethical and Judicial Affairs
of the American Medical Association has also stated that physicians should not try to treat a person for the
purpose of restoring that person’s competency once he or she has been declared incompetent to be
executed. A
M. MED. ASS’N, CURRENT OPINIONS WITH ANNOTATIONS OF THE COUNCIL ON ETHICAL AND
JUDICIAL AFFAIRS, E-2.06 CAPITAL PUNISHMENT (2001); AM. MED. ASS’N, CURRENT OPINIONS WITH
ANNOTATIONS OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, E-2.06 CAPITAL PUNISHMENT (2000).
The American Psychological Association, the American Psychiatric Association, the American Nursing
Association, the National Association of Emergency Medical Technicians, and the World Medical
Association also prohibit participation in executions. See Michael K. Gottlieb, Executions and Torture:
The Consequences of Overriding Professional Ethics, 6 Y
ALE J. HEALTH POL’Y, L. & ETHICS 351, 366 &
n.71 (2006); Baze, 128 S. Ct. at 1566 (Breyer, J., concurring); id. at 1539 (Alito, J., concurring).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
300
Beccaria’s day for the death penalty’s use, however, no longer apply in the modern era.
In Beccaria’s time, well-developed prison systems to incarcerate criminals for long
periods of time did not exist.
791
In contrast, the United States now has multiple
maximum-security prisons capable of housing murderers, terrorists and other violent
offenders. Likewise, whereas political instability and revolutions were extremely
common in the eighteenth century, the United States is now a stable, well-developed
democracy, the exact opposite of a country at risk of falling into a state of anarchy. Thus,
executions are unnecessary and unwarranted in this day and age—a time in which we all
share a heightened awareness of the concepts of human dignity and human rights.
C. The Composition of America’s Death Rows
¶164 The heinous crimes committed by the occupants of America’s death rows—
comprised mostly of men who grew up learning that violence and abuse was the way to
solve problems
792
—are unspeakable. These murderers have, in cold blood, killed another
human being, sometimes more than one. And the manner in which they have done so—
with semi-automatic assault rifles or sawed-off shotguns, with switchblades or scissors,
with rat poison or their own bare hands—never ceases to shock and offend our collective
sensibilities and humanity.
793
One need only read judicial opinions in homicide cases—
in particular, the portions recounting the facts of brutal, cold-blooded murders—to know
the horror of any murder.
¶165 The people we execute are killers, to be sure—sometimes even grisly serial killers
whose horrendous crimes have claimed multiple lives.
794
But convicted murderers are
791
See Laura I. Appleman, Retributive Justice and Hidden Sentencing, 68 OHIO ST. L.J. 1307, 1344–45
(2007) (“The American penitentiary system began to take shape in the mid-eighteenth century, continuing
its transformation throughout the nineteenth century.”); James J. Willis, Transportation Versus
Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State, 39 LAW
& SOC’Y REV. 171, 177 (2005) (“In the eighteenth century, prisons . . . had generally been used as a means
to confine debtors, those awaiting trial, and felons awaiting the execution of their sentence.”).
792
JONATHAN H. PINCUS, BASE INSTINCTS: WHAT MAKES KILLERS KILL? 19 (2001); RICHARD RHODES,
WHY THEY KILL: THE DISCOVERIES OF A MAVERICK CRIMINOLOGIST 109–40 (1999) (discussing the
abusive backgrounds of many killers).
793
See, e.g., Peterson v. Polk, No. 1:03CV00651, 2007 WL 1232076, at *1–2 (M.D. N.C. Apr. 26, 2007)
(defendant sentenced to death after murdering a 67-year-old woman with a Chinese SKS semi-automatic
assault rifle during a robbery that netted $69.00); People v. Thompson, 853 N.E.2d 378, 382 (Ill. 2006)
(noting that defendant went on a “shooting spree” with a sawed-off shotgun, first killing a police officer
then two neighbors in front of their 10-year-old daughter); Simpson v. Polk, No. 04-3, 2005 WL 928554,
at*10 (4th Cir. 2005) (noting that the aggravating evidence leading to the imposition of the defendant’s
death sentence included strangling a 92-year-old reverend with the defendant’s bare hands while
demanding money, tying belts around the reverend’s neck, and then beating him over the head with a glass
bottle until it broke); Ex parte Graves, 70 S.W.3d 103, 105 n.3 (Tex. Ct. Crim. App. 2002) (reporting
testimony at capital trial that death row inmate’s switchblade matched the victims’ wounds); Fyre v. Lee,
235 F.3d 897 (4th Cir. 2000) (defendant killed his seventy-year-old landlord by repeatedly ramming a pair
of scissors into the neck and chest of his victim); Harjo v. State, 882 P.2d 1067, 1078 (Okla. Ct. Crim. App.
1994) (defendant strangled and suffocated a woman with his bare hands, crushing her windpipe); Barfield
v. Harris, 540 F. Supp. 451, 460 (E.D. N.C. 1982) (defendant poisoned her boyfriend by placing arsenic-
laden rat poison in his beer and tea, causing a slow and painful death).
794
Studies show stronger support for the execution of serial killers than for other murderers. See Alex
Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 C
ASE W. RES. L. REV. 1, 32 n.141
(1995). It is equally clear, however, that not all serial killers end up being executed. See Rachel King, No
Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death
Row Prisoners, 16 B.U.
PUB. INT. L.J. 195, 228 (2007).
Vol. 4:2] John D. Bessler
301
also deeply troubled people who have often suffered unspeakable acts of child abuse
795
—
horrific abuse that is well-documented.
796
Those who end up on death row have so
frequently suffered severe physical or sexual abuse
797
that the profound abuse found in
the ranks of death row inmates almost qualifies as a cliché.
798
One study of fourteen
juveniles on death row found twelve had been “brutally” abused and five had been
sodomized by older family members.
799
Frontal lobe dysfunction and other disorders are
common, with clinicians routinely identifying child abuse and traumatic brain injuries.
800
Once studied, the disturbing backgrounds of death row inmates give added force to the
memorable lines of the poet W. H. Auden: I and the public know / What all
schoolchildren learn / Those to whom evil is done / Do evil in return.
801
¶166 Indeed, as a class, killers are often drug addicts and alcoholics,
802
poor and mostly
uneducated,
803
and often suffer from head injuries and brain damage.
804
Many are
795
Blume, supra note 748, at 963, 989–95 (noting instances of childhood abuse among death row inmates
who “volunteered” to be executed).
796
Phyllis L. Crocker, Childhood Abuse and Adult Murder: Implications for the Death Penalty, 77 N.C. L.
REV. 1143, 1166–67 (1999).
797
See Wiggins v. Smith, 539 U.S. 510, 516–17 (2003) (Mr. Wiggins suffered “severe physical and sexual
abuse . . . at the hands of his mother and while in the care of a series of foster parents,” including neglect,
starvation, and reported rapes); Penry v. Lynaugh, 492 U.S. 302, 309 (1989) (“Penry's mother testified at
trial that Penry was unable to learn in school and never finished the first grade. Penry's sister testified that
their mother had frequently beaten him over the head with a belt when he was a child. Penry was also
routinely locked in his room without access to a toilet for long periods of time.”); State v. Lynch, 787
N.E.2d 1185 (Ohio 2003) (death row inmate was raised by an illiterate mother who paid little attention to
his well-being, was sexually abused by a teacher and a man he was sent to live with, was raped by a passing
motorist who gave him a ride, and dropped out of school around the ninth grade); Laurie T. Izutsu,
Applying Atkins v. Virginia to Capital Defendants with Severe Mental Illness, 70 B
ROOK. L. REV. 995,
1031–33 (2005) (discussing the case of Charles Walker, a paranoid schizophrenic whose mother whipped
him with electrical cords and a dog leash, denied him food, and burned his penis with an iron).
798
PINCUS, supra note 792, at 67–68 (“The frequent and prolonged history of physical and sexual abuse
committed by a parent or parent substitute has been pervasive and extreme among the 150 or so murderers I
have seen.”); see also Dorothy Otnow Lewis, Jonathan H. Pincus, Marilyn Feldman, Lori Jackson &
Barbara Bard, Psychiatric, Neurological, and Psychoeducational Characteristics of 15 Death Row Inmates
in the United States, 143 A
M. J. PSYCHIATRY 838 (1986).
799
Mirah A. Horowitz, Kids Who Kill: A Critique of How the American Legal System Deals with Juveniles
Who Commit Homicide, 63 L
AW & CONTEMP. PROBS. 133, 157 (2000); see also id. (“Looking outside the
small sample of juvenile death row inmates, fifty-five percent of the homicidally aggressive children
studied had been physically abused.”).
800
Richard E. Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-
First Century, 56 A
M. U. L. REV. 51, 63–64 (2006).
801
See Melanie L. Williams, Then and Now: The Natural/Positivist Nexus at War: Auden’s ‘September 1,
1939, 31 J.
L. & SOCIETY 60, 61 (2004).
802
PINCUS, supra note 792, at 84–85; Blume, supra note 748, at 963, 989–95 (noting instances of alcohol
and drug abuse among death row inmates who “volunteered” to be executed); James R. Edmunds,
Nonconsensual U.S. Military Action Against the Columbian Drug Lords Under the U.N. Charter, 68
WASH. U. L.Q. 129, 130 (1990); see also Correll v. Ryan, 539 F.3d 938, 952 (9th Cir. 2008) (noting that
Correll was using alcohol and a variety of drugs by age twelve, possibly as self-medication for mental
illnesses that were undiagnosed until his imprisonment).
803
Smith & Starns, supra note 748, at 68–69 (noting that less than ten percent of Mississippi death row
inmates had graduated from high school, that the IQ scores of those death row inmates were well below
average, that eighty-four percent fell below the seventh-grade level and that more than half scored at or
below the fourth-grade level, and that twenty-seven percent of the inmates’ scores fell within the range of
mental retardation).
804
Blume, supra note 748, at 963, 989–95 (noting instances of brain damage and brain tumors among death
row inmates who “volunteered” to be executed); Lewis et al., supra note 798, at 838–45 (finding severe
head injuries, most suffered in early childhood or during adolescence, for all fifteen death row inmates
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
302
mentally retarded,
805
homeless,
806
illiterate,
807
exhibit suicidal tendencies,
808
have
profound depression or suffer from debilitating diseases like paranoid schizophrenia,
809
examined). Brain injuries are common, especially among death row inmates. Richard E. Redding, The
Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 A
M. U. L.
REV. 51, 57 (2006) (“neuropsychological studies show that the prevalence rate of brain dysfunction among
criminal populations is extremely high, with prevalence rates of ninety-four percent among homicide
offenders” and “[c]linical evaluations of death row inmates . . . reveal that many have a history of head
injury and serious neuropsychological deficits”).
A sampling of the horrific childhoods of death row inmates demonstrates the severe head traumas and
long odds against normalcy these inmates faced as children. See Correll, 539 F.3d at 952 (noting that
convicted murderer Michael Correll “endured an abusive childhood,” with evidence of incest in the family,
the neglect of his “basic needs” as a child, and further emphasizing that, at age seven, “a brick wall
collapsed on his head,” rendering him unconscious though “his parents did not seek medical treatment until
several days later when he was still not back to normal;” in the case “[s]everal experts testified that this
type of accident and the symptoms Correll exhibited then and now indicate a high likelihood of brain
impairment”); Haliym v. Mitchell, 492 F.3d 680, 712–14 (6th Cir. 2007) (finding ineffective assistance of
counsel where “attorneys were on notice that Petitioner had shot himself in the left temple, which should
have strongly suggested the need to investigate whether Petitioner had a mental defect;” the court also
noted that the petitioner experimented with heroin after his father died of a heroin overdose and that
“Petitioner grew up in a deeply troubled home”).
805
See Carol S. Steiker, Things Fall Apart, But the Center Holds: The Supreme Court and the Death
Penalty, 77 N.Y.U.
L. REV. 1475, 1478 (2002) (noting that while the precise number of death row inmates
with mental retardation is unknown, “it may well be substantial—more appropriately measured in hundreds
rather than dozens”); Timothy S. Hall, Legal Fictions and Moral Reasoning: Capital Punishment and the
Mentally Retarded Defendant After Penry v. Johnson, 35 A
KRON L. REV. 327, 327 (2002) (“Estimates of
the incidence of mental retardation in America’s death row population range from 4% to as high as 20%.”);
Smith & Starns, supra note 748, at 70 n.92 (estimates of the number of mentally retarded inmates on
Georgia’s death row ranged as high as thirty percent after Georgia passed its law barring the execution of
the mentally retarded). Although Atkins made it unconstitutional to execute the mentally retarded, many
death row inmates may still have practical difficulties actually proving their retardation through established
procedures. See Application of Constitutional Rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242,
153 L. Ed. 2d 335 (2002), that Execution of Mentally Retarded Persons Constitutes “Cruel and Unusual
Punishment” in Violation of Eighth Amendment, 122 A.L.R.5th 145 (2004).
806
See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003); Williams v. Quarterman, 2008 WL 4280315, at
*5 (5th Cir. 2008); Kemp v. Schriro, 2008 WL 4183379, at *1 (D. Ariz. 2008); Council v. State, 2008 WL
4111335, at *6 (S.C. 2008); Powell v. Warden of the Sussex I Prison, 2005 WL 2980756, at *22 (Va.
2005); People v. Lewis, 22 P.3d 392, 436 (Cal. 2001); State v. Greene, 967 P.2d 106, 114 (Ariz. 1998).
807
See, e.g., State v. Sonnier, 380 So. 2d 1, 9–10 (La. 1979); Neal v. State, 525 So.2d 1279, 1285 (Miss.
1987) (Hawkins, J., dissenting); Jones v. State, 707 P.2d 1128, 1130 (Nev. 1995); State v. Hill, 2008 WL
2719570, at *1 (Ohio. App. 2008); Commonwealth v. Whitney, 412 A.2d 1152, 1157 (Pa. 1986); Westley
v. State, 754 S.W.2d 224, 227 & n.1 (Tex. Cr. App. 1988).
808
See, e.g., Sims v. Brown, 425 F.3d 560, 583 (9th Cir. 2005); State v. Boggs, 185 P.3d 111, 128 (Ariz.
2008); see also Karl S. Myers, Practical Lackey: The Impact of Holding Execution After a Long Stay on
Death Row Unconstitutional Under Lackey v. Texas, 106 D
ICK. L. REV. 647, 648 & n.13 (2002) (citing
Knight v. Florida, 528 U.S. 990, 995 (1999) (Breyer, J., dissenting)) (referencing a Florida study showing
that thirty-five percent of inmates confined on death row attempted suicide and forty-two percent
considered suicide).
809
See Izutsu, supra note 797, at 996, 1008, 1028–29, 1032–33; Mark D. Cunningham & Mark P. Vigen,
Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature, 20
B
EHAV. SCI. & L. 191, 193, 200 (2002) (noting that the incidence of schizophrenia among death row
inmates is at least five percent and perhaps higher); see also P
INCUS, supra note 792, at 209; Blume, supra
note 748, at 963, 989–95; Smith & Starns, supra note 748, at 75 (noting that forty-three percent of
Mississippi death row inmates suffer from clinical depression). It has been estimated that up to seventy
percent of death row inmates suffer from some form of schizophrenia or psychosis. See Drinan, supra note
777, at 302. For example, in Ake, the defendant’s initial psychiatric report concluded that “Ake appears to
be frankly delusional” and “a probable paranoid schizophrenic,” adding that “[h]e claims to be the ‘sword
of vengeance’ of the Lord and that he will sit at the left hand of God in heaven.” Ake v. Oklahoma, 470
U.S. 68, 71 (1985). Another, more recent Supreme Court case, Panetti v. Quarterman, also dealt with a
capital defendant who had been hospitalized over a dozen times in various institutions for schizophrenia,
Vol. 4:2] John D. Bessler
303
Post-Traumatic Stress Disorder (PTSD)
810
or other severe mental illnesses.
811
Given their
backgrounds, perhaps it should come as no surprise that many death row inmates engage
in violent behavior or even go insane.
812
¶167 Many death row inmates, in the depths of despair and having previously attempted
to kill themselves, formally abandon their appeals and “volunteer” to die, leading to a
bizarre form of state-assisted suicide.
813
One man, David Rice, was actually sentenced to
schizoaffective disorder, bipolar disorder, depression, psychosis, and bizarre delusions and hallucinations.
127 S. Ct. 2842, 2848 (2007); see also Drinan, supra note 777, at 300. Panetti chose to represent himself at
trial—a trial in which he wore a cowboy outfit and attempted to subpoena John F. Kennedy, the Pope, and
Jesus Christ. Lauren E. Perry, Hiding Behind Precedent: Why Panetti v. Quarterman Will Create
Confusion for Incompetent Death Row Inmates, 86 N.C.
L. REV. 1068, 1068 (2008). In Panetti, the
Supreme Court—invoking the Eighth Amendment—held that the prisoner’s documented delusions should
have been considered in determining whether he was competent to be executed. 127 S. Ct. at 2847, 2860,
2862.
810
See, e.g., Ringo v. Roper, 472 F.3d 1001, 1003 (8th Cir. 2007); Sims v. Brown, 425 F.3d 560, 583 n.15
(9th Cir. 2005); Funchess v. Wainwright, 788 F.2d 1443, 1445 (11th Cir. 1986); Ben-Sholom v. Ayers,
2008 WL 2745460, at *64 (E.D. Cal. 2008); State v. Boggs, 185 P.3d 111, 129 (Ariz. 2008); State v.
Stojetz, 705 N.E.2d 329, 471 (Ohio 1999); see also Blume, supra note 748, at 963, 989–95. PTSD is often
associated with combat. See People v. Weaver, 29 P.3d 103, 139–41 (Cal. 2001).
811
Blume, supra note 748, at 963, 989–95 (noting that execution “volunteers” sometimes suffer from
pedophilia, bipolar disorder or personality disorder, including multiple personality disorder); see also
Lewis et al., supra note 798, at 840 (finding evidence of delusions and hallucinations among adult death
row inmates). More than half of all prisoners and jail inmates have mental health problems. See Paula
Shapiro, Are We Executing Mentally Incompetent Inmates Because They Volunteer to Die?: A Look at
Various States’ Implementation of Standards of Competency to Waive Post-Conviction Review, 57 C
ATH.
U. L. REV. 567, 567 & n.1 (2008) (citing DORIS J. JAMES & LAUREN E. GLAZE, U.S. DEP’T OF JUSTICE,
BUREAU OF JUSTICE STATISTICS, MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES 1 (2006)); cf.
Kelly A. Gabos, The Perils of Singleton v. Norris: Ethics and Beyond, 32 A
M. J.L. & MED. 117, 119 (2006)
(“A 1999 Department of Justice report found that 16% of all inmates in state and federal prisons,
approximately 283,000 inmates total, were afflicted with schizophrenia, bipolar disorder, major depression,
or some severe mental illness.”).
812
Compare Liliana Lyra Jubilut, Death Penalty and Mental Illness: The Challenge of Reconciling Human
Rights, Criminal Law, and Psychiatric Standards, 6 S
EATTLE J. FOR SOC. JUST. 353, 367 (2007) (“The most
conservative studies find that up to ten percent of inmates on death row suffer from serious mental illness.
However, other studies suggest that the proportion of prisoners on death row who have been treated for
some kind of psychiatric disorder can be as high as one-third.”) with Gabos, supra note 811, at 119 (a 2003
British Broadcasting Company study reported that ten percent of America’s death row inmates are mentally
ill). As many as half of all death row inmates reportedly suffer from intermittent insanity. Smith & Starns,
supra note 748, at 75; Barua, supra note 592, at 4 (citing American Civil Liberties Union, Mental Illness
and the Death Penalty in the United States (2005),
http://www.aclu.org/capital/mentalillness/10617pub20050131.html (last visited Aug. 31, 2009)).
The problems faced by mentally ill criminal defendants at trial are especially acute. Although mental
illness is properly considered a “mitigating” factor in capital litigation, the Capital Jury Project found that
many jurors—equating mental illness with future dangerousness—actually view mental illness as an
“aggravating” factor in sentencing proceedings. See Ronald J. Tabak, Overview of the Task Force
Proposal on Mental Disability and the Death Penalty, 54 C
ATH. U. L. REV. 1123, 1128–29 (2005). Despite
the pitfalls associated with such evidence, capital defense counsel—and trained mitigation specialists—are
becoming much more sophisticated in terms of presenting mental health evidence. See generally Sean D.
O’Brian, When Life Depends on It: Supplementary Guidelines for the Mitigation Function of Defense
Teams in Death Penalty Cases, 36 H
OFSTRA L. REV. 693 (2008).
813
Blume, supra note 748, at 963, 989–95. Since 1976, 123 death-row inmates—commonly referred to as
“volunteers”—have waived their right to post-conviction review of their sentences. See Shapiro, supra
note 811, at 567. “Volunteers,” who either refuse to present mitigating evidence at trial or waive their post-
conviction appeals, suffer from a wide array of mental illnesses and substance abuse disorders. See Kristen
M. Dama, Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death
Row Inmates from Volunteering to Be Put to Death, 9 U.
PA. J. CONST. L. 1083, 1083 (2007); Blume, supra
note 748, at apps. A-B (listing 106 death-row inmates executed between 1973 and 2003 along with known
mental illnesses and substance abuse problems, and finding that 93 of those “volunteers” had at least one
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
304
death in absentia—that is, not in the jury’s presence—after he ingested a nicotine drink
brewed from cigarettes and had to be hospitalized.
814
In other cases, intermittently insane
death-row inmates are forcibly medicated solely for the purpose of making them mentally
competent to be executed.
815
That is precisely what happened in 2003 when the Eighth
Circuit, on a closely divided, six-to-five vote, approved the forcible medication and
execution of Charles Singleton.
816
¶168 The personal histories of death row inmates stand in sharp contrast with the
backgrounds of the Supreme Court Justices who sit in judgment in capital cases. The
nine Justices were educated at renowned institutions of higher education, with Ivy
League schools and diplomas galore. They received undergraduate degrees at Harvard
College, Princeton University, Stanford University, Cornell University, Georgetown
University, Holy Cross College, and The University of Chicago. They studied overseas
at the London School of Economics, Oxford University, and the University of Fribourg in
Switzerland. They earned law degrees from Harvard Law School, Yale Law School,
Columbia Law School, and Northwestern University. Before joining the nation’s highest
court, they worked as judicial clerks, as corporate counsel, at major law firms or as law
professors, and as high-level officials serving the U.S. Department of Justice, the U.S.
Courts of Appeals, and the President.
817
¶169 It seems incongruous that judges with such respected pedigrees should spend their
days donning black robes and deciding whether poor, overwhelmingly uneducated
inmates, should live or die.
818
Isn’t there something terribly amiss when such highly
mental illness or substance abuse disorder).
814
Rice v. Wood, 77 F.3d 1138, 1139, 1140 (9th Cir. 1996). On appeal before the U.S. Court of Appeals
for the Ninth Circuit, a group of dissenting judges in the case strongly criticized what had been permitted to
happen, noting that “[t]he pronouncement of the death sentence is the most solemn moment in the lives of
both the jurors and the defendant; to say that the person facing death has no connection to the people and
proceedings charged with deciding his fate is to say that we are no longer human. . . . The majority’s ruling
in this case is the ultimate triumph of procedure over substance: the person is now irrelevant to the process.
This is the nightmare world of The Trial; it is not American justice. Like Josef K, David Lewis Rice was
sentenced to death in absentia, and, like Josef K, Rice will go to his grave asking, ‘Where is the judge
whom I have never seen?’” Id. at 1140, 1150 (Nelson, J., dissenting) (citing F
RANZ KAFKA, DER PROZESS
194 (1935)).
815
See Angela M. Kimber, Psychotic Journeys of the Green Mile, 22 T.M. COOLEY L. REV. 27, 27–28 &
n.11 (2005); see also Staley v. State, 233 S.W.3d 337 (Tex. Ct. Crim. App. 2007).
816
Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), cert. denied, 540 U.S. 832 (2003). The inmate,
Charles Singleton, was diagnosed as a schizophrenic during his lengthy incarceration and, left
unmedicated, suffered from delusions, hallucinations and engaged in self-mutilation. See Michael K.
Gottlieb, Executions and Torture: The Consequences of Overriding Professional Ethics, 6 Y
ALE J. HEALTH
POL’Y, L. & ETHICS 351, 358–59, 362 (2006). Judge Gerald Heaney dissented in Singleton, arguing that
the execution of a man “who is severely deranged without treatment, and arguably incompetent when
treated, is the pinnacle of what Justice Marshall called ‘the barbarity of exacting mindless vengeance.’”
Singleton, 319 F.3d at 1030 (Heaney, J., dissenting).
817
See Supreme Court of the United States, The Justices of the Supreme Court,
http://www.supremecourtus.gov/about/biographiescurrent.pdf (last visited Aug. 31, 2009).
818
The members of the Supreme Court spend much of their time dealing with capital cases. See Michael
Mello, “In the Years When Murder Wore the Mask of Law”: Diary of a Capital Appeals Lawyer (1983-
1986), 24 V
T. L. REV. 583, 624 (2000) (“I did not really appreciate the massive amount of time the
Supreme Court Justices and their staff devote to death penalty cases before I worked through the 567
cartons of raw materials in the Thurgood Marshall papers.”); see also Judge Arthur L. Alarcón, Remedies
for California’s Death Row Deadlock, 80 S.
CAL. L. REV. 697, 715 (2007) (noting that the California
Supreme Court spends about twenty percent of its time on capital cases); John M. Richardson, Reforming
the Jury Override: Protecting Capital Defendants’ Rights by Returning to the System’s Original Purpose,
94 J.
CRIM. L. & CRIMINOLOGY 455, 467 (2004) (noting that the Florida Supreme Court spends about half
Vol. 4:2] John D. Bessler
305
educated people spend their time parsing the lexicon of death, arguing over “special
issues” and “aggravating” and “mitigating” factors,
819
as human lives—already shattered
by abuse and poverty and prison life—literally hang in the balance? It goes without
saying that murderers are sick people who have committed horrific acts. After all, if not
for severe mental illness, why would they have acted the way they have? When our most
respected figures, our governors and our state and federal judges, execute death warrants
or cause the death penalty to be carried out, what does that say about our culture and
society?
820
And what does it say about our legal culture when four Supreme Court
Justices—the number necessary for a grant of certiorari—agree to hear a death penalty
case, only to have the execution go forward anyway because a fifth vote cannot be
mustered to impose a stay until the appeal can be heard?
821
¶170 The use of the death penalty raises all kinds of moral and ethical questions. Should
we derive any satisfaction from the fact that deranged people—and no doubt a few
innocent ones—are being put to death on our behalf?
822
Or should we take any solace in
of its time on death penalty cases).
819
See, e.g., Tex. Code Crim. Proc. Ann. art. 37.071 (1965); Ayers v. Belmontes, 549 U.S. 7 (2006)
(holding in a capital case that a “factor (k) instruction” under California’s death penalty law is consistent
with the constitutional right to present mitigating evidence). In one recent case, the Supreme Court decided
that a Kansas law, providing that a death sentence was to be imposed if a unanimous jury found that
“aggravating circumstances” are not outweighed by “mitigating circumstances,” or are in “equipoise,” was
constitutional. See Kansas v. Marsh, 548 U.S. 163, 179–80 (2006). In other cases, jurors are struck from
jury service as “Witherspoon-excludables,” when what is really happening, to use plain English, is that
capital punishment opponents are being sent home, told they cannot participate and exercise their civic
duties because of their anti-death penalty views. See Dean A. Strang, The Rhetoric of Death, 1998 W
IS. L.
REV. 841, 855 (1998).
One of the more striking features of judicial opinions in death penalty cases is the tendency of judges to
refer to condemned inmates by three names instead of two. Bob Harris becomes Robert Alton Harris; Dave
Spence becomes David Wayne Spence; and Karla Tucker becomes Karla Faye Tucker. Id. at 845–46. By
adding the middle name and graphically describing the crime—by creating a category of the other—judges
no doubt aim to put some emotional distance between themselves and those who will be executed as a
result of their orders. But make no mistake: in the realm of the death penalty, pen strokes cause deaths to
occur just as surely as knives and guns do at murder scenes.
Judicial talk of “finality” only masks the reality that human beings—including eyewitnesses and judges
and jurors—inevitably make mistakes, mistakes that cannot be corrected once an execution occurs. See id.
at 848. To speak of “finality” in the context of a death penalty case—as if the law were a branch of science
or mathematics like physics or calculus—is to suggest that the definitive answer has been found and can be
relied upon for all time. Of course, we know that nothing could be further from the truth. People make
mistakes; they often err or exercise poor judgment; sometimes they even lie. The law is not a function of
number-crunching and it is rarely subject to proofs that are one hundred percent verifiable; instead, the
criminal justice system is administered by fallible human beings and there is—as in public opinion polls—a
margin of error.
820
The lex talionis doctrine, if followed to a tee, would require barbaric punishments—tortuous
punishments the Supreme Court has already barred under the Eighth Amendment. The doctrine also has
obvious practical limitations. It is impossible to kill multiple murderers more than once, and no system of
punishment can always inflict exactly the same harm done to the victim. See BECCARIA (Bellamy ed.),
supra note 1, at xxii (“It is unclear, for instance, what form of punishment it decrees for a toothless person
who has knocked out someone else’s teeth.”). As a contemporary society, we certainly do not tolerate the
raping of rapists or the maiming of those who have maimed others. Why then does society still tolerate the
killing of killers?
821
See Strang, supra note 819, at 849 n.20. This happened in the case of a Texas death row inmate who
had a long history of mental illness and who was once acquitted by reason of insanity on a Florida robbery
charge. Id. Four Supreme Justices had agreed to review the case on the basis of a petition from the
inmate’s mother, but a fifth vote for a stay could not be obtained and the inmate was executed before a
decision could be reached. Id.
822
More than sixty people diagnosed as mentally ill or mentally retarded have been executed in the United
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
306
the fact that we, in executing inmates, are stooping to the level of the killers themselves?
And what about the stigma and pain society inflicts on the families of those we
execute?
823
¶171 Just as homicides inflict untold suffering on murder victims’ families, the family
members of death row inmates experience grief and anguish after an execution. In fact,
relatives and friends of death row inmates—stigmatized and depressed by executions—
are known to have committed suicide after executions.
824
Given the mental distress
caused by executions, perhaps it’s time to ponder again the eighteenth-century words of
Dr. James McHenry, a close friend of Dr. Benjamin Rush, who once said this in urging
mercy for Pennsylvania mutineers: “Our national character can never be supported by a
sacrifice of national humanity. I have always thought, and the history of all nations teach
me that I am right that acts of mercy serve more to dignify and raise the character of a
government than acts of blood.”
825
D. The Road to Abolition
¶172 The last chapter of the abolition movement has yet to be written. Even after the
Supreme Court’s approval of lethal injection in Baze, the Eighth Amendment may yet
prove instrumental in future challenges to the death penalty. If enough states were to do
away with capital punishment, the Supreme Court could conceivably strike down the
death penalty altogether—just as it has for certain categories of offenders, such as
juveniles, the mentally retarded, those who did not take life, and the insane.
826
Likewise,
if American juries routinely stopped imposing death sentences, leaving just a small
number of people sentenced to death each year, the Supreme Court might declare the
death penalty unconstitutional because of how rarely it is inflicted.
827
Given that the
federal government and thirty-five states still have death penalty laws—and that death
States since 1983. Barua, supra note 592, at 4; see also John E. Theuman, Propriety of Carrying Out
Death Sentences Against Mentally Ill Individuals, 111 A.L.R. 491 (2003). In 2000, the U.N. Commission
on Human Rights asked all countries that still use the death penalty “not to impose it on a person suffering
from any form of mental disorder; not to execute any such person.” Amnesty International, The Death
Penalty Disregards Mental Illness (2006), available at http://amnestyusa.org/abolish/mental_illness.html.
823
See ELIZABETH BECK, SARAH BRITTO & ARLENE ANDREWS, IN THE SHADOW OF DEATH: RESTORATIVE
JUSTICE AND DEATH ROW FAMILIES (2007) (discussing the effect of executions on the families of
condemned inmates); see also King, supra note 794, at 208–18 (same).
824
See Jane L. McClellan, Stopping the Rush to the Death House: Third-Party Standing in Death-Row
Volunteer Cases, 26 A
RIZ. ST. L.J. 201, 220 (1994).
825
STEINER, supra note 235, at 357–58 (italics in original). As McHenry argued: “If a soldier falls in
battle—if an honest man is killed by a robber, or murdered by his enemy, this neither injures his fame, or
reflects dishonor on his relations. But the case is far otherwise if he dies under the hands of the law or the
executioner. His memory thenceforward is rendered infamous, and to be his relation or to bear his name, is
to carry out a mark of indelible disgrace.” Id.
826
Solem, 463 U.S. at 299–300. Already, a number of states have death penalty laws on the books but
hardly ever use those statutes. Indeed, it is former Confederate states, plus former border states like
Kentucky and Missouri, that account for the bulk of executions in the post-Furman era. Notably, these
southern states were also the jurisdictions that most frequently witnessed lynchings. F
RANKLIN ZIMRING,
THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 89–118 (2003).
827
The Supreme Court recently emphasized that “[c]apital defendants have the right to be sentenced by an
impartial jury,” stating that “those whose scruples against the death penalty would not substantially impair
the performance of their duties” cannot be excluded from capital juries. Uttecht v. Brown, 127 S. Ct. 2218,
2231 (2007). Yet, by continuing to allow “death-qualified” juries, the Supreme Court in effect routinely
excludes jurors who are otherwise qualified to serve—but who, quite rationally and for a whole host of
reasons, find capital punishment morally wrong or objectionable for pragmatic reasons.
Vol. 4:2] John D. Bessler
307
sentences are still being handed down, if only sporadically—it seems unlikely that a
categorical ruling to that effect will be made anytime soon. But the future is hard to
predict, and it is certainly within the realm of possibility that the nation’s highest court
will once again take up the issue of the death penalty’s constitutionality.
828
¶173 Some argue that the U.S. Constitution’s text precludes the Supreme Court from
ever declaring the death penalty unconstitutional.
829
They argue that the Framers clearly
contemplated the infliction of death as a punishment, as reflected in the language of the
Bill of Rights.
830
In particular, they cite the Constitution’s use of the words “capital,”
“life,” and “life or limb,”
831
saying those words lead to the inexorable conclusion that the
death penalty itself is constitutional.
832
¶174 Though some Founders, like Dr. Benjamin Rush, categorically opposed capital
punishment, it is certainly true that in the late eighteenth century the death penalty was
widely accepted in American life as a punishment for murder.
833
However, people in the
founding era also envisioned punishing people by cutting off ears and limbs—something
no one today would argue is constitutionally permissible.
834
If the state can no longer cut
828
Any number of issues, such as the execution of the mentally ill or the risk of executing the innocent,
might eventually come before the Supreme Court. Thus far, lower courts have declined to extend the
Atkins prohibition on the execution of the mentally retarded to individuals suffering from mental illness.
E.g., Commonwealth v. Baumhammers, 960 A.2d 59 (Pa. 2008); Powers v. State, 992 So.2d 218 (Fla.
2008); State v. Hancock, 840 N.E.2d 1032 (Ohio 2006). Lower courts have also rejected challenges to the
death penalty’s constitutionality based solely on the risk of executing the innocent. See, e.g., United States
v. Sampson, 486 F.3d 13 (1st Cir. 2007); United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002).
829
See Bentele, supra note 50, at 280–81 & nn. 178–79 (citing U.S. CONST., amend. V; Walton v. Arizona,
497 U.S. 639, 669–71 (1990) (Scalia, J., concurring); Gregg, 428 U.S. at 177–78 (plurality opinion)); see
also Callins v. Collins, 510 U.S. 1141, 1141 (Scalia, J., concurring).
830
The Fifth Amendment states that “[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.
CONST., amend. V. It also
states: “nor shall any person be subject to the same offence to be twice put in jeopardy of life or limb,” “nor
be deprived of life, liberty, or property, without due process of law.” Id. The Fourteenth Amendment also
provides that “nor shall any State deprive any person of life, liberty, or property, without due process of
law.” U.S.
CONST., amend. XIV, § 1.
831
“Life or limb” was a phrase familiar to the Founding Fathers. See Hon. Stephen N. Limbaugh, Jr., The
Case of Ex Parte Lange (or How the Double Jeopardy Clause Lost Its “Life or Limb”), 36 A
M. CRIM. L.
REV. 53, 53 (1999).
Both Thomas Jefferson and John Adams used this phrase in their correspondence. Letter from Thomas
Jefferson to George Wythe (Nov. 1, 1778), in 1 M
EMOIR, CORRESPONDENCE, AND MISCELLANIES: THE
PAPERS OF THOMAS JEFFERSON 119, at 121 (Thomas Jefferson Randolph ed., 1829); Letter from John
Adams to Dr. J. Morse (Dec. 2, 1815), in 10 T
HE WORKS OF JOHN ADAMS 185 (1856). Jefferson also used
the phrase “life or limb” in his bill to make punishments in Virginia more proportionate to criminal
offenses. See 2
THE WORKS OF THOMAS JEFFERSON, supra note 107, at 395.
Today, the phrase “life or limb” is still found in several state constitutional or statutory provisions. It is
typically found in the non-capital context to denote serious bodily harm or death in connection with
workplace hazards. See Justin W. Curtis, The Meaning of Life (or Limb): An Originalist Proposal for
Double Jeopardy Reform, 41 U.
RICH. L. REV. 991, 1020 n.205 (2007).
832
See Baze, 128 S. Ct. at 1552 (Scalia, J., concurring) (citing U.S. CONST., amend. V); id. at 1556
(Thomas, J., concurring) (citing U.S.
CONST., amend. V).
833
Lain, supra note 260, at 12.
834
See William J. Brennan, Jr., Constitutional Adjudication and the Death Penalty: A View from the Court,
100 H
ARV. L. REV. 313, 327 (1986); Erwin Chemerinsky, Evolving Standards of Decency in 2003—Is the
Death Penalty on Life Support?, 29 U.
DAYTON L. REV. 201, 213–14 (2004); Samuel R. Gross, Still Unfair,
Still Arbitrary—But Do We Care?, 26 O
HIO N.U. L. REV. 517, 520 (2000); Lain, supra note 260, at 12–13;
Abner J. Mikva, Judges on Judging—Statutory Interpretation: Getting the Law to Be Less Common, 50
O
HIO ST. L.J. 979, 980 (1990); see also Julian S. Nicholls, Too Young to Die: International Law and the
Imposition of the Juvenile Death Penalty in the United States, 5 E
MORY INT’L L. REV. 617 (1991)
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
308
off body parts, as even the well-known originalist Robert Bork once conceded should not
be done,
835
why should the state be perpetually authorized to take life?
836
In fact, given
that the death penalty was authorized in America by numerous eighteenth-century laws, it
would have been surprising had the Bill of Rights not guaranteed due process protections
against the taking of “life,” the state’s ultimate sanction.
¶175 In fact, the Bill of Rights was put in place to protect individual rights, not to
affirmatively deprive individuals of their property, their liberty or their lives. And the
list of protected rights is impressive. The First Amendment protects the freedoms of
religion, speech and the press and the right of people to assemble and petition for redress
of grievances.
837
The Second Amendment protects “the right of the people to keep and
(discussing the changes in juvenile sentencing since the founding of the United States); accord Furman,
408 U.S. at 283 n.28 (Brennan, J., concurring); id. at 384 (Burger, C.J., dissenting); id. at 430 (Powell, J.,
dissenting).
835
See Marijane Camilleri, Lessons in Law from Literature: A Look at the Movement and a Peer at Her
Jury, 39 C
ATH. U. L. REV. 557, 579 n.107 (1990) (noting that Bork has been describing as an “originalist”);
see also Robert Bork, Neutral Principles and Some First Amendment Problems, 47 I
ND. L.J. 1 (1971)
(containing Bork’s defense of originalism). Relying on the text of the Fifth Amendment, Robert Bork—the
former Supreme Court nominee—has argued that the death penalty is constitutional. See Ronald Dworkin,
Bork’s Jurisprudence, 57 U.
CHI. L. REV. 657, 668–73 (1990) (reviewing ROBERT H. BORK, THE TEMPTING
OF
AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990)).
Yet, in Gregg v. Georgia, then-Solicitor General Bork readily conceded before the Supreme Court itself
that tearing a man apart limb by limb would not pass constitutional muster. See M
AY IT PLEASE THE
COURT 234 (Peter Irons & Stephanie Guitton eds., 1993). At the oral argument in Gregg, Justice Stewart
asked this question: “What if a state said for the most heinous kind of first-degree murders we are going to
inflict breaking a man on the wheel and then disemboweling him while he is still alive and then burning
him up: What would you say to that?” Bork replied: “I would say that that practice is so out of step with
modern morality and modern jurisprudence that the state cannot return to it. That kind of torture was
precisely what the framers thought they were outlawing when they wrote the cruel and unusual
punishments clause.” Id.
836
Justice William Brennan—who thought a great deal about the death penalty and issues of constitutional
interpretation—has sagely made the point that the Framers themselves deliberately left to future judges the
responsibility of interpreting the “cruel and unusual punishments” clause. The Eighth Amendment does not
tell us that “the definition of ‘cruel and unusual’ is to be static over time,” Justice Brennan explained,
noting that unlike the Constitution’s specific dictate that no one may serve as President until attaining the
age of 35, the Framers knew—and consciously chose—the abstract “cruel and unusual punishments”
language, knowing full well that language could be interpreted in a number of ways. “The Framers,”
Brennan emphasized, “surely understood that judging would not be easy or straightforward: no doubt that
is why they took such great pains to ensure the independence of judges by providing life tenure and
protecting against diminution of judges’ compensation.” Brennan, supra note 834, at 325–26.
Elsewhere, Brennan points out in no uncertain terms that the Eighth Amendment definition of “cruel and
unusual” cannot simply be “frozen in time.” See William J. Brennan, Jr., Neither Victims Nor
Executioners, 8 N
OTRE DAME J.L. ETHICS & PUB. POL’Y 1, 6 (1994). To read the Constitution as
perpetually authorizing capital punishment, Brennan says, would actually do violence to the Framers’
vision—which was to leave to future judges and future generations the right to decide for themselves what
constitutes “cruel and unusual” punishment: “I want to emphasize just one more time that what I am urging
is respect for what I believe the Framers insisted of judges: namely, to accept the responsibility and burden
and challenge of working with the majestic generalities of their magnificent Constitution. Those who
would have the eighth amendment read today to bar only what was considered cruel and unusual in 1791
would, it seems to me, do violence to what they purport to embrace, namely the intent of the Framers.
Does it not seem apparent that if the Framers really did intend the clause to prohibit only a closed set of
brutal practices, they would have told us so? Were not these men capable of communicating specific
mandates when that was their intention and desire? I think they were.” Brennan, supra note 834, at 326;
accord Brennan, supra note 442, at 575 (“[T]he broad wording of the ‘Cruel and Unusual Punishments’
Clause was likely an intentional choice by the framers to allow future generations to define cruel and
unusual punishments.”).
837
U.S. CONST. amend. I.
Vol. 4:2] John D. Bessler
309
bear Arms,”
838
and the Fourth Amendment protects against “unreasonable searches and
seizures.”
839
The Fifth Amendment confers due process rights, requires grand jury
indictments for certain crimes, and guards against double jeopardy, self-incrimination,
and takings without just compensation.
840
The Sixth Amendment guarantees speedy and
public trials before impartial juries, the assistance of counsel, and confrontation and
process rights.
841
The Seventh Amendment guarantees the right to trial by jury in certain
cases,
842
and the Ninth and Tenth Amendments speak of rights “retained by the
people”
843
or “reserved to the States . . . or to the people.”
844
¶176 The Eighth Amendment—like all the others—is an integral part of the Bill of
Rights that cannot be ignored by judges or legislators. Thus, if a fine is “excessive” or a
punishment is found to be “cruel and unusual” it violates the Eighth Amendment and is
unconstitutional—with no further analysis required. The Eighth Amendment plainly
does not say that only those punishments deemed cruel and unusual in 1791 are
prohibited. On the contrary, the Eighth Amendment uses common words like
“excessive” and “cruel and unusual” that successive generations can interpret for
themselves—something the Supreme Court itself has recognized in its decisions.
845
Indeed, early American jurists routinely used the everyday words “cruel” and “unusual”
in their judicial opinions
846
just as legislators used—and continue to use—those words in
legislation.
847
838
U.S. CONST. amend. II.
839
U.S. CONST. amend. IV.
840
U.S. CONST. amend. V. The Fourteenth Amendment also protects due process rights and guarantees the
equal protection of the laws. U.S.
CONST. amend. XIV.
841
U.S. CONST. amend. VI. The abysmal quality of defense counsel in many capital trials—replete with
incompetent or even drunk or sleeping lawyers—is nothing short of scandalous. See Jeffrey L. Kirchmeier,
Drinks, Drugs and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the
Strickland Prejudice Requirement, 75 NEB. L. REV. 425 (1996); McFarland v. Scott, 512 U.S. 1256, 1259
(1994) (Blackmun, J., dissenting) (noting that defendants have been sentenced to death after being
represented by counsel who failed to read the applicable death penalty statute, slept at trial, failed to
investigate or present any mitigating evidence at the penalty phase, been admitted to practice for less than a
year, or who lacked even a basic understanding of the applicable law).
Needless to say, the quality of representation in capital cases is not even close to that envisioned by the
American Bar Association. Eric M. Freedman, Mend It or End It?: The Revised ABA Capital Defense
Representation Guidelines as an Opportunity to Reconsider the Death Penalty, 2 O
HIO ST. J. CRIM. L. 663
(2005); see also Robin M. Maher, The ABA and the Supplementary Guidelines for the Mitigation Function
of Defense Teams in Death Penalty Cases, 36 H
OFSTRA L. REV. 763, 763 (2008) (noting that the ABA’s
House of Delegates approved the revised ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases in 2003); Supplementary Guidelines for the Mitigation Function
of Defense Teams in Death Penalty Cases, 36 H
OFSTRA L. REV. 677, 677 (2008) (noting that
Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases were
developed in conjunction with the ABA’s Death Penalty Representation Project).
842
U.S. CONST. amend. VII.
843
U.S. CONST. amend. IX.
844
U.S. CONST. amend. X.
845
See Thompson, 487 U.S. at 821 (plurality opinion) (citing Trop, 356 U.S. at 101 (plurality opinion)).
846
Early American jurists commonly used the phrases “cruel or unusual” or “cruel and unusual” to refer to
homicidal conduct or other violent acts. See United States v. Travers, 2 Wheeler C.C. 490, 28 F. Cas. 204,
210 (C.C. Mass. 1814); People v. Pearce, 2 Edm. Sel. Cas. 76 (N.Y. Sup. 1849); People v. Sherry, 2 Edm.
Sel. Cas. 52 (N.Y. Sup. 1849); People v. Gallagher, 1 Edm. Sel. Cas. 578 (N.Y. Sup. 1848); Jacob v. State,
22 Tenn. 493, 1842 WL 1984, at *2 (Tenn. 1842); McWhirt v. Com., 3 Gratt. 594, 1846 WL 2405, at *7
(Va. Ga. 1846); cf. Ely v. Thompson, 3 A.K. Marsh 70, 10 Ky. 70, 1820 WL 1161, at *4 (Ct. App. Ky.
1820); Fuller v. Colby, 3 Woodb. & M. 1, 9 F. Cas. 980 (C.C. Mass. 1846); Kelly v. State, 1 Morr. St. Cas.
235, 1844 WL 2092, at *5 (Miss. Err. App. 1844); Mann v. Trabue, 1 Mo. 709, 1827 WL 1987, at *1 (Mo.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
310
¶177 In interpreting the Eighth Amendment, it is also important to keep in mind what
else the Constitution does not say. The Constitution does not say that murderers or other
criminals shall be punished by death,
848
and it certainly does not say that capital
punishment shall be deemed constitutional in perpetuity, regardless of how society may
evolve and change.
849
The Constitution and the Bill of Rights protect individual rights,
they do not forever enshrine the death penalty in American law.
850
In the end, it is for the
Supreme Court Justices to decide—as their solemn oaths to uphold the Constitution
require
851
—whether death sentences constitute “cruel and unusual punishments.”
852
1827); State v. Maner, 2 Hill (SC) 453, 20 S.C.L. 453, 1834 WL 1528 (S.C. App. 1834);
847
Such language is still found today in many provisions of federal law. See 10 U.S.C. § 855 (“Punishment
by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment,
may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of
irons, single or double, except for the purpose of safe custody, is prohibited.”); 10 U.S.C. § 949s (setting
forth an identical prohibition for a “military commission”); 18 U.S.C. § 2191 (“Whoever, being the master
or officer of a vessel of the United States, on the high seas, or on any other waters within the admiralty and
maritime jurisdiction of the United States, flogs, beats, wounds, or without justifiable cause, imprisons any
of the crew of such vessel, or withholds from them suitable food and nourishment, or inflicts upon them
any corporal or other cruel and unusual punishment, shall be fined under this title or imprisoned not more
than five years, or both.”); 22 U.S.C. § 6912 (a U.S. Commission “shall monitor the acts of the People’s
Republic of China which reflect compliance with or violation of human rights,” including concerning “the
right to be free from torture and other forms of cruel or unusual punishment”); 25 U.S.C. § 1302 (“No
Indian tribe in exercising powers of self-government shall . . . inflict cruel and unusual punishments”).
Federal law also bars “cruel and unusual punishments” in Guam and the Virgin Islands. See 48 U.S.C. §
1421b(h) (Guam); 48 U.S.C. § 1561 (Virgin Islands).
848
Indeed, the Constitution actually never requires the imposition of the death penalty. For example,
Article III, section 3, which deals with treason, provides: “The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.” U.S. C
ONST. art. III, § 3. Thus, even for the high crime of treason,
death is not mandated in the constitutional text. The Thirteenth Amendment also speaks of punishment:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S.
C
ONST. amend. XIII, § 1. Again, however, the “punishment for crime” is left unspecified.
849
As Justice Brennan pointed out in his concurrence in Furman: “We can . . . infer that the Framers
recognized the existence of what was then a common punishment. We cannot, however, make the further
inference that they intended to exempt this particular punishment from the express prohibition of the Cruel
and Unusual Punishments Clause. Nor is there any indication in the debates on the Clause that a special
exception was to be made for death. If anything, the indication is to the contrary, for Livermore
specifically mentioned death as a candidate for future proscription under the Clause.” Furman, 408 U.S. at
283 (Brennan, J., concurring); see supra text accompanying note 463 (citing Livermore’s comments).
850
Provisions of the Constitution other than the Bill of Rights also protect individual rights. For instance,
the Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. C
ONST. art. I, § 9.
Likewise, in cases of treason, the Constitution provides: “No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. C
ONST.
art. III, § 3. In addition, the Constitution grants the President the right “to grant Reprieves and Pardons for
Offenses against the United States.” U.S. C
ONST. art. II, § 2.
851
The Constitution is “the Supreme Law of the Land” and all “judicial Officers” are “bound by Oath or
Affirmation, to support this Constitution.” U.S. C
ONST. art. VI; see also 28 U.S.C. § 453 (setting forth the
oath taken by judges).
852
Justice William Brennan certainly held the view that the Supreme Court will someday strike down death
penalty laws. See Brennan, supra note 834, at 331 (1986) (“With respect to the death penalty, I believe that
a majority of the Supreme Court will one day accept that when the state punishes with death, it denies the
humanity and dignity of the victim and transgresses the prohibition against cruel and unusual punishment.
That day will be a great day for our country, for it will be a great day for our Constitution.”).
Vol. 4:2] John D. Bessler
311
¶178 All of the powers granted in the Constitution—as every civics student learns—
come from “We the People of the United States.”
853
That means, of course, that so long
as death penalty laws exist, it is we, the American people, who are allowing executions to
occur. But do we really want our government—the one we empower—to be killing in
our names? In reality, doesn’t the death penalty only demean us? In effect, doesn’t the
death penalty only bring us down to the level of killers? By allowing executions in our
constitutional form of government, it is, after all, “We the People” who become the
executioners—those dark, shadowy figures from the Dark Ages who have been shunned
throughout history.
854
Fortunately, with maximum-security prisons and life-without-
parole statutes, we now have a viable alternative to executions—locking up violent
offenders—that we can use.
¶179 America’s death penalty, a vestige of harsh English criminal codes that no longer
exist, has corrupted Eighth Amendment jurisprudence and become our national shame.
Capital punishment laws, which gratuitously take life, are morally bankrupt, do nothing
to further public safety, and only lessen America’s credibility abroad when we talk about
promoting human rights. There is, in fact, no persuasive scientific proof that executions
deter violent crime more effectively than life-without-parole sentences.
855
A few recent
studies, roundly criticized for their methodologies, make wild and reckless claims that
frequent executions deter homicidal acts and—in the words of the researchers—“save”
lives.
856
But such studies fail to consider the powerful deterrent effect of life-without-
parole statutes and sentences.
857
¶180 The “deterrence” hypothesis is particularly weak in the modern-day context in
which capital punishment is administered. First, executions are now carried out in
private—a change initiated by nineteenth-century American legislators who themselves
853
U.S. CONST. pmbl.
854
See BESSLER, DEATH IN THE DARK, supra note 31, at 150 (“Executioners, who have worn masks or
hoods for centuries to prevent their recognition, have been universally despised throughout history.
Daughters of executioners were forbidden to marry men outside the profession, and communities
sometimes decreed that executioners’ houses had to be painted red.”).
855
See Jeffrey Fagan, Death and Deterrence Redux: Science, Law and Casual Reasoning on Capital
Punishment, 4 O
HIO ST. J. CRIM. L. 255, 271 (2006).
856
See Hashem Dezhbakhsh, Paul H. Rubin & Joanna M. Shepherd, Does Capital Punishment Have a
Deterrent Effect? New Evidence from Post-Moratorium Panel Data, 5 A
M. L. & ECON. REV. 344, 373
(2003) (“[O]ur most conservative estimate is that the execution of each offender seems to save, on average,
the lives of eighteen potential victims.”); H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row:
Commuted Sentences and the Deterrent Effect of Capital Punishment, 56 J.
LAW & ECON. 453, 456 (2003)
(finding that “each additional execution or commutation reduces or increases homicides by about five,
while an additional removal from death row generates about one additional murder”). Joanna M. Shepherd,
Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, 104 M
ICH. L.
REV. 203, 247 (2005) (finding that executions deter murders in states that regularly conduct executions and
that executions increase murder rates in states that do not frequently carry out executions); Johanna M.
Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J.
LEGAL
STUDIES 283, 308 (2004) (claiming that each execution results in an average of three fewer murders); .
857
See Fagan, supra note 855, at 270, 279. Life-without-parole sentences are far more frequently imposed
in murder cases than death sentences. Id. at 270. In 1999, Pennsylvania had 139 life-without-parole
sentences compared to 15 death sentences; in 2000, that state had 121 life sentences compared to 12 death
sentences; and in South Carolina, 485 defendants received life-without-parole sentences since 1996
compared to 27 executions in that time frame. Michael Tonry, Learning from the Limitations of
Deterrence Research, 37 C
RIME & JUST. 279, 279 (2008) (finding no credible evidence that capital
punishment deters better than life sentences).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
312
found executions to be brutalizing.
858
The publicity surrounding executions is thus
reduced or, in some cases, almost non-existent. Second, only a tiny percentage of
American murderers are ever executed, making the “deterrence” theory all the more
implausible.
859
It thus makes no sense to craft social policy and continue to put people to
death on the basis of outlier studies purporting to find a greater deterrent effect for
executions than for imprisonment.
¶181 Indeed, murderers are the exact opposite of rational actors, and the very fact that
they have murdered people shows their utter lack of judgment. There is thus little reason
to believe that poorly educated, hot-headed killers, who often suffer from brain damage
and severe mental illnesses, ever rationally weigh the consequences of their actions—
especially when drunk or on drugs, as they frequently are when they commit their
crimes.
860
Perhaps that explains why the vast majority of police chiefs and criminologists
do not believe executions effectively deter murder.
861
Given the lack of credible
evidence demonstrating any causal relationship between death sentences and lower
murder rates, it seems rather Orwellian—to say the least—to contend that state-
sanctioned killing “saves” lives.
862
¶182 In actuality, death sentences have become a burdensome distraction—and at times,
even an outright impediment—to law enforcement efforts. The death penalty saps the
resources of America’s criminal justice system, and at bottom, death sentences are only
corrosive of our efforts to build a more just and less violent society. As Justice Louis
Brandeis once wrote: “Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are commands to the
citizen.”
863
“Our government,” he explained, “is the potent, the omnipresent teacher. For
good or for ill, it teaches the whole people by its example.”
864
858
BESSLER, DEATH IN THE DARK, supra note 31, at 41–44.
859
Compare U.S. Dept. of Just., Fed. Bureau of Investigation, Crime in the U.S. 2005,
http://www.fbi.gov/ucr/05cius/data/table_01.html (last visisted May 13, 2009) (reporting the number of
homicides in the U.S. every year from 1986 to 2005, with the number of murders and non-negligent
manslaughters always exceeding 15,000 annually), with Death Penalty Information Center, Death Penalty
Fact Sheet, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last visisted May 13, 2009) (listing
all the executions, just over 1100, that have occurred in total since 1977); see also King, supra note 794, at
228 (“Less than 1% of murders result in a death sentence.”).
860
See Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation,
35 S
ANTA CLARA L. REV. 547, 566, 585 (1995).
861
See Michael J. Perry, Is Capital Punishment Unconstitutional? And Even if We Think It Is, Should We
Want the Supreme Court to So Rule?, 41 G
A. L. REV. 867, 894 (2007).
862
Such language, if anything, resembles the manipulative party slogans from George Orwell’s famous
book, 1984: “WAR IS PEACE,” “FREEDOM IS SLAVERY,” and “IGNORANCE IS STRENGTH.” See
Judith D. Fischer, Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 M
ONT. L. REV.
129, 131 (2007); see also Jeffrey Fagan, Franklin E. Zimring & Amanda Geller, Capital Punishment and
Capital Murder: Market Share and the Deterrent Effects of the Death Penalty, 84 T
EX. L. REV. 1803, 1804
& nn.6–7, 1860 (2006) (finding “[t]here is simply no visible evidence of the marginal deterrent impact of
the death penalty on death-eligible killings,” and concluding that “the marginal deterrent effect of the threat
or example of execution on those cases at risk for such punishment is invisible”); M
IKE MALES, DEATH
PENALTY AND DETERRENCE: THE LAST WORD, available at http://criminologie.univ-
pau.fr/Statistiques/Death_Penalty_and_Deterrence_USA.pdf (concluding that homicide rates and
executions are “unrelated”).
863
Olmstead v. United States, 277 U.S. 428, 468 (1928) (Brandeis, J., dissenting).
864
Id. Justice Brandeis saw “[c]onfinement in a penitentiary” as “a modern substitute for the death
penalty.” United States v. Moreland, 258 U.S. 433, 448 (Brandeis, J., dissenting).
Vol. 4:2] John D. Bessler
313
E. Realizing Beccaria’s Vision
¶183 In pondering what comes next in the centuries-old death penalty debate, Americans
should not delude themselves as to their own role in executions. Neither should we, as
Americans, turn a blind eye to what is happening in our nation’s prisons or to what is at
stake from a moral standpoint. It is our nation’s citizenry who, as their own governors,
bear collective responsibility for the delivery of deadly chemicals to inmates strapped
down on prison gurneys. Executioners may do the work, perhaps reluctantly or in
conflict with their own consciences, but they do so only in accordance with statutes,
death warrants, and court orders. Because the people’s representatives pass those laws
and issue those directives, it is not the laws or the pieces of paper that kill. Instead, it is
we as American citizens who, through our authorized agents, the executioners, bear
responsibility for such killings. As George Bernard Shaw, Great Britain’s Nobel
Laureate in Literature, once remarked: “Criminals do not die by the hands of the law.
They die by the hands of other men.”
865
¶184 The Founding Fathers foresaw a future—for themselves and for future
generations—where Americans would not only govern themselves, but would live in an
enlightened, prosperous, and civilized society, where cruel and barbarous conditions
would not be tolerated. The Founders—who began their struggle for human rights by
signing the Declaration of Independence
866
—knew they would have to fight to realize
their vision, but that it was one worth fighting for.
867
The key to that vision was—and
remains—an informed citizenry. As James Madison so eloquently articulated generations
ago: “A popular Government, without popular information, or the means of acquiring it,
is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever
govern ignorance; And a people who mean to be their own Governors, must arm
themselves with the power which knowledge gives.”
868
¶185 Ideally, the standards and mores of Americans will evolve to the point where death
sentences come to be abhorred as much as lynchings are now. Until that happens,
however, the lofty language in the Universal Declaration of Human Rights
869
about the
“right to life”—as well as similar aspirational words from the Declaration of
Independence
870
—will be mere words, nothing more than a goal to be sought after, and
865
LEWIS D. EIGEN & JONATHAN P. SIEGEL, DICTIONARY OF POLITICAL QUOTATIONS 63 (1993). Shaw
believed that “[a]ssassination on the scaffold is the worst form of assassination, because there it is invested
with the approval of society.” Id. He also said: “It is the deed that teaches, not the name we give it.
Murder and capital punishment are not opposites that cancel one another, but similars that breed their
kind.” G
EORGE BERNARD SHAW, MAN AND SUPERMAN 232 (1903).
866
DECLARATION OF INDEPENDENCE (U.S. 1776). The Declaration of Independence—which ultimately led
to the ratification of the Constitution and the guarantee in the Bill of Rights against cruel and unusual
punishments—railed against the abuses of the “King of Great-Britain.” Among the “long Train of abuses”
cited in the Declaration was that the King “has constrained our fellow Citizens taken Captive on the high
Seas to bear Arms against their Country, to become the Executioners of their Friends and Brethren, or to
fall themselves by their Hands.” Id., paras. 28–29.
867
See Carlton F.W. Larson, The Declaration of Independence: A 225th Anniversary Re-Interpretation, 76
W
ASH. L. REV. 701, 782 (2001).
868
BESSLER, DEATH IN THE DARK, supra note 31, at 211.
869
UNIVERSAL DECLARATION OF HUMAN RIGHTS, art. III (U.N. 1948).
870
The Declaration of Independence, issued by the Continental Congress on July 4, 1776, forcefully
proclaimed: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). “[T]o secure these Rights,” the
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
314
certainly not a reality achieved. Wouldn’t it be nice to see those high-minded words
matched with deeds, to see that inspiring language become fully operational? If
executions were at long last banned, it would finally fulfill the dreams of those
Enlightenment thinkers and drafters of the Universal Declaration of Human Rights who
either fought for the death penalty’s abolition or foresaw the end of executions.
871
¶186 If history is any indication, American executions are destined to disappear. In fact,
in assessing the abolition movement’s prospects of success, it may be instructive to recall
another hard-fought crusade: the anti-lynching movement.
872
Until the NAACP launched
a movement to end them, extra-judicial lynchings in America were common.
873
Described as “an established custom” by the end of the colonial period,
874
such lawless
spectacles—often fueled by racism and perpetrated by groups like the Ku Klux Klan—
once pockmarked the American landscape and often took place before unruly mobs.
875
Lynch mobs and other acts of “frontier justice”—often targeted at blacks
876
—grabbed
newspaper headlines in the South
877
and West
878
and even as far north as Minnesota
879
Founding Fathers believed, “Governments are instituted among Men, deriving their just Powers from the
Consent of the Governed.” Id.
871
It would not do violence to the “original intent” of the Framers were the members of the Supreme
Court—exercising their own judgment—to declare the death penalty unconstitutional. Gilreath, supra note
137, at 563. Indeed, such a ruling would be fully consistent with the Declaration of Independence, which
speaks of the “unalienable” right to “Life.” THE DECLARATION OF INDEPENDENCE cl. 1 (U.S. 1776).
872
The connection between lynchings and executions is one that has been noted before. The renowned
American lawyer Stephen Bright, in fact, has aptly called the death penalty “a direct descendent of
lynching and other forms of racial violence and racial oppression in America.” Stephen B. Bright,
Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death
Penalty, 35 S
ANTA CLARA L. REV. 433, 439 (1995).
873
The NAACP and courageous Americans like Ida B. Wells crusaded against lynching for decades. See
generally
MARY JANE BROWN, ERADICATING THIS EVIL: WOMEN IN THE AMERICAN ANTI-LYNCHING
MOVEMENT, 1892-1940 (Graham Russell Hodges ed., 2000); DONALD L. GRANT, THE ANTI-LYNCHING
MOVEMENT, 1883-1932 (1975); ELAINE SLIVINSKI LISANDRELLI, IDA B. WELLS-BARNETT: CRUSADER
AGAINST LYNCHING (1998); ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-
1950
(1980). These efforts only bore fruit when Americans came to see the horrors of lynching and grew
outraged.
874
JACQUELINE JONES ROYSTER, ED., SOUTHERN HORRORS AND OTHER WRITINGS: THE ANTI-LYNCHING
CAMPAIGN OF IDA B. WELLS, 1892-1900, at 8 (1997).
875
E.g., BESSLER, LEGACY OF VIOLANCE, supra note 128, at 188–197. Highly disturbing photographs of
lynchings—some depicting lynch mob participants looking right into the camera—have been collected in
recent years, giving the American public a glimpse into the brutality of these spectacles. See D
ORA APEL &
SHAWN MICHELLE SMITH, LYNCHING PHOTOGRAPHS (2007); JAMES ALLEN ET AL., WITHOUT SANCTUARY:
LYNCHING PHOTOGRAPHY IN AMERICA (2000). One such photograph, taken in Duluth, Minnesota, in 1920,
depicts a semi-circle of white men in hats, posing and smiling for the camera as they surround three dead
African-American men who were lynched there. In the photo, two of the men’s mangled bodies are still
strung up on a light pole and the third man’s body lies face down in the street at the feet of some of the
lynch mob participants. See
BESSLER, LEGACY OF VIOLENCE, supra note 128, at 196.
876
MARK CURRIDEN & LEROY PHILLIPS, JR., CONTEMPT OF COURT, THE TURN-OF-THE-CENTURY
LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM 354–55 (2001) (referencing 3385 mob lynchings
of African Americans in the U.S. between 1882 and 1935); W.
FITZHUGH BRUNDAGE, LYNCHING IN THE
NEW SOUTH: GEORGIA AND VIRGINIA, 1880-1930, 262 (1993) (of the 460 lynching victims in Georgia
between 1880 and 1930, 441 were African Americans).
877
See generally UNDER SENTENCE OF DEATH: LYNCHING IN THE SOUTH (W. Fitzhugh Brundage ed.,
1997);
WILLIAM D. CARRIGAN, THE MAKING OF A LYNCHING CULTURE: VIOLENCE AND VIGILANTISM IN
CENTRAL TEXAS, 1836-1916 (2004); WALTER T. HOWARD, LYNCHINGS: EXTRALEGAL VIOLENCE IN
FLORIDA DURING THE 1930S (2005); JULIUS E. THOMPSON, LYNCHING IN MISSISSIPPI: A HISTORY, 1865-
1965
(2006); STEWART E. TOLNAY & E.M. BECK, A FESTIVAL OF VIOLENCE: AN ANALYSIS OF SOUTHERN
LYNCHINGS, 1882-1930 (1995); MICHAEL V. USCHAN, LYNCHING AND MURDER IN THE DEEP SOUTH
(2007); MARGARET VANDIVER, LETHAL PUNISHMENT: LYNCHINGS AND LEGAL EXECUTIONS IN THE SOUTH
Vol. 4:2] John D. Bessler
315
well into the twentieth century, with 4743 lynchings recorded nationwide from 1882 to
1968.
880
¶187 Although large segments of the American public paid little attention to the evils of
lynching in the early nineteenth century,
881
as the anti-lynching movement gained steam,
public attitudes changed and progress was gradually made. Today, of course, lynchings
are a thing of the past and lynching is universally viewed with disdain and horror.
882
So
long ago did this sad chapter in American history occur that lynching no longer draws the
attention of social activists, but rather of historians.
883
Indeed, a widely accepted legal
norm against lynchings—or any criminal proceedings dominated by a mob atmosphere—
already exists in American law.
884
Change may come slowly or incrementally, as it did
(2006).
878
See generally FREDERICK ALLEN: A DECENT, ORDERLY LYNCHING: THE MONTANA VIGILANTES (2004);
KEN GONZALES-DAY, LYNCHING IN THE WEST: 1850-1935 (2006); STEPHEN J. LEONARD, LYNCHING IN
COLORADO, 1859-1919 (2002).
879
BESSLER, LEGACY OF VIOLENCE, supra note 128; MICHAEL FEDO, THE LYNCHINGS IN DULUTH
(Minnesota Historical Society Press 2000) (1979).
880
ROYSTER, supra note 874, at 10.
881
In the late nineteenth and early twentieth centuries, very little—at least beyond what appeared in
pamphlets, newspapers, and a few law journals and books—was actually written about lynching. See
generally J
AMES HARMON CHADBOURN, LYNCHING AND THE LAW (1933); ARTHUR FRANKLIN RAPER, THE
TRAGEDY OF LYNCHING (1933); Charles A. Bonaparte, Lynch Law and Its Remedy, 8 YALE L.J. 335 (1899);
Joseph Edwin Proffit, Lynching: Its Cause and Cure, 7 Y
ALE L.J. 264 (1898); Wm. Reynolds, The Remedy
for Lynch Law, 7 Y
ALE L.J. 20 (1897); Charles H. Watson, Need of Federal Legislation in Respect to Mob
Violence in Cases of Lynching of Aliens, 25 Y
ALE L.J. 561 (1916). Indeed, the very idea of a federal anti-
lynching law met with vigorous opposition, including from those who deplored lynching. See Walter F.
Dodd, The Growth of National Power, 32 Y
ALE L.J. 452, 456–57 (1923).
882
The sustained public outrage surrounding the brutal dragging death of James Byrd by white
supremacists—which reflected the racism so prevalent in the era of lynchings—is emblematic of just how
much progress has been made in American life. See Pat Nolan & Marguerite Telford, Indifferent No More:
People of Faith Mobilize to End Prison Rape, 32 J. LEGIS. 129, 134 (2006) (describing how James Byrd
was picked up, beaten, chained to the back of a pickup truck and dragged for three miles to his death).
883
Only in the last three decades has lynching really begun drawing considerable attention from historians.
E.g., D
ORA APEL, IMAGERY OF LYNCHING: BLACK MEN, WHITE WOMEN, AND THE MOB (2004); RICHARD
M. BROWN, STRAIN OF VIOLENCE: HISTORICAL STUDIES OF AMERICAN VIOLENCE AND VIGILANTISM
(1975); CYNTHIA CARR, OUR TOWN: A HEARTLAND LYNCHING, A HAUNTED TOWN, AND THE HIDDEN
HISTORY OF WHITE AMERICA (2007); JAMES ELBERT CUTLER, LYNCH-LAW: AN INVESTIGATION INTO THE
HISTORY OF LYNCHING IN THE UNITED STATES (2007); PHILIP DRAY, AT THE HANDS OF PERSONS
UNKNOWN: THE LYNCHING OF BLACK AMERICA (2003); PAUL FINKELMAN ED., LYNCHING, RACIAL
VIOLENCE, AND LAW (1992); RALPH GINZBURG, 100 YEARS OF LYNCHING (Black Classic Press 1988)
(1962); JACQUELINE GOLDSBY, A SPECTACULAR SECRET: LYNCHING IN AMERICAN LIFE AND LITERATURE
(2006); SHERRILYN A. IFILL, ON THE COURTHOUSE LAWN: CONFRONTING THE LEGACY OF LYNCHING IN
THE
TWENTY-FIRST CENTURY (2007); JAMES H. MADISON, A LYNCHING IN THE HEARTLAND: RACE AND
MEMORY IN AMERICA (2001); JONATHAN MARKOVITZ, LEGACIES OF LYNCHING: RACIAL VIOLENCE AND
MEMORY (2004); THE LYNCHING OF EMMETT TILL: A DOCUMENTARY NARRATIVE (Christopher Metress
ed.,
2002); NORTON H. MOSES, LYNCHING AND VIGILANTISM IN THE UNITED STATES: AN ANNOTATED
BIBLIOGRAPHY (1997); CHARLES J. OGLETREE, JR. & AUSTIN SARAT EDS., FROM LYNCH MOBS TO THE
KILLING STATE: RACE AND THE DEATH PENALTY IN AMERICA (2006); MICHAEL J. PFEIFER, ROUGH
JUSTICE: LYNCHING AND AMERICAN SOCIETY, 1874-1947 (2004); WITNESSING LYNCHING: AMERICAN
WRITERS RESPOND (Anne P. Rice, ed., 2003); ELIZA STEELWATER, THE HANGMAN’S KNOT: LYNCHING,
LEGAL EXECUTION, AND AMERICA’S STRUGGLE WITH THE DEATH PENALTY (2003); LYNCHING IN AMERICA:
A HISTORY IN DOCUMENTS (Christopher Waldrep ed., 2006); IDA B. WELLS-BARNETT, ON LYNCHINGS
(2002); LAURA WEXLER, FIRE IN A CANEBRAKE: THE LAST MASS LYNCHING IN AMERICA (2003); GEORGE
C. WRIGHT, RACIAL VIOLENCE IN KENTUCKY, 1865-1940: LYNCHINGS, MOB RULE, AND “LEGAL
LYNCHINGS” (1990).
884
Ex parte Wall, 107 U.S. 265 (1882) (an attorney’s participation in a lynching is grounds for disbarment);
United States v. Shipp, 214 U.S. 386, 425 (1909) (“It is plain that what created this mob and led to this
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
316
in Beccaria’s day
885
or in the case of the anti-lynching movement, but one thing is for
certain: change comes.
886
As Martin Luther King Jr. so eloquently pointed out: “The
moral arc of the universe is long, but it bends towards justice.”
887
XI. C
ONCLUSION
¶188 The death penalty has been debated for centuries, with the first recorded
parliamentary debate occurring in 427 B.C. in Athens, Greece.
888
Cesare Beccaria, the
lynching was the unwillingness of its members to submit to the delay required for the appeal. The intent to
prevent that delay by defeating the hearing of the appeal necessarily follows from the defendants’ acts, and,
if the life of anyone in the custody of the law is at the mercy of a mob, the administration of justice
becomes a mockery.”); see also C
URRIDEN & PHILLIPS, supra note 876 (telling the story of Supreme Court
contempt proceedings which led to guilty verdicts against Chattanooga’s sheriff, Joseph Shipp, his deputies
and others involved in a lynching).
The Due Process Clause itself imposes certain restraints on what a government can do in any case. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (“Many controversies have raged
about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum
they require that deprivation of life, liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the case.”).
885
Many Enlightenment thinkers accepted only some of Beccaria’s ideas. Following the publication of On
Crimes and Punishments, many Europeans and Americans—though still favoring capital punishment for
murderers—advocated outlawing death sentences for theft and other offenses. M
AESTRO, supra note 1, at
130–31. For example, Benjamin Franklin favored eliminating capital punishment for all crimes other than
mutiny and murder. B
ANNER, supra note 1, at 88; H.W. BRANDS, THE FIRST AMERICAN: THE LIFE AND
TIMES OF BENJAMIN FRANKLIN 503 (2002). Franklin, condemning the disproportion between crimes and
punishments in England, wrote in 1785: “If we really believe, as we profess to believe, that the law of
Moses was the law of God, the dictates of divine wisdom, infinitely superior to human; on what principles
do we ordain death as the punishment of an offence which, according to that law, was only to be punished
by a restitution of fourfold? To put a man to death for an offence which does not deserve death, is it not
murder? I see in the last newspaper from London that a woman is capitally convicted at the Old Bailey for
privately stealing out of a shop some gauze, value fourteen shillings and threepence; is there any proportion
between the injury done by the theft, value 14/3, and the punishment of a human creature, by death, on a
gibbet? Might not that woman, by her labour, have made reparation ordained by God, in paying fourfold?
. . . If I think it right that the crime of murder should be punished with death, not only as an equal
punishment of the crime, but to prevent other murders, does it follow that I must approve of inflicting the
same punishments for a little invasion of my property by theft? If I am not myself so barbarous, so bloody-
minded and revengeful, as to kill a fellow-creature for stealing from me 14/3, how can I approve of a law
that does it?”
MAESTRO, supra note 1, at 133; accord Schwartz & Wishingrad, supra note 75, at 822
(quoting 9 W
RITINGS OF BENJAMIN FRANKLIN 292 (Smyth ed., 1907)). In the year after Franklin wrote
that, Pennsylvania passed a law outlawing the death penalty for robbery, burglary and sodomy. M
AESTRO,
supra note 1, at 133. In some places reform would take longer. It was not until 1808 that Samuel Romilly
succeeded in repealing English laws that punished small thefts with death; and it was not until 1832 that the
death penalty was abolished for stealing a horse or a sheep. Id. at 137.
886
It must not be forgotten—as Oxford scholars Roger Hood and Carolyn Hoyle remind us, recalling
Beccaria’s famous essay—“how entrenched capital punishment was until a movement for reform was
generated by the liberal utilitarian and humanistic ideas spawned by the Enlightenment in Europe towards
the end of the eighteenth century.” HOOD & HOYLE, supra note 411, at 9–11. The gradual elimination of
mandatory death sentences and limiting death sentences to first-degree murder are but two examples of the
abolitionist movement’s success. See Furman, 408 U.S. at 339 (Marshall, J., concurring); McGautha, 402
U.S. at 198.
887
EDWARD O’NEIL JR., A PRACTICAL GUIDE TO GLOBAL HEALTH SERVICE, at xxii (2006).
888
As one scholar puts it: “Diodotus successfully argued before the Athenian Assembly that the death
penalty would not deter the revolutionary activities of conquered citizens and persuaded the Assembly to
stay the executions of all adult males in the rebellious city of Mitylene.” Hong, supra note 31, at 794 n.38
(citing THUCYDIDES, THE HISTORY OF THE PELOPONNESIAN WAR 25–50 (3d ed. 1972)). At times, the
debate over capital punishment has seemed as if it would never end. In 1922, for example, Clarence
Darrow—an ardent opponent of capital punishment who saw executions as “inhuman” and “too horrible a
Vol. 4:2] John D. Bessler
317
great Italian criminologist, made the first fully formulated arguments against capital
punishment and set the modern abolition movement in motion. Though Beccaria
authored On Crimes and Punishments in his twenties, his vision was unfulfilled in his
lifetime—and it was left to future generations to pick up the torch where he left off. In
America, the Founding Fathers were especially intrigued by Beccaria’s ideas, and many
of them came to oppose executions, either altogether or for certain categories of
offenders. Though they narrowed the death penalty’s use and often expressed
ambivalence towards or deep revulsion for executions, they, too, were unable to slay the
death penalty beast. Instead, in drafting the Constitution and the Bill of Rights, they
deliberately left it to future generations to decide what constitutes “cruel and unusual”
punishment. The choice we face today—whether to retain capital punishment or to
abolish it—was thus a choice our forefathers intended for us to make unrestrained by
eighteenth-century mores.
¶189 Progress toward abolition has been slow until recently. Yet the anti-death penalty
movement is now gathering renewed momentum and strength—rapidly in the
international community and slowly but surely in American communities.
889
The U.N.
Secretary-General has noted “a considerable shift towards the abolition of the death
penalty both de jure and in practice.”
890
That trend is accelerating as new scientific tools,
like DNA evidence, prove the law’s fallibility; the death penalty is now no longer even
thing for the State to undertake”—would remark: “The question of capital punishment has been the subject
of endless discussion and will probably never be settled as long as men believe in punishment.”
COYNE &
ENTZEROTH, supra note 269, at 3; CLARENCE DARROW ON CAPITAL PUNISHMENT 39–40 (1991).
Thankfully, the complete abolition of the death penalty in Europe and elsewhere proves that the debate may
conclude at an as-yet-unknown point with the death penalty’s abolition.
889
The pace of abolition in the international community has accelerated rapidly and the abolition
movement itself has been transformed in the process. See H
OOD & HOYLE, supra note 411, at 14, 16, 18.
An understanding of why the death penalty has been fading so fast from the international scene becomes
more apparent after studying the advancement of the field of international human rights law. In Europe—
the situs of the abolitionist movement’s greatest success—“[f]undamentally important was the message that
had been conveyed: a principled opposition to the death penalty as a violation of fundamental human
rights.” Id. at 25. Indeed, both the Council of Europe and the European Union publicly declared that “[t]he
death penalty has no legitimate place in the penal systems of modern civilized societies, and its application
may well be compared with torture and be seen as inhuman and degrading punishment.” Id. The
recognition of the connection between the death penalty and torture—two topics Beccaria wrote about in
On Crimes and Punishments—is, in fact, long overdue. See generally W
ILLIAM A. SCHABAS, THE DEATH
PENALTY AS CRUEL TREATMENT AND TORTURE: CAPITAL PUNISHMENT CHALLENGED IN THE WORLD’S
COURTS (1996). The psychological terror and adverse physical and mental health effects that accompany
death sentences and prolonged stays on death row, in addition to the risk of severe pain at executions
themselves, is now well-documented. See Ty Alper, Anesthetizing the Public Conscience: Lethal Injection
and Animal Euthanasia, 35 F
ORDHAM URB. L.J. 817, 852 (2008); Deborah W. Denno, The Lethal Injection
Quandary: How Medicine Has Dismantled the Death Penalty, 76 F
ORDHAM L. REV. 49, 104 (2007)
(discussing study published in the British medical journal, The Lancet, in 2005 that reported that level of
sodium thiopental used in lethal injections might be insufficient, particularly in light of heightened anxiety
of inmates and the potential of poorly trained executioners); Dan Crocker, Extended Stays: Does Lengthy
Imprisonment on Death Row Undermine the Goals of Capital Punishment?, 1 J.
GENDER RACE & JUST.
555, 570–72 (1998) (noting that foreign courts, including the Zimbabwe Supreme Court and the Privy
Council of the British House of Lords, have found it would constitute “torture” and “inhuman and
degrading punishment” to execute inmates confined on death row for prolonged periods of time); Solesbee
v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting) (“The onset of insanity while awaiting
execution of a death sentence is not a rare phenomenon.”).
890
Capital Punishment and Implementation of the Safeguards Guaranteeing the Protection of the Rights of
Those Facing the Death Penalty: Report of the Secretary-General, U.N. ESCOR, at 12, U.N. Doc.
E/1995/78 (1995).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
318
authorized by international war crimes tribunals.
891
With U.S. death sentences and
executions down in numbers, the latest public opinion polls show that Americans are
increasingly divided and ambivalent about capital punishment.
892
¶190 As the abolition movement Beccaria began braces for its 250th anniversary,
abolitionists must continue to agitate and seek to re-frame the death penalty debate. As
the deterrence debate rages on,
893
abolitionists must convince the American public that
advocating life-without-parole sentences for society’s worst offenders is not synonymous
with being soft on crime.
894
As the moral and philosophical debate continues,
abolitionists must convince the public that the death penalty is, fundamentally, a human
rights issue and that the death penalty’s abolition must be considered in that context and
in the context of Martin Luther King Jr.’s non-violence movement.
895
Even as legal
arguments about the Eighth Amendment are made by lawyers and academics,
896
891
See William A. Schabas, War Crimes, Crimes Against Humanity and the Death Penalty, 60 ALB. L.
REV. 733, 733 (1997).
892
See supra text accompanying notes 351-53.
893
The modern, statistically driven debate over whether executions deter violent crime dates to Isaac
Ehrlich’s 1975 article claiming that every execution averted eight murders. See Isaac Ehrlich, The
Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 A
M. ECON. REV. 397, 398
(1975); see also Isaac Ehrlich, Capital Punishment and Deterrence: Some Further Thoughts and Additional
Evidence, 85 J.
POL. ECON. 741 (1977). Ehrlich’s research has been widely criticized, with more recent
research showing that homicide rates are not related to executions and that executions do not deter murder
any better than life-without-parole sentences. See Fagan, Zimring & Geller, supra note 862, at 1804 nn.6–
7, 1859.
894
Most of all, people want to feel safe in their homes and communities, and life-without-possibility-of-
parole sentences take violent offenders off the streets for good. The Supreme Court itself has recognized
that life-without-parole sentences are an important tool at the disposal of juries—so important, in fact, that
courts are sometimes constitutionally required to tell jurors when a defendant would have no chance of
release if convicted. See Simmons v. South Carolina, 512 U.S. 154 (1994); accord Shafer v. South
Carolina, 532 U.S. 36 (2001).
895
JOHN J. ANSBRO, MARTIN LUTHER KING, JR.: NONVIOLENT STRATEGIES AND TACTICS FOR SOCIAL
CHANGE (2007). At the very end of On Crimes and Punishments, Beccaria previewed that view: “In order
that punishment should not be an act of violence committed by one or many against a private citizen, it is
essential that it be public, prompt, necessary, the minimum possible in the given circumstances,
proportionate to the crimes, and established by the law.” B
ECCARIA (Thomas ed.), supra note 1, at 86; see
also Katherine Corry Eastman, The Progress of Our Maturing Society: An Analysis of State-Sanctioned
Violence, 39 W
ASHBURN L.J. 526, 533 (2000) (rejecting the view that state-sanctioned killing is “legitimate
violence” because an execution “is not an immediate response to a threat of harm” but is, instead, “a
contemplated act, thought out over a period of years”; “[t]hus, this act of killing appears to be an expression
of illegitimate control rather than an act of self-preservation”).
896
The Eighth Amendment has been—and continues to be—the subject of much academic debate. See,
e.g., Youngjae Lee, International Consensus as Persuasive Authority in the Eighth Amendment, 156 U.
PA.
L. REV. 63 (2007); Kate McMahon, Dead Man Waiting: Death Row Delays, the Eighth Amendment, and
What Courts and Legislatures Can Do, 25 B
UFF. PUB. INT. L.J. 43 (2006-2007); Michael S. Moore,
Morality in Eighth Amendment Jurisprudence, 31 H
ARV. J.L. & PUB. POL’Y 47 (2008); David J. Pfeffer,
Depriving America of Evolving Its Own Standards of Decency?: An Analysis of the Use of Foreign Law in
Eighth Amendment Jurisprudence and Its Effect on Democracy, 51 S
T. LOUIS U. L.J. 855 (2007); Susan M.
Raeker-Jordan, Parsing Personal Predilections: A Fresh Look at the Supreme Court’s Cruel and Unusual
Death Penalty Jurisprudence, 58 M
E. L. REV. 99 (2006); Celia Rumann, Tortured History: Finding Our
Way Back to the Lost Origins of the Eighth Amendment, 31 P
EPP. L. REV. 661 (2004); Steven F. Shatz, The
Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case
Study, 59 F
LA. L. REV. 719 (2007); Carol S. Steiker, Panetti v. Quarterman: Is There a “Rational
Understanding” of the Supreme Court’s Eighth Amendment Jurisprudence?, 5 O
HIO ST. J. CRIM. L. 285
(2007); Ronald Turner, The Juvenile Death Penalty and the Court’s Consensus-Plus Eighth Amendment, 17
G
EO. MASON U. CIV. RTS. L.J. 157 (2006).
Vol. 4:2] John D. Bessler
319
abolitionists must fight on in the legislative arena and mount challenges to the
discriminatory exclusion from juries of those who oppose capital punishment.
897
¶191 Juries provide a unique window into societal standards because they make real
decisions in real cases. Citizen-jurors do not have the luxury of answering a series of
abstract questions about the death penalty—as some Americans do in response to
telephone pollsters.
898
Instead, they are asked by our legal system to make gut-
wrenching, life-and-death decisions in concrete cases, to decide whether a particular man
or woman, with a name and a family, should live or die.
899
Polling results may move up
and down, whether in response to a horrific crime or to a series of DNA exonerations, but
jurors in capital cases confront the most serious moral questions imaginable when filling
out a verdict form. Since jury verdicts are such a crucial aspect of the Supreme Court’s
Eighth Amendment analysis in capital litigation, the Court deserves to get an accurate
picture of how randomly selected jurors in American society really feel about
executions.
900
¶192 A snapshot of jury decisions from randomly selected juries (as opposed to “death-
qualified” ones) would reveal a sharply divided public deeply conflicted about
executions.
901
Given the unanimity requirement for jury verdicts, many truly
897
Adam M. Clark, An Investigation of Death Qualification as a Violation of the Rights of Jurors, 24 BUFF.
PUB. INTEREST L.J. 1, 3, 38 (2006).
898
When Gallup pollsters ask the abstract question, “Do you favor the death penalty for those convicted of
murder?”, a substantial majority of Americans have said they do since the early 1970s, though the numbers
have fluctuated and decreased somewhat over time. See Jordan M. Steiker, The Seduction of Innocence:
The Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J.
CRIM. L. & CRIMINOLOGY 587, 608 n.69 (2005). When given a choice between the death penalty and life-
without-parole sentences, however, survey respondents are much more evenly split. See R
ICHARD C.
DIETER, DEATH PENALTY INFO. CTR., SENTENCING FOR LIFE: AMERICANS EMBRACE ALTERNATIVES TO THE
DEATH PENALTY (1993), available at http://www.deathpenaltyinfo.org/sentencing-life-americans-embrace-
alternatives-death-penalty; see also D
EATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY,
available at
http://www.deathpenaltyinfo.org/FactSheet.pdf (noting that the May 2006 Gallup Poll found
overall support for capital punishment at sixty-five percent—down from eighty percent in 1994—and that
more Americans preferred life-without-parole sentences than death sentences, forty-eight percent to forty-
seven percent).
899
Support for capital punishment typically falls when people consider the particular facts of a case. See
Samuel R. Gross, American Public Opinion on the Death Penalty—It’s Getting Personal, 83 C
ORNELL L.
REV. 1448, 1473 (1998). This is often true even for particularly heinous crimes, as University of Michigan
law professor Samuel Gross explains: “This gulf between the abstract and the concrete comes into play
directly in capital trials. It explains why jurors who are screened for their willingness to impose the death
penalty nonetheless frequently refuse to do so—even for multiple or mass murderers such as Susan Smith
or Terry Nichols—if the trial teaches them to view the defendant as a person.” Id. at 1474.
900
See Jeffrey L. Kirchmeier, Let’s Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and
Unusual Punishment, 32 C
ONN. L. REV. 615, 644 (2000). This is particularly so given that public attitudes
towards the death penalty are changing and since life-without-parole sentences are widely available as an
alternative. The Supreme Court itself has stated that jurors are supposed to represent the “conscience of the
community,” must give a “reasoned moral response,” and have a “truly awesome responsibility” in capital
cases. See Brewer v. Quarterman, 127 S. Ct. 1706, 1709 (2007); Caldwell v. Mississippi, 472 U.S. 320,
329–30 (1985); McGautha, 402 U.S. at 208; Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).
901
The “death-qualification” standard has evolved over the years. Prior to 1968, prospective jurors were
routinely excluded from jury service if they had “conscientious scruples” against capital punishment. See
Michael W. Peters, Does “Death Qualification” Spell Death for the Capital Defendant’s Constitutional
Right to an Impartial Jury?, 26 WASHBURN L.J. 383 (1987). A series of Supreme Court cases, beginning
with Witherspoon in 1968, later modified that practice and the applicable standard for juror removal—
though “death-qualified” juries have remained the norm over time. See Witherspoon, 391 U.S. at 522, 523
n.21 (holding that “a sentence of death cannot be carried out if the jury that imposed or recommended it
was chosen by excluding veniremen for cause simply because they voiced general objections to the death
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
320
representative juries would be unable to agree on whether a death sentence should be
imposed, thus resulting in more life sentences.
902
That would be very useful information
for the Supreme Court to have as it hears future Eighth Amendment cases and makes
judgments about the death penalty’s constitutionality.
903
Thus, to get an accurate,
unbiased picture of the views of American juries, the Supreme Court should no longer
allow death penalty opponents to be excluded from jury service.
904
¶193 In reflecting on just how far the anti-death penalty movement has come,
abolitionists should take solace and a measure of pride in what has been accomplished so
far. The death penalty’s long, sordid history is one marked by successive restrictions on
its use—a pattern that continues today. No longer are petty thefts or non-homicidal
penalty,” but noting in a footnote that jurors can be excluded if they would refuse to “consider” all possible
punishments “provided by state law,” if they were “irrevocably committed, before the trial has begun, to
vote against the penalty of death,” if they would “automatically” vote against the imposition of the death
penalty, or if “their attitude toward the death penalty would prevent them from making an impartial
decision as to the defendant’s guilt”); Wainwright v. Witt, 469 U.S. 412, 420–31 (1985) (a juror may be
excluded for cause if the juror’s views would “prevent or substantially impair” the performance of the
juror’s duties, and it is the trial judge’s duty to determine whether a given challenge to a prospective juror
is proper) (citing Adams v. Texas, 448 U.S. 38, 45 (1980)); Uttecht v. Brown, 127 S. Ct. 2218, 2224 (2007)
(“the State has a strong interest in having jurors who are able to apply capital punishment within the
framework state law prescribes” and “a juror who is substantially impaired in his or her ability to impose
the death penalty under the state-law framework can be excused for cause”). In Uttecht, the Supreme Court
held that it owed deference to trial court findings as to the exclusion of prospective jurors even as the Court
noted that eleven days of voir dire were spent in the underlying criminal case to death-qualify the jury. Id.
at 2225, 2231.
902
By categorically excluding death penalty opponents from capital juries, death sentences become much
more likely because death-qualified juries tend to be more conviction-prone and less willing to consider
mitigating evidence. See Phoebe C. Ellsworth, To Tell What We Know or Wait for Godot?, 15 L
AW &
HUM. BEHAV. 77 (1991); Claudia L. Cowen et al., The Effects of Death Qualification on Jurors’
Predisposition to Convict and on the Quality of Deliberation, 8 L
AW & HUM. BEHAV. 53 (1984); Robert
Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes,
8 L.
& HUM. BEHAV. 31 (1984); Craig Haney, Juries and the Death Penalty: Readdressing the
Witherspoon Question, 26 C
RIME & DELINQ. 512 (1980); George L. Jurow, New Data on the Effect of a
“Death Qualified” Jury on the Guilt Determination Process, 84 H
ARV. L. REV. 567 (1971); see also
Brooke M. Butler & Gary Moran, The Role of Death Qualification in Venirepersons’ Evaluations of
Aggravating and Mitigating Circumstances in Capital Trials, 26 L
AW & HUM. BEHAV. 175, 182–83
(2002).
903
Although the Supreme Court has held that “the Constitution does not prohibit the States from ‘death
qualifying’ juries in capital case,” see Lockhart v. McCree, 476 U.S. 162, 172–73 (1986), there is no
question that the death qualification process excludes a disproportionate number of minorities and women.
See Stephen F. Smith, The Supreme Court and the Politics of Death, 94 V
A. L. REV. 283, 315 (2008). This
type of discrimination—aimed at classes of jurors who often oppose capital punishment—should not be
tolerated in American society, a society built on freedom of speech and expression. See Brooke A.
Thompson, The Supreme Court Expands the Witt Principles to Exclude a Juror Who Would Follow the
Law, 30 U.
ARK. LITTLE ROCK L. REV. 845, 882–83 (2008).
904
Jury verdicts are, after all, one of the “objective” Eighth Amendment criteria used by the Supreme Court
to gauge the death penalty’s constitutionality. Gregg v. Georgia, 428 U.S. 153, 181 (1976); see also
Witherspoon, 391 U.S. at 519 n.15 (“[O]ne of the most important functions any jury can perform in making
such a [life and death] selection is to maintain a link between contemporary community values and the
penal system—a link without which the determination of punishment could hardly reflect ‘the evolving
standards of decency that mark the progress of a maturing society.’”) (quoting Trop, 356 U.S. at 101);
Spaziano v. Florida, 468 U.S. 447, 485 (1984) (Stevens, J., concurring in part and dissenting in part) (“The
importance of the jury to the legitimacy of the capital sentencing decision has been a consistent theme in
our evaluation of post-Furman capital punishment statutes.”); Atkins v. Virginia, 536 U.S. 304, 324 (2002)
(Rehnquist, J., dissenting) (“In my view, these two sources—the work product of legislatures and
sentencing jury determinations—ought to be the sole indicators by which courts ascertain the contemporary
American conceptions of decency for purposes of the Eighth Amendment.”).
Vol. 4:2] John D. Bessler
321
crimes punished by death in the United States, and no longer does American society
countenance the execution of juveniles, the insane or the mentally retarded.
¶194 In fact, such modern-day developments in criminal law would hardly come as a
surprise to the Framers. Enlightenment thinkers, such as Thomas Jefferson, James
Madison, and Thomas Paine, recognized that all societies evolve and must think for
themselves, and that to lock in future generations to eighteenth-century mores and ethics
would be absurd.
905
For example, Jefferson foresaw that the lex talionis doctrine “will be
revolting to the humanized feelings of modern times.” “An eye for an eye, and a hand for
a hand,” he wrote in 1778, “will exhibit spectacles in execution whose moral effect would
be questionable.”
906
Other Founding Fathers, such as James Wilson, also looked to future
generations to make more enlightened social policy.
907
It is no accident, then, that the
Constitution itself explicitly refers to future generations by referencing “our Posterity” in
its preamble.
908
¶195 Even the Supreme Court—which still sanctions executions—has clearly indicated
that any further expansion of America’s death penalty is intolerable.
909
That signal—
coming in 2008 in the Kennedy case—is significant, as is the particular language from
that decision. “The rule of evolving standards of decency with specific marks on the way
to full progress and mature judgment,” the Court held, “means that resort to the penalty
must be reserved for the worst of crimes and limited in its instances of application.”
910
905
Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 1 THE REPUBLIC OF LETTERS: THE
CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 1776-1826, at 631–36 (James M.
Smith ed. 1995) (Jefferson notes that “the earth belongs . . . to the living”); Gilreath, supra note 137, at 559
(“Is it not the glory of the people of America,” James Madison wrote, “that, whilst they have paid a decent
regard to the opinions of former times and other nations, they have not suffered a blind veneration for
antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of
their own situation, and the lessons of their own experience?”) (quoting The Federalist No. 14); T
HOMAS
PAINE, THE RIGHTS OF MAN (1791), available at http://www.ushistory.org/Paine/rights/c1-010.htm (“Every
age and generation must be as free to act for itself in all cases as the age and generations which preceded it.
The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all
tyrannies. Man has no property in man; neither has any generation a property in the generations which are
to follow.”).
906
Letter from Thomas Jefferson to George Wythe (1778), in 2 THE PAPERS OF THOMAS JEFFERSON 230
(Julian P. Boyd ed. 1950). Madison, too, put his trust in successive generations to create a more just
society. See Letter from James Madison to Thomas Jefferson (Feb. 24, 1826) (“And I indulge a confidence
that sufficient evidence will find its way to another generation, to ensure, after we are gone, whatever of
justice may be withheld whilst we are here.”).
907
See 1 COLLECTED WORKS OF JAMES WILSON, supra note 492, ch. III (“Of the Law of Nature”) (“Our
progress in virtue should certainly bear a just proportion to our progress in knowledge. Morals are
undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as
they are. Hence we may infer, that the law of nature, though immutable in its principles, will be
progressive in its operations and effects. Indeed, the same immutable principles will direct this
progression. In every period of his existence, the law, which the divine wisdom has approved for man, will
not only be fitted, to the contemporary degree, but will be calculated to produce, in future, a still higher
degree of perfection.”).
908
U.S. CONST. pmbl. (“secure the Blessings of Liberty to ourselves and our Posterity”).
909
“As it relates to crimes against individuals,” the Court wrote in Kennedy v. Louisiana, “the death penalty
should not be expanded to instances where the victim’s life was not taken.” 128 S. Ct. 2641, 2659 (2008).
The majority opinion in Kennedy made only one caveat to its ruling, saying: “We do not address, for
example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are
offenses against the State.” Id.
910
Id. at 2665. “In most cases,” the Court wrote, “justice is not better served by terminating the life of the
perpetrator rather than confining him and preserving the possibility that he and the system will find ways to
allow him to understand the enormity of his offense.” Id.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
322
As the Court emphasized: “Evolving standards of decency that mark the progress of a
maturing society counsel us to be most hesitant before interpreting the Eighth
Amendment to allow the extension of the death penalty, a hesitation that has special force
where no life was taken in the commission of the crime.”
911
Though the Court continues
to allow executions to occur, it appears that there will be no turning back of the clock.
¶196 The death penalty has been abolished at different times in different places for
different reasons. Sometimes a botched execution prompts soul-searching and a re-
examination of State policy.
912
In my home state, the State of Minnesota, the last
execution to be carried out was the bungled hanging of William Williams, who dangled
on a noose for nearly fifteen minutes before dying of strangulation. The sheriff had
miscalculated the length of the rope, requiring it to be manually hoisted up by his
deputies as Williams hung in the air.
913
In other instances, the execution of innocent men
has prompted reform.
914
In England, for example, the death penalty was abolished in
1956 after a series of cases focused public attention on wrongful convictions.
915
¶197 What happened in Great Britain highlights what could happen in the United States.
In one case, Timothy Evans was hanged for murder in 1950, but another man, John
Halliday Christie, confessed to the murder three years later.
916
A mentally disabled
teenager, Derek Bentley, was also hanged in 1953 for killing a police officer even though
another teen had actually been the one to pull the trigger.
917
Because capital murder
convictions often rely on the testimony of eyewitnesses or jailhouse informants whose
testimony can be unreliable, wrongful convictions in the United States remain a distinct,
ever-present possibility.
918
¶198 When abolition occurs, it is never because guilty criminals are particularly
sympathetic figures. They are not—and never will be—because their murderous acts are
911
Id. at 2658. “It is an established principle,” the Court concluded, “that decency, in its essence, presumes
respect for the individual and thus moderation or restraint in the application of capital punishment.” Id.
912
See Seema Shah, How Lethal Injection Reform Constitutes Impermissible Research on Prisoners, 45
A
M. CRIM. L. REV. 1101, 1142 (2008). A significant number of executions are bungled or botched. See
M
ICHAEL L. RADELET, DEATH PENALTY INFORMATION CTR., SOME EXAMPLES OF POST-FURMAN BOTCHED
EXECUTIONS (May 24, 2007), http://www.deathpenaltyinfo.org/article.php?scid=8&did=478.
913
BESSLER, LEGACY OF VIOLENCE, supra note 128, at 150.
914
See Carol S. Steiker & Jordan M. Steiker, Should Abolitionists Support Legislative “Reform” of the
Death Penalty?, 63 O
HIO ST. L.J. 417, 422 (2002).
915
Id.
916
See Joseph L. Hoffmann, Starting from Scratch: Rethinking Federal Habeas Review of Death Penalty
Cases, 20 F
LA. ST. U. L. REV. 133, 161 n.113 (1992). Evans was later issued a posthumous royal pardon.
See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40
S
TAN. L. REV. 21, 23 (1987).
917
Bentley, too, was later exonerated, this time by England’s Court of Appeal in 1998. COYNE &
ENTZEROTH, supra note 269, at 1033 n.1; Millett, supra note 34, at 569–72; Bruce P. Smith, The History of
Wrongful Execution, 56 H
ASTINGS L.J. 1185, 1221 (2005).
918
Timothy P. O’Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of
Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 V
AL. U. L. REV. 109,
110 (2006); Steven M. Pincus, “It’s Good to Be Free”: An Essay About the Exoneration of Albert Burrell,
28 W
M. MITCHELL L. REV. 27, 46 (2001) (in a legal case in which two death-row inmates were exonerated,
an unreliable, mentally ill jailhouse informant, known in the community as “Lying” Wayne Brantley, was
found to have engaged in “a bizarre and unbelievable pattern of claiming that capital murder defendants
confess to him when he gets into legal trouble”); see also United States v. Hannigan, 27 F.3d 890, 900 (3d
Cir. 1994) (Becker, J., concurring) (“Social science research . . . has established beyond peradventure that
witness identifications, especially when cross-racial and based on brief moments of observation, are quite
unreliable.”).
Vol. 4:2] John D. Bessler
323
so vile and reprehensible.
919
On the contrary, abolition occurs because civic leaders and
ordinary citizens come to see that the death penalty debases and demeans those who
inflict it.
920
A society that bars executions has decided that killing deranged and mentally
ill criminals who are already safely behind bars is nothing short of senseless barbarism.
921
¶199 As Americans, we should continue studying criminals for clues as to why they do
what they do so that we can prevent crimes in the future. Already, we have learned a
great deal about brain dysfunction and head injuries and frontal-lobe damage in death
row inmates.
922
Mental health experts are now a staple at capital trials,
923
and a growing
body of scientific literature exists on the connection between damage to the frontal lobes
of the brain and violent criminality. With Super Max prisons and life-without-parole
sentences now readily available, however, it is clearer than ever that the bizarre ritual of
state-sanctioned executions should be relegated to the past.
924
No longer should the law
require lawyers to plead for their clients’ lives. And no longer should the law permit
919
Often only at the moment of execution—as eyewitnesses grow uncomfortable at the thought of watching
someone being deliberately put to death—do condemned inmates engender a measure of empathy. At that
moment, the death-row inmate becomes a particularly pathetic figure, strapped down to a gurney, heart
pounding, and utterly helpless to stop his or her own death at the hands of the State. Beccaria himself saw
executions as generating complex emotions among the general public, who at that time would have
frequently seen executions. As Beccaria wrote: “For most people, the death penalty becomes a spectacle
and for some an object of compassion mixed with indignation. Both of these sentiments occupy the minds
of the spectators more than the salutary fear that the law claims to inspire.” B
ECCARIA (Thomas ed.), supra
note 1, at 53. “The limit that the legislator should set on the severity of punishments,” Beccaria offered,
“seems to be that point at which the feeling of compassion begins to prevail over every other in the minds
of those who witness a punishment, which is inflicted more for their sake than the criminal’s.” Id.
920
For example, when the House of Lords debated capital punishment in England, Lord Chancellor
Gardiner had this to say: “When we abolished the punishment for treason that you should be hanged, and
then cut down while still alive, and then disemboweled while still alive, and then quartered, we did not
abolish the punishment because we sympathized with traitors, but because we took the view that it was a
punishment no longer consistent with our self respect.” People v. Anderson, 493 P.2d 880, 899 (Cal. 1972)
(quoting 268 Parl. Deb., H.L. (5th ser.) (1965) 703).
921
There is something particularly distasteful about killing a living being that has been tied up or tied
down. On a hunting trip in Mississippi, American president Theodore Roosevelt—finding it
unsportsmanlike—refused to shoot a dazed black bear that had been cornered, clubbed with the butt of a
gun, and tied up by a hunting party for him to shoot. EDMUND MORRIS, THEODORE REX 172–74 (2001).
To methodically plot—month after month, and year and year—to take another person’s life after that
person has already been arrested, convicted and securely caged in a prison cell is—it seems to me—
bloodsport of the worst sort.
922
D. Michael Bitz & Jean Seipp Bitz, Incompetence in the Brain Injured Individual, 12 ST. THOMAS L.
REV. 205, 233 (1999). Most death row inmates with frontal lobe damage sustained brain damage in their
infancy. Jonathan H. Pincus, Aggression, Criminality, and the Frontal Lobes, in T
HE HUMAN FRONTAL
LOBES: FUNCTIONS AND DISORDERS 547, 549, 554–55 (Bruce L. Miller & Jeffrey L. Cummings eds.,
1999).
923
O. Carter Snead, Neuroimaging and the "Complexity" of Capital Punishment, 82 N.Y.U.L. Rev. 1265,
1293–95 (2007). Increasingly, neuroscientists—using an array of brain-scan technologies—are testifying
as experts at capital trials on behalf of violent offenders. Id. at 1300–02; see also Abram S. Barth, A
Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing, 33 A
M. J. L. & MED. 501,
521–22 (2007) (noting that neuroimaging evidence is introduced as mitigating evidence and that its use is
growing more common in the courtroom). Indeed, a Supreme Court case, Ake v. Oklahoma, 470 U.S. 68
(1985), entitles indigent capital defendants to expert services at both the guilt/innocence and sentencing
phases of trial, and the ABA’s new Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases specifically emphasize the importance of such expert testimony in capital cases.
See Drinan, supra note 777, at 286.
924
That the development of penal systems has made the death penalty obsolete was specifically noted by
Pope John Paul II in his papal encyclical, Evangelium Vitae. Douglas, supra note 112, at 165–66.
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
324
human hands to sign death warrants or load syringes full of lethal chemicals deliberately
calculated to take human life.
¶200 The United States has yet to abolish capital punishment, but it only seems a matter
of time before the American death penalty goes the way of the stocks, the pillory, and the
whipping post.
925
Perhaps a single event, such as the execution of an innocent man or
woman, will trigger abolition, or perhaps the moratorium movement will take firmer hold
and U.S. executions will simply wither away as lynchings did decades ago.
926
As it is,
many U.S. locales no longer use capital punishment,
927
either because of weighty moral
concerns or for practical public policy reasons. Some locales, for example, do not seek
death sentences because of the views of a particular prosecutor or the prohibitive cost of
capital litigation,
928
making the geographic disparity associated with capital punishment
all the more stark with each passing year.
929
While some prosecutors seek the death
penalty as often as the law will allow, others never seek it, making the locale of the
crime—and not the crime itself—determinative as to whether a death sentence is
sought.
930
¶201 Down the road, the Supreme Court—using the Eighth Amendment—might declare
executions unconstitutional. That may not happen soon, but if the death penalty’s use
continues to decline—leaving only a handful of States or counties that inflict it—the
Court might feel compelled to outlaw executions altogether, finding death sentences too
925
Ironically, Dr. Benjamin Rush expressed similar hopes over 220 years ago. In 1787, in an address to the
Society for Promoting Political Enquiries, Rush remarked: “I can only hope that the time is not far away
when gallows, pillory, scaffold, flogging and wheel will, in the history of punishment, be regarded as the
marks of the barbarity of centuries.” FOUCAULT, supra note 21, at 10. In earlier times, the pillory ranked as
one of the world’s most dehumanizing punishments. See M
AESTRO, supra note 1, at 13.
926
Notably, the abolition of the death penalty in South Africa was preceded by an execution moratorium.
See Bentele, supra note 50, at 266. It must also be noted that while the anti-lynching movement in the
United States never succeeded in getting a federal, anti-lynching law passed, lynchings gradually
disappeared—and then stopped altogether. Lynchings came to an end as more and more people joined the
movement and spoke out against this grotesque and evil practice. Kirchmeier, supra note 222, at 90.
927
The rate of executions varies widely by state, but also by counties within states. See, e.g., County of
Conviction for Executed Offenders, Texas Department of Criminal Justice,
http://www.tdcj.state.tx.us/stat/countyexecuted.htm (last visited Aug. 31, 2009). This means that,
practically speaking, what side of a county line a crime is committed on often is more determinative of
whether a death sentence is sought than the nature of the crime itself. See Adam M. Gershowitz, Pay Now,
Execute Later: Why Counties Should Be Required to Post a Bond to Seek the Death Penalty, 41 U.
RICH. L.
REV. 861, 872 (2007); see also id. at 862 (“[W]hile Texas is well known as the most frequent user of the
death penalty, capital cases are not initiated by the Texas Attorney General’s office but instead by a handful
of Texas’s 254 counties. While a majority of Texas counties have not sought a single death sentence
during the last three decades, Harris County—which includes the City of Houston—consistently has sought
the death penalty more than a dozen times per year. Similarly, a disproportionate number of capital
prosecutions in the State of Pennsylvania are instigated by the Philadelphia County District Attorney; most
Illinois cases come from Chicago’s Cook County; and so the story goes throughout the country.”).
928
An execution in North Carolina costs taxpayers $2.16 million more than the cost of a life sentence;
Florida reportedly spends $3.2 million per execution; and each execution in Texas costs taxpayers an
average of $2.3 million. See Testimony of Richard C. Dieter, Judiciary Committee, Colorado House of
Representatives, House Bill 1094, pp. 6–7, available at
http://www.deathpenaltyinfo.org/COcosttestimony.pdf.
929
See Andrew Ditchfield, Challenging the Intrastate Disparities in the Application of Capital Punishment
Statutes, 95 G
EO. L.J. 801, 803–04 (2007) (arguing that “geography, which is a powerful predictor of
whether a capital crime will be charged as such, is the sort of arbitrary factor mentioned in Furman v.
Georgia” that leads to wanton and freakish imposition of death sentences that violate the Eighth
Amendment).
930
See Adam M. Gershowitz, Imposing a Cap on Capital Punishment, 72 MO. L. REV. 73, 74–77 (2007).
Vol. 4:2] John D. Bessler
325
arbitrarily imposed to remain legal.
931
Or perhaps the death penalty—as one scholar
suggests—will “fade slowly” away, going out “with a whimper and not a bang.”
932
Whatever the scenario, it seems inevitable that human progress will eventually claim
capital punishment just as it did lynching.
¶202 In this Internet-driven era, human rights activism has proliferated and abolitionists
have more and more tools at their disposal with which to build stronger networks and
fight for social justice.
933
As the death penalty’s many flaws are exposed by NGOs,
courts, and individual activists, the death penalty’s demise draws closer and closer. In
fact, often all it takes is one particularly memorable event or blunder—such as Virginia
Governor George Allen’s infamous use of the word “Macaca” to derogatorily describe
one of his opponent’s staffers—for a news story to suddenly be everywhere, to “go
viral.”
934
One commentator has aptly spoken of a similar “snowball effect” that
followed Justice Blackmun’s dissent in Callins v. Collins.
935
Soon after that decision, the
ABA sought a moratorium on executions and Governor Ryan imposed one, leading other
states to consider the same thing.
936
¶203 In The Tipping Point, best-selling author Malcolm Gladwell describes dramatic
moments “when everything can change all at once.”
937
The question that arises in the
capital punishment context is whether Americans are on the cusp of just such a moment.
Will there be an event, or perhaps a series of events, that lead to that magical point-of-no-
return and the death penalty’s abolition? Will Americans be horrified by a wrongful
execution? Or will juries just stop sentencing people to death to such an extent that any
931
The Bill of Rights—with its articulation of broad, abstract principles, conferring the rights of “due
process” and “equal protection,” and sweepingly forbidding any “cruel and unusual punishments”—was
certainly drafted to give flexibility to future generations. See R
ONALD DWORKIN, LIFE’S DOMINION 127
(1993). As Ronald Dworkin writes: “Each of these great constitutional clauses is abstract in a particular
way; each makes crucial use of concepts that are not legal terms of art, or taken from economics or some
other branch of social science, but are drawn from ordinary moral and political use: concepts like ‘liberty’
and ‘freedom’ and ‘cruel’ and ‘equal.’ Read in the most natural way, the words of the Bill of Rights do
seem to create a breathtakingly abstract, principled constitution.” Id. at 127–28; see also Ronald Dworkin,
Comment in A
NTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 120–21
(1997) (discussing matters of Eighth Amendment interpretation); Martin v. Hunter’s Lessee, 14 U.S. (1
Wheat.) 304, 326 (1816) (“[t]he constitution unavoidably deals in general language”; “[t]he instrument was
not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of
ages”); Roper v. Simmons, 543 U.S. 551, 578 (2005) (“Not the least of the reasons we honor the
Constitution, then, is because we know it to be our own.”).
932
VICTOR STREIB, DEATH PENALTY IN A NUTSHELL 300 (2008).
933
In Activists Beyond Borders, political scientists Margaret Keck and Kathryn Sikkink write about the
increasing effectiveness of transnational activism, in which advocacy networks across the globe mobilize
and exert pressure on governments to change laws and enforce human rights. M
ARGARET E. KECK &
KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS
(1998). They study historic campaigns such as the effort to end slavery in the United States, the women’s
suffrage movement, and efforts by Western missionaries and Chinese reformers to stop footbinding in
China, and find that one of the most important tools activists have—what they label “information
politics”—is the simple reporting and dissemination of facts. Id. at 39, 45, 183. “As recently as 1970,”
Keck and Sikkink write, “the idea that the human rights of citizens of any country are legitimately the
concern of people and governments everywhere was considered radical.” Id. at 79. Today, of course,
international NGOs and foreign governments routinely criticize America’s retention of the death penalty.
934
Jack M. Balkin & Stanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI.-KENT L. REV.
49, 54 n.31 (2007) (reprinting George Allen’s comments).
935
510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari).
936
Kirchmeier, supra note 222, at 101.
937
MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE 9
(2000).
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
326
death sentence that is handed out looks like a freakish outlier? Anything might happen,
though one thing remains clear: In retaining capital punishment, America has, through its
silence and inaction, chosen a path that requires the continued employment of
executioners—and that lessens us all by the justice system’s resort to violence, the very
thing that we condemn in killers.
¶204 Already, international law is trending heavily towards abolition, and the swiftly
moving current of change has already swept many nations into the abolitionist column.
America’s death penalty will no doubt eventually collapse under the heavy weight of all
of its intractable problems. Over thirty-five years after Furman, America’s death penalty
is still as arbitrary and capricious as ever. Who gets the death penalty is often more a
function of poverty, geography, or the quality of the defense lawyer
938
than it is a
function of the nature of the crime or anything having to do with logic or rationality. And
nearly 250 years after the publication of Beccaria’s seminal work, the operation of the
death penalty is still rife with wrongful death sentences and widespread racial
discrimination and abuse.
939
In executing people, America now stands in the dubious
company of some of the worst human rights offenders, including the People’s Republic
of China—a country that has used executions for over 5000 years to terrorize its citizens
and crack down on political dissidents.
940
¶205 I have no doubt that a day will come—if not in this generation, then perhaps in the
next—when the death penalty will be abolished in the United States and be held to
violate international law.
941
The climb will be steep because capital punishment is so
deeply engrained in American life and because the urge for revenge—to see a killer’s life
cut short—runs so deep for so many people. As Benjamin Cardozo—who sought the
death penalty’s demise—told a group of New York physicians back in 1928: “The thirst
for vengeance is a very real, even if a hideous, thing; and states may not ignore it till
humanity has been raised to greater heights than any that have yet been scaled in all the
938
See Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the
Worst Lawyer, 103 Y
ALE L.J. 1835 (1994); Stephen Bright, Death by Lottery—Procedural Bar of
Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 W.
VA. L. REV. 679 (1990).
939
See Lawrence C. Marshall, The Innocence Revolution and the Death Penalty, 1 OHIO ST. J. CRIM. L.
573, 575–81 (2004).
940
For historical information on China’s death penalty, see Jeremy T. Monthy, Internal Perspectives on
Chinese Human Rights Reform: The Death Penalty in the PRC, 33 T
EX. INT’L L.J. 189, 190–95 (1998);
Stephen B. Davis, The Death Penalty and Legal Reform in the PRC, 1 J.
CHINESE L. 303, 305–12 (1987);
Qiang Fang & Roger des Forges, Were Chinese Rulers Above the Law? Toward a Theory of the Rule of
Law in China From Early Times to 1949 CE, 44 S
TAN. J. INT’L L. 101, 116, 125, 129, 140 (2008); Liam P.
Deeney, The Abolition of the Death Penalty in International Law, 23 S
UFFOLK TRANSNAT’L L. REV. 803,
812–13 (2000). The history of brutal executions that have been carried out in China—including cutting up
people while alive—are starkly detailed in a recent book. See T
IMOTHY BROOK, JÉRÔME BOURGON &
GREGORY BLUE, DEATH BY A THOUSAND CUTS 1–4, 70, 188–89, 204–07 (2008); see also Joan E.
Hemphill, China’s Practice of Procuring Organs from Executed Prisoners: Human Rights Groups Must
Narrowly Tailor Their Criticism and Endorse the Chinese Constitution to End Abuses, 16 P
AC. RIM L. &
POL’Y J. 431, 434 (2007).
941
Compare William A. Schabas, International Law and Abolition of the Death Penalty, 55 WASH. & LEE
L. REV. 797 (1998) (“While it is still premature to declare the death penalty prohibited by customary
international law, it is clear that we are somewhere in the midst of such a process, indeed considerably
close to the goal.”), with Robert F. Drinan, S.J., Will Religious Teachings and International Law End
Capital Punishment?, 29 S
T. MARY’S L.J. 957, 968 (1998) (“The resistance by the United States to accede
to world law is uniquely visible and dramatic in American’s retention of the death penalty in defiance of
the decisive change in all of the nations most respected by Americans.”).
Vol. 4:2] John D. Bessler
327
long ages of struggle and ascent.”
942
Those heights were not reached during the
Enlightenment or in the twentieth century, and for now they still remain a somewhat
distant summit in the annals of American law.
¶206 But the world community—including the United States—has already acted in
concert to ratify U.N. conventions barring genocide, slavery, torture, and other forms of
cruel and degrading punishments.
943
The death penalty’s abolition would be yet another
step in the direction of a more civilized and humane world and would no doubt please
Enlightenment thinkers such as Cesare Beccaria, Thomas Jefferson and Dr. Benjamin
Rush, if only from the grave.
944
Already, modern-day Italians—the descendents of
Beccaria’s fellow citizens—have lit up the Coliseum in Rome, once the venue of horrific
killings, to honor countries banning executions and to pay homage to the moratorium and
commutation of death sentences that took place in Illinois.
945
942
Benjamin Cardozo, What Medicine Can Do for Law, 5 BULL. OF THE N.Y. ACAD. OF MED. 581, 581, 590
(July 1929). Cardozo—who once predicted his descendants would “look back upon the penal system of to-
day with the same surprise and horror” that his generation did upon being told that 160 crimes were once
punished by death under English law—was not the first person to underestimate the staying power of
capital punishment. Id. at 593. In 1793, Dr. Benjamin Rush, too, had confidently, if mistakenly predicted
that “[h]umanity and reason are likely to prevail so far in our legislature that a law will probably pass in a
few weeks to abolish capital punishment in all cases whatever.” B
ANNER, supra note 1, at 88–89.
Lawyers, it turns out, actually have much to learn from the medical profession, which has been
intimately involved with the legal system for many years now. See Aimee Logan, Who Says So? Defining
Cruel and Unusual Punishment by Science, Sentiment, and Consensus, 35 H
ASTINGS CONST. L.Q. 195,
217–18 (2008); Eileen P. Ryan & Sarah B. Berson, Mental Illness and the Death Penalty, 25 S
T. LOUIS U.
PUB. L. REV. 351, 352 (2006). “Sure, however, I am,” Benjamin Cardozo told a group of physicians in
1929, “that whatever enlightenment shall come will make its way, not through the unaided labors of the
men of my profession, the judges and the advocates, but through the combined labors of men of many
callings, and most of all your own.” Cardozo, supra note 942, at 593. “You hands must hold the torch that
will explore the dark mystery of crime—the mystery, even darker, of the criminal himself, in all the deep
recesses of thought and will and body,” Cardozo wrote. “The law, like medicine,” Cardozo emphasized,
“has its record of blunders and blindness and superstitions and even cruelties.” “Like medicine, however,”
he added, “it has never lacked the impulse of a great hope, the vision of a great ideal.” Id. at 594, 606.
943
None of these human advancements—all reflected in international treaties—came about overnight or
without a sustained fight. Convention on the Prevention and Punishment of the Crime of Genocide, Jan.
12, 1951, 78 U.N.T.S. 277; Steve Charnovitz, The ILO Convention on Freedom of Association and Its
Future in the United States, 102 AM. J. INT’L LAW 90 (2008) (“[T]he heroic determination of Senator
William Proxmire comes to mind. Proxmire was so dedicated to U.S. ratification of the Genocide
Convention that he delivered a speech on the Senate floor every day from 1967 until the resolution of
ratification was adopted in 1986.”) (citing L
AWRENCE J. LEBLANC, THE UNITED STATES AND THE
GENOCIDE CONVENTION 6 (1991)); The Slavery Convention, Sept. 25, 1926, 60 U.N.T.S. 253 (generally
entered into force, Mar. 9, 1927, and entered into force by the United States on Mar. 21, 1929); The
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery, Sept. 7, 1956, 226 U.N.T.S. 3 (generally entered into force on Apr. 30, 1957, and
entered into force by the United States on Dec. 6, 1967); Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (Dec. 10, 1984) (signed by the U.S. on
Apr. 18, 1988 and ratified by the U.S. on Oct. 21, 1994).
944
Before dying on July 4, 1826, the same day his close friend John Adams died, Thomas Jefferson came to
oppose the death penalty. See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821,
http://memory.loc.gov/ (follow “List all Collections” hyperlink; then follow “Jefferson, Thomas ~ Papers ~
1606-1827” hyperlink; then search “autobiography” in “Search Collection”; then follow “Thomas
Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27”) (last visited Aug. 31,
2009); see also Richard K. Neumann Jr., The Revival of Impeachment as a Partisan Political Weapon, 34
H
ASTINGS CONST. L.Q. 161, 213 (2007) (noting that it was Dr. Benjamin Rush who, in 1811, helped
Jefferson and Adams reconcile before they both died on the same Fourth of July).
945
See Allen E. Shoenberger, The European View of American Justice, 36 LOY. U. CHI. L.J. 603, 603
(2005); Peter Fitzpatrick, Life, Death and the Law—and Why Capital Punishment Is Legally Insupportable,
47 C
LEV. ST. L. REV. 483, 490–91 (1999); Gayle Young, On Italy’s Passionate Opposition to Death
NORTHWESTERN JOURNAL OF LAW AND SOCIAL POLICY [2009
328
¶207 As Americans recall the publication of On Crimes and Punishments, Beccaria’s
words—taken to heart by so many of America’s Founding Fathers—are just as relevant
today as they were almost 250 years ago. The future is impossible to predict, but as
abolitionists everywhere look back—and simultaneously look ahead—there is much
reason to hope and continue to press for reform even though America’s last execution is
still over the horizon. The world’s anti-death penalty movement continues apace—as it
has for nearly two and a half centuries—and progress, if sometimes painfully slow, is still
being made. News stories about capital punishment have proliferated exponentially in
just the past few years,
946
and there is every reason to believe that America’s death
penalty may finally be in its death throes. I can only say that, when the United States of
America finally musters up the humanity, fortitude, and courage to do away with state-
sanctioned killing, it will be a glorious sight indeed to behold the Roman Coliseum all lit
up once more in bright, golden light, no doubt in Beccaria’s honor.
Penalty, Feb. 24, 2000, http://www.cnn.com/SPECIALS/views/y/2000/02/young.italydeath.feb24/ (last
visited Aug. 31, 2009).
946
Kirchmeier, supra note 222, at 3 (“Since 1981, the number of news stories about the death penalty has
almost doubled every five years.”). Stuart Banner’s The Death Penalty: An American History, which
chronicles the macabre practice of capital punishment, is just one of many books devoted to the subject to
have come out in recent years. BANNER, supra note 1. The sheer number of books and articles being
written about the death penalty, in fact, confirms just how controversial executions have become in
American life. That histories of capital punishment are already being written strongly suggests to me that
American executions may soon be history, relegated to nothing more than dark, barbaric chapters in world
history, as they should be.
