We The People: Cruel and Unusual Punishment

Summary

Throughline: We The People – Cruel and Unusual Punishment

Throughline, hosted by NPR’s Rund Abdelfattah and Ramtin Arablouei, delves into the intricate history and ongoing debates surrounding the Eighth Amendment of the U.S. Constitution. This episode, titled "We The People: Cruel and Unusual Punishment," explores how interpretations of what constitutes "cruel and unusual punishment" have evolved and continue to shape American society and its legal system.

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1. Introduction: Early Applications of the Eighth Amendment

The episode opens with the historical case of Wallace Wilkerson in Utah during 1877. Wilkerson killed William Baxter in a saloon dispute and was subsequently sentenced to death by firing squad—a method chosen by Mormon settlers who believed in "blood atonement." This case escalated to the U.S. Supreme Court to determine if the firing squad violated the Eighth Amendment's prohibition of cruel and unusual punishment.

Notable Quote:

Carol Steiker (Harvard Law Professor) [02:06]:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

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2. Historical Influences: England’s Bloody Assizes and Enlightenment Thought

The podcast traces the roots of the Eighth Amendment to the oppressive practices in England, particularly under King James II. The Bloody Assizes, led by Judge Jeffreys, were notorious for their brutal punishments following the Duke of Monmouth's failed rebellion in 1685. These events sowed fear and anti-monarchical sentiments, influencing American colonists.

Simultaneously, Enlightenment thinkers like Cesare Beccaria criticized the death penalty and torture, advocating for proportionality in punishment. Beccaria’s seminal work, An Essay on Crimes and Punishments (1764), profoundly impacted American founders, including George Washington and Thomas Jefferson.

Notable Quote:

John Bessler (University of Baltimore School of Law) [12:49]:
"The book was novel because it was the first book really to make a comprehensive case against the death penalty."

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3. Formation of the Eighth Amendment and Constitutional Intent

During the drafting of the U.S. Constitution, the founders aimed to prevent the tyranny they had experienced under British rule. Drawing from both the English Bill of Rights and Enlightenment ideals, they incorporated protections against excessive and cruel punishments. George Mason and James Madison were pivotal in embedding the language that would later become the Eighth Amendment.

Notable Quote:

Carol Steiker [15:07]:
"The framers saw themselves not only as learning from the past, but as going further and breaking from the past."

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4. Early Supreme Court Interpretations: Weems v. United States and Trope v. Dulles

Weems v. United States (1910):
The Supreme Court examined the punishment of Paul Weems in the Philippines, who was sentenced to harsh conditions including perpetual surveillance and loss of rights—a punishment foreign to American laws. The Court ruled this punishment unconstitutional, establishing that the Eighth Amendment should adapt to societal changes.

Notable Quote:

Carol Steiker [24:19]:
"As society changes, norms will change too."

Trope v. Dulles:
In 1956, the Court invalidated the punishment of Albert Trope, a deserter stripped of his citizenship, declaring it cruel and unusual. This case emphasized the evolving nature of constitutional interpretations.

Notable Quote:

Carol Steiker [29:24]:
"The meaning comes from the evolving standards of decency that mark the progress of a maturing society."

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5. Furman v. Georgia (1972): A Landmark Ruling

Furman v. Georgia was a watershed moment where the Supreme Court ruled that the arbitrary application of the death penalty constituted cruel and unusual punishment. This decision effectively halted executions nationwide, highlighting systemic biases and the lack of standardized guidelines for punishment.

Notable Quotes:

Carol Steiker [35:26]:
"Standards of decency have evolved."

Justice Potter Stewart [40:05]:
"These death sentences... are wanton and freakish."

The ruling was fragmented, with all nine justices issuing separate opinions but unanimously agreeing that the death penalty, as administered, was unconstitutional. The immediate aftermath saw hundreds of inmates spared, and the death penalty was temporarily abolished across states.

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6. State Responses and Reinstatement of the Death Penalty

In response to Furman, states swiftly enacted new death penalty statutes designed to address the Court's concerns. These laws introduced guided discretion for juries, aiming to eliminate arbitrary and discriminatory applications. By 1976, the Supreme Court reviewed these new statutes in cases from five states.

Notable Quote:

Carol Steiker [45:35]:
"It treats them as members of an undifferentiated mass subject to the blind infliction of capital punishment."

The Court upheld statutes from Georgia, Florida, and Texas, which provided guidance and required consideration of mitigating evidence. However, it struck down mandatory death sentences in North Carolina and Louisiana, reinforcing the need for judicial discretion and fairness.

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7. Ongoing Debates and Modern Interpretations

Despite these developments, the death penalty remains a contentious issue. Subsequent Supreme Court decisions have further narrowed its application, prohibiting executions for juveniles, individuals with intellectual disabilities, and certain non-murder offenses. Additionally, modern debates extend the Eighth Amendment’s reach to practices like solitary confinement and the treatment of the homeless, arguing these conditions also constitute cruel and unusual punishment.

Notable Quote:

Carol Steiker [49:36]:
"When we ask whether something is cruel and unusual, do we ask whether it was cruel and unusual back in 1789... or do we ask whether it's cruel and unusual to contemporary sensibilities?"

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8. Conclusion: The Evolving Standards of Decency

The episode concludes by reflecting on the Eighth Amendment's enduring relevance. As societal norms shift, so too does the interpretation of what constitutes cruel and unusual punishment. While the death penalty remains legally sanctioned in several states, its application continues to be scrutinized and debated, embodying the Constitution’s dynamic nature.

Notable Quote:

Carol Steiker [49:36]:
"It's a rebuke to the idea that standards of decency evolve in one direction."

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Key Takeaways

• The Eighth Amendment was crafted to prevent oppressive state actions, drawing from historical abuses and Enlightenment philosophy.
• Supreme Court cases like Weems v. US and Furman v. Georgia have significantly shaped the interpretation of "cruel and unusual punishment."
• The death penalty's legality and application remain deeply divisive, reflecting broader societal values and evolving standards of justice.
• Ongoing debates highlight the amendment’s flexibility and the continuous re-examination of what constitutes humane punishment in a modern context.

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This summary captures the essence and detailed discussions of the "We The People: Cruel and Unusual Punishment" episode of Throughline, providing a comprehensive overview for those unfamiliar with the full podcast.

Transcript

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[Rund Abdelfattah]

A note before we get started. This episode includes descriptions and discussion of violent acts, including murder and execution.

[Ramtin Arablouei]

Utah, 1877. A man named Wallace Wilkerson stops by a saloon. He starts by playing a game of cards with another man named William Baxter. An argument starts. Wilkerson takes out a gun, shoots Baxter in the head, killing him, and then he flees. Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed. The next month.

[Carol Steiker]

Utah was not yet a state. It was a federal territory. And it was settled then as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. So he didn't want to use hanging because you don't bleed when you're hanged, but you do bleed when you're shot. And so Mormon territory used the firing squad as a form of execution.

[Ramtin Arablouei]

Wilkerson was sentenced to be executed by a firing squad, a sentence that was challenged all the way up to the US Supreme Court, which had to decide whether a firing squad violated Wallace Wilkerson's Eighth Amendment rights.

[Carol Steiker]

All right, here's the original text of the eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[Rund Abdelfattah]

Cruel and unusual punishments, a term that was adopted from Eng. And meant to protect the people from a tyrannical government. But what was cruel and unusual punishment?

[Carol Steiker]

So what's interesting, the court first says, very hard to know what this means. But then they go on to say, the one thing we can say with some certainty is that it had something to do with torture, that torture's not good. And they referenced things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake. My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting the Supreme Court and capital punishment. In 1878. The question was whether firing squads were cruel and unusual punishment. Court says that's not torturous. It's not unnecessary cruelty. And we know that because, you know, we've used it a lot as a punishment for deserters in wartime. So the court says we don't have a problem with the firing squad as cruel and unusual. Punishment, but they also said we're not entirely sure what its contours are. It just doesn't reach this far.

[Rund Abdelfattah]

On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30ft away. He made a short speech and said he hoped God would forgive him. Then three concealed gunmen fired. He continued breathing for 27 minutes before being pronounced dead. Almost 150 years later, the firing squad is still a legal way to execute someone in five states.

[Dawn Hawkins]

South Carolina's highest court says death row inmates there may choose to die by.

[Rund Abdelfattah]

Firing squad, electric chair or by lethal injection. The death penalty is still constitutional, but debates over what exactly is cruel and unusual are ongoing and wide ranging.

[John Bessler]

The state opted for a never before used nitrogen gas method despite concerns voiced by several human rights groups and the UN that it could amount to torture.

[Carol Steiker]

A recent poll showed a growing number think the death penalty is applied unfairly.

[Alan]

The Supreme Court says it is unconstitutional.

[Dawn Hawkins]

To sentence juveniles to law life in prison without parole for the crime of murder.

[John Bessler]

You've taken the position, as have others, that solitary is torture.

[Isabella]

Solitary is a total degradation of a human life.

[Dawn Hawkins]

I'm uncomfortable using words like solitary and torture.

[John Bessler]

The Supreme Court also cleared the way.

[Ramtin Arablouei]

For cities to enforce bans on homeless.

[Carol Steiker]

People sleeping outside in public places. Every citizen deserves the right to sleep in the richest country in the history of the world.

[Ramtin Arablouei]

So what is cruel and unusual punishment? Who gets to define and decide its boundaries? And what do we know about how the people who wrote the Eighth Amendment imagined its meaning might change? I'm Ramtin Arablouei.

[Rund Abdelfattah]

And I'm Rund Abdelfattah. On today's episode of Throughline from npr, the latest installment in our we the People series where we look at the past, present and future of amendments to the U.S. constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.

[Ramtin Arablouei]

Coming up, the 8th amendment and what cruel and unusual actually means.

[Carol Steiker]

Foreign.

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[Dawn Hawkins]

Is Dawn Hawkins from Lawrence, Kansas. You're listening to Throughline, the show that answers the question, how did we get here?

[Alan]

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[Rund Abdelfattah]

When the founders wrote the 8th amendment, they had a lot on their minds. They were building a completely new government, but they were also still very much influenced by continental Europe and by England, because even there, things had been changing.

[Carol Steiker]

So there was a really unpopular king.

[Rund Abdelfattah]

England in the late 1600s, a century before the US was founded, King James.

[Carol Steiker]

II, who was Catholic and was thought to be favoring Catholics over Protestants. So there was a lot of Catholic Protestant tension.

[Rund Abdelfattah]

The King's own nephew, the Duke of Monmouth, a Protestant, wanted to overthrow him. So in the summer of 1685 he gathered a few thousand men. It would be known as the Mammoth Rebellion. The rebels won a few small battles, but were ultimately defeated by the Royal Army.

[Carol Steiker]

King James was not happy about that and wanted to punish hundreds and hundreds of people who he felt were involved in some way in this rebellion against him.

[Rund Abdelfattah]

The Duke of Monmouth was led to the Tower of London, where he was executed. Then a series of trials began, known.

[Carol Steiker]

Now historically as the Bloody Assizes Court Sessions, in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways. Hundreds were executed, some in really grotesque ways, like being drawn and quartered, which means having your four limbs tied to four horses who would be sent off in different directions to pull your body apart. Hundreds of them were sent to the West Indies as laborers. So essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally, or put in pillories.

[Rund Abdelfattah]

The Bloody Assizes only added to the fear and hatred that many in England already had for King James ii, and a few years later he was overthrown in what's known today as the Glorious Revolution, in which the King's own men deserted him, leaving him to flee the country and die in exile. The seeds of democracy in England had been sown.

[Carol Steiker]

So we're talking four years after the bloody assizes. The English Bill of Rights was passed and makes specific reference to the depredations of King James ii.

[Rund Abdelfattah]

The English Bill of Rights was established by Parliament, outlining civil rights and limiting the power of the monarchy. Included was language that would show up in the US Bill of Rights more than 100 years later that excessive bail.

[Carol Steiker]

Ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[Ramtin Arablouei]

Around the same time, a movement was brewing, one led by intellectuals around Europe who celebrated reason and knowledge and freedom and pushed the world toward more humanitarian ideals. It was the beginning of the Enlightenment, and one Italian philosopher would be especially influential to the American founders. Cesare Beccaria Becqueria was part of a.

[John Bessler]

Group in Milan called the Academy of Fists.

[Ramtin Arablouei]

The Academy of Fists, which definitely sounds like the name of a pop punk band from the 90s, got its name because sometimes their intellectual debates would lead to fights. I know, ironic, but when they weren't fighting, they were thinking.

[John Bessler]

So. He wrote an essay, for example, on smuggling, in which he used algebra to try to calculate the optimal punishment for smuggling. He studied the chances of statistical probabilities of winning a card game.

[Ramtin Arablouei]

And in 1764, he wrote a book opposing torture and the death penalty.

[John Bessler]

That book was translated into English as An Essay on Crimes and Punishments.

[Ramtin Arablouei]

On Crimes and Punishments.

[John Bessler]

The book was novel because it was the first book really to make a comprehensive case against the death penalty.

[Ramtin Arablouei]

The book also argues that any punishment should be proportional to the crime, which wasn't the case in much of Europe at that time. The English Bill of Rights didn't apply to the rest of Europe, where torture was common.

[John Bessler]

And he initially published this book anonymously because his fear of being persecuted.

[Ramtin Arablouei]

And then the book kind of blew up, and he became known even in America.

[John Bessler]

This book became kind of the equivalent of a New York Times bestseller for its day.

[Ramtin Arablouei]

This is John Bessler.

[John Bessler]

I'm a professor of law at the University of Baltimore School of Law, and I also teach as an adjunct professor at the Georgetown University Law Center.

[Ramtin Arablouei]

He's also authored a number of books about the death penalty, including one called the Death Penalty's Denial of Fundamental Human Rights.

[John Bessler]

This book was read by George Washington. James Madison recommended the Library of Congress purchase the book, and Thomas Jefferson had multiple copies of the book in different languages. Benjamin Franklin. A number of founders were enthralled by Becqueria's ideas.

[Ramtin Arablouei]

They would quote Becqueria as tensions between the colonies and Great Britain intensified in the late 1700s. And they were looking to enlighten thinkers like him as they imagined a new country free from the crown. His essay on crimes and punishments was so influential that John says it helped catalyze the American Revolution and what would become America's new criminal justice system.

[Carol Steiker]

The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because. Because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president. But what if he turned out to be like a king?

[Rund Abdelfattah]

To separate themselves from the British and the monarchy? During the American Revolution, states started writing their own constitutions.

[John Bessler]

So we have to look first at the state constitutions, and what we see is that George Mason, who was the drafter of the Virginia Declaration of Rights, he just cobbled together a bunch of the rights that were in the English Bill of Rights, including this prohibition against cruel and usual punishments, and included it in the Virginia Declaration of rights. In 1776.

[Rund Abdelfattah]

It wasn't just Virginia. State after state adopted similar language around cross cruel and unusual punishment in their state constitutions.

[Carol Steiker]

And then when the original Constitution was proposed before there was a Bill of Rights added to it, it was the delegation from Virginia that suggested that the 8th amendment be added to it.

[John Bessler]

And it was Madison, who is also from Virginia, who decided that that language should be included in the U.S. bill of Rights. In 1791, James Madison actually made a short revision to the language in England. The prohibition said ought not. So it was more hortatory in nature. And in the American version it says, shall not inflict cruel and unusual punishments.

[Carol Steiker]

The framers saw themselves not only as learning from the past, but as going further and breaking from the past. These guys were revolutionaries. I mean, we think of them today as like old dead guys, you know, who are on the dollar bill or whatever. But they really saw themselves as revolutionaries in many ways, including in punishment practices.

[Rund Abdelfattah]

But there was still a big question about cruel and unusual.

[John Bessler]

There was some uncertainty about what it actually meant. It's kind of breadcrumbs in a way. When you look back at the history of this originally, there's a few comments that are made.

[Carol Steiker]

At least one person during the discussions of the eighth Amendment proposed eighth Amendment in Congress said, well, what does this mean exactly?

[Rund Abdelfattah]

That comment came from William Smith, a representative from South Carolina, who objected to.

[John Bessler]

The words nor cruel and usual punishments, saying the import of them being too indefinite. So he's encapsulating the idea that this is a very general prohibition. There was other people like James Eardell from North Carolina, who said it would have been ridiculous essentially to categorize all the different punishments that were considered cruel and usual at that time.

[Rund Abdelfattah]

And then there was the most substantial comment from Samuel Livermore of New Hampshire.

[Isabella]

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 infused 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.

[John Bessler]

Livermore suggested. Well, it's going to be for the courts to actually give some, essentially some teeth to this prohibition because we're not defining it explicitly.

[Carol Steiker]

So there was some question about, like what does this language exactly mean and which practices that we now accept as sometimes necessary are going to be deemed to be cruel and unusual going forward.

[John Bessler]

Now, in spite of his objection to the inclusion of this language, the first Congress adopted what became the language of the Eighth Amendment. The record reflects by a considerable majority.

[Rund Abdelfattah]

The Eighth Amendment was ratified in December of 1791, and for the next century that was about it until the Supreme Court gave it another look. That's coming up.

[Ramtin Arablouei]

Foreign.

[Carol Steiker]

Hello, My name is Alan.

[Nazan]

I'm a lord by Nazan. I'm from Lexington, South Carolina, and you're.

[Carol Steiker]

Listening to through line from npr.

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[Carol Steiker]

Part 2 Infamous punishments.

[Ramtin Arablouei]

Once the 8th amendment was ratified in 1791, it didn't really come up again until the end of the 1800s, when two death penalty cases reached the US Supreme Court. There was the case in Utah where the court said the firing squad was constitutional, and a second case where the court allowed the country's first execution by the electric chair. That execution did not go smoothly, but the status quo didn't change. The big turning point for the Eighth Amendment's cruel and unusual punishment clause actually didn't have anything to do with the death penalty at all. It didn't even happen on U.S. soil.

[John Bessler]

The first case where the U.S. supreme Court really weighs in is in a case called Weems versus United States in 1910. And in that case it was actually considering a punishment, kind of a bizarre punishment that was inflicted in the in the Philippines. At that time, the US had essentially control over the island.

[Ramtin Arablouei]

The Philippines actually had its own Supreme Court, but the US Supreme Court could overrule it.

[John Bessler]

And a guy named Paul Weems was was working there and he was convicted of a crime.

[Ramtin Arablouei]

The crime he was convicted of was falsifying records in an alleged attempt to redirect government funds to himself. He was tried according to Philippine law.

[John Bessler]

And was actually sentenced to something called Kadena.

[Ramtin Arablouei]

Kadena translated means chain.

[Carol Steiker]

And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles, and then followed by a form of civil death in which he would be under surveillance and deprived of the right to vote or hold any office until the end of his life. Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

[John Bessler]

The Supreme Court looked at that punishment, said that punishment is unconstitutional.

[Nazan]

It has no fellow in American legislation. Let us remember that it has come to us from a government of a different form and genius from ours. It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character.

[Ramtin Arablouei]

The Court said the Philippine law had, quote, no fellow in American legislation.

[Carol Steiker]

So sort of patting, you know, us Americans as being more advanced, if you will.

[Ramtin Arablouei]

And it went even further to begin to answer some of the big questions that the founders had when they wrote the eighth Amendment.

[Carol Steiker]

And there's some really interesting language written in weems, and this is the language. I'm going to read it to you. Legislation, both statutory and constitutional, is enacted from an experience of evils. But its general language should not therefore be necessarily confined to the form that evil had theretofore taken. Time, works, changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief that gave it birth.

[Ramtin Arablouei]

The court was developing the line of reasoning it had started in the late 1800s, emphasizing that as society changes, norms will change too.

[Carol Steiker]

In former times, being put in the stocks was not considered as necessarily infamous, but at the present day, it might be thought an infamous punishment.

[Ramtin Arablouei]

In Weems, the Court says explicitly, as the views of society change, the way we interpret the 8th amendment should change, too.

[Carol Steiker]

It's weirdest to apply originalism to the sort of deliberately vague provisions of the Constitution, or what some have called more poetically, the majestic generalities of the Constitution, like due process of law or equal protection of the laws, or unreasonable searches and seizures, which has been interpreted to be about reasonable expectations of privacy or cruel and unusual punishments. When the Constitution says that the president needs to be 35 years old, that's not a majestic generality. But when the Constitution says no cruel and unusual punishments, and even at the time it's being debated, the ratifiers are saying, not entirely sure what that means. You know, that it's being passed as a generality to be given content over time.

[Ramtin Arablouei]

By the way, I'm going to use that term, majestic generality in an argument. If anyone's accusing me of being vague, I'm going to be like, it's just my majestic generality. I love that term. Wow. How does weems change the direction of the way we define this? And then how does that then kind of like interplay with the next big case?

[Carol Steiker]

I think weems gives a very poetic and ringing endorsement to a living constitutionalist view that the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope vs Dulles doubles down on that. Albert L. Trope vs John Foster Dulles. Get out.

[John Bessler]

So there was a guy named Albert Trope who was a natural Born citizen of the United States, he was serving in the army in 1944. He actually escaped from an army stockade in in Morocco and on the day following his escape had surrendered himself. And after he was taken into custody, he had been convicted by court martial of desertion and dishonorably discharged and then sentenced to three years at hard labor.

[Carol Steiker]

Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person with really no right to live anywhere and be part of any political community.

[John Bessler]

My position is that Congress has no power to destroy the nationality of native born Americans.

[Carol Steiker]

And the Supreme Court said that's cruel and unusual punishment.

[John Bessler]

The Supreme Court said it violates the idea of the person's right to have rights. You couldn't deprive somebody of their citizenship because that's the basis of where they got their rights to begin with, including the right not to be subjected to cruel and usual punishments. So it was one thing to punish somebody for desertion by imprisonment, but it's a different thing to strip them of their citizenship.

[Carol Steiker]

And to be honest, Justice Frankfurter dissented in saying, well, we execute deserters. So are you really saying that citizenship stripping is a fate worse than death? But that's what the Court says in Trope vs Dulles, that citizenship stripping is cruel and unusual, even if they said we're not at this point willing to say that death is cruel and unusual.

[Rund Abdelfattah]

But there was something bigger buried in the trope decision.

[Carol Steiker]

They said the meaning of the 8th amendment should come from, and this is language the Court thereafter repeats over and over. The meaning comes from the evolving standards of decency that mark the progress of a maturing society.

[Rund Abdelfattah]

Here the US Supreme Court is committing to the idea that what we consider cruel and unusual not only does change, but that it should change according to the evolving standards of decency that mark the progress of a maturing society.

[Carol Steiker]

Now, that's not a lot clearer than cruel and unusual, but it bakes into the test the idea that these standards change, they evolve over time, and that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.

[Rund Abdelfattah]

But coming up, the political winds change.

[Carol Steiker]

Foreign.

[John Bessler]

Hi, I'm isabella from Atlas New York, and you're listening to Throughline from NPR. Yay.

[Alan]

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[Carol Steiker]

Part 3 Wanton and Freakish.

[Unnamed Attorney]

We feel that capital punishment in this case is unusual under the Eighth Amendment for two basic reasons.

[Rund Abdelfattah]

On January 17, 1972, attorneys argued three cases before the Supreme Court known as Furman v. Georgia. In all of them, black men, two from Georgia, one from Texas, had been sentenced to death.

[Unnamed Attorney]

The fact that it is used on identifiable minority and the fact that it has a historical pattern of youth in the south upon blacks.

[Rund Abdelfattah]

When the 8th amendment was written, it didn't apply to black people who were enslaved in the US But a lot had changed. More amendments were passed, like the 13th Amendment abolishing slavery, and the 14th Amendment that gave equal protection of the laws to all people in the US and things were changing globally too.

[Carol Steiker]

So after World War II, not just in the United States, but in Europe and around the world, the death penalty really went into a deep nosedive. I think there was some real skepticism about the authority of governments to be able to order executions in the wake of the fall of Hitler and Mussolini. So the death penalty was very much questioned. It was forbidden in Germany and Italy's post World War II constitutions. And even in the United States, it had really begun to fall into disfavor. And one of many reasons that it fell into disfavor, but a very significant one was its racially discriminatory use, especially in the American South.

[Rund Abdelfattah]

And civil rights activists were paying attention.

[Ramtin Arablouei]

After the winds of the 1950s and 60s, lawyers with the NAACP turned their attention to the death penalty.

[Carol Steiker]

They said, you know what? We should make this our next big thing. We should mount a constitutional litigation campaign to end the American death penalty as a matter of racial justice.

[Ramtin Arablouei]

There were historical reasons to launch this fight too. The 8th amendment banned cruel and unusual punishment. So some Southern states believe that meant a punishment had to be both to be unconstitutional, which means business as usual for white slave owners.

[John Bessler]

If the enslaved were simply whipped or lashed with regularity, then it would not be an unusual punishment because it was. It was a common punishment.

[Ramtin Arablouei]

Now, almost 200 years later, civil rights activists were trying to make the case that the way the death penalty was applied was unusual. And they started gathering data.

[Carol Steiker]

They sent like a kind of sort of form of Freedom Riders. They sent a bunch of young people down to the south to go to courthouses. This is before computers. If you wanted to find evidence about cases, you had to go to the Courthouses and pull records. And they sent, you know, teams of young people down to southern courthouses to try to build a record about the racially discriminatory use of the death penalty.

[Ramtin Arablouei]

Attorneys argued before the supreme court that black men were overwhelmingly sentenced to death when compared to white men convicted of the same crimes.

[Unnamed Attorney]

When a black man in Texas is convicted of rape, he has an 88% chance of receiving the death penalty.

[Carol Steiker]

But as this litigation campaign picked up speed, they began to throw everything at the wall, every argument they could think of against the death penalty. And one of the big arguments was, standards of decency have evolved.

[Ramtin Arablouei]

Another one was that the death penalty could seem really arbitrary, and it varied from state to state.

[Carol Steiker]

In the 1960s, the death penalty was much more broadly authorized than it is today. Like I've already said, you could get it for rape in addition to murder, but you could also get it in some states for armed robbery, for kidnapping, for arson. So it was very broadly authorized. And juries decide whether the death penalty should be imposed, not judges. And they were given no instructions whatsoever about who should get the death penalty. They were simply told, it is in your sole discretion, according to your conscience, whether to impose death or life or sometimes a lesser punishment. And so that was thought to be a due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.

[Ramtin Arablouei]

It was quiet until the end of the supreme court's term in June.

[Carol Steiker]

And then, astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the eighth amendment.

[Ramtin Arablouei]

That meant all executions had to stop until states changed their laws.

[Carol Steiker]

The headline in the New York times that announced that decision was the same banner as had announced men landing on the Moon three years previously in 1969. It was that big a deal and that much of a surprise. Like, nobody thought that that's what was going to happen, but that's what happened.

[Dawn Hawkins]

It's restored my faith in the supreme court. The first that I heard was cheering and clapping of the hands. Everyone was real happy. Of course, it's kind of a shock.

[Carol Steiker]

I guess you could say so. Furman v. Georgia, 1972. The death penalty in the United States is, at one stroke of a pen, abolished across all 40 states that had it and the federal government.

[Rund Abdelfattah]

Hundreds of people on death row were spared. All had their sentences reduced to life terms, and many of them were released on parole.

[Dawn Hawkins]

Warden Jack Caldwell of the Georgia state prison went up to the cell block to tell the 22 prisoners under death sentence. The good news. But the warden conceded to me that he was not entirely clear about the decision and its full meaning.

[Carol Steiker]

The grounds for the decision were really hard to say.

[Dawn Hawkins]

I explained to them that I was.

[Carol Steiker]

Still confused because there are nine people on the Supreme Court, and every single one of them wrote his own opinion in this case. So there are nine different opinions in Furman v. Georgia.

[Ramtin Arablouei]

Wow. That's not.

[Carol Steiker]

That's not like that did not happen. No, that did not happen.

[Rund Abdelfattah]

Nine justices, nine opinions. All of them suggested abolishing or limiting the death penalty in some way. But that also created confusion.

[Carol Steiker]

It's a 5:4 decision, very slim majority. So there are five majority opinions and four dissents. None of the people in the majority join anyone else's majority opinion. Some of the dissenters join in each other's dissents, but there's, you know, nine of them, and they all have something a little bit different to say.

[Rund Abdelfattah]

Two Justices said the death penalty itself was unconstitutional. Another Justice, William O. Douglas, said that any law that treats people unequally is unconstitutional.

[Carol Steiker]

He has a line that I think is really powerful where he says, when you have this, like, broad authorization and no standards to. To sentencing juries, a system like that is pregnant with discrimination. It's pregnant with discrimination. It will give birth to discrimination because it will give people's biases play in the decision making process.

[Rund Abdelfattah]

The court had also heard a death penalty case the year before. And in the end, many people believe the Furman decision came down to just two Justices, Potter Stewart and Byron White, who changed their minds.

[Carol Steiker]

And they basically said the problem is not that Europe is getting rid of the death penalty and that it's per se unconstitutional. Instead, Stewart and White said, it's the way that it's being applied with this broad authorization and no instructions. The most famous line is Justice Steven Stewart's line. He said, these death sentences in these cases are cruel and unusual. The way being struck by lightning is cruel and unusual. There's just no rhyme or reason about who gets the death penalty. And, you know, we would say it's like totally rando is what we would say today. What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.

[Ramtin Arablouei]

And it's not that the punishment itself is intrinsically wrong, it's the way that that punishment is being applied, the lack of standardization for this, for when it is applied, that makes it something that's just untenable to still allow in the country.

[Carol Steiker]

Exactly.

[Ramtin Arablouei]

We still have the death penalty in America, though. What the hell happened?

[Carol Steiker]

Yeah, well, what happened was, I think the justices miscalculated where standards of decency had evolved, too, because there was a tremendous backlash. To firm it, someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. Between 1972 and 1976, 35 states and the federal government passed new death penalty statutes, attempting to give the guidance that Stewart and White said was lacking in Furman so that they could keep the death penalty and they start sentencing people to death.

[Ramtin Arablouei]

If you could sum up some of the basic reasons for why states and also the federal government quickly pushed back against this, what were their justifications?

[Carol Steiker]

Charles Manson got off of death row. Sirhan Sirhan, who had just shot Bobby Kennedy, you know, he got off of death row. So people were kind of outraged, like Charles Manson and Sirhan Sirhan are not going to get executed in California. Almost instantaneously, California has all of these initiatives and referendas, and the people passed by initiative. They amended the California Constitution to allow the death penalty. You might have thought, doesn't California still have the death penalty? Yes, it does. But how do they do that if the California Constitution says you can't have it? Because the people instantaneously amended the Constitution after the California Supreme Court abolished it constitutionally.

[Ramtin Arablouei]

So 35 states and the federal government write new laws. Death rows around the country start to fill up again.

[Carol Steiker]

There's no way the court can ignore that. It has to decide whether these new statutes are okay or not.

[Dawn Hawkins]

The Supreme Court this week agreed to review the constitutionality of a sentence of death imposed by a North Carolina court on Jesse T. Fowler.

[Carol Steiker]

They don't wait very long.

[Ramtin Arablouei]

In 1976, just four years later, the Supreme Court agreed to hear arguments for new death penalty laws from five states.

[Carol Steiker]

Texas, North Carolina, Louisiana, Georgia, and Florida. What's interesting is there's two buckets of kinds of statutes. It upholds three of these new statutes, the ones from Georgia, Florida, and Texas, because it says that they do guidance, they guide the jury. They give the jury something to think about other than, you know, according to your conscience. So they say, okay, those statutes are okay.

[Ramtin Arablouei]

But the Supreme Court strikes down the laws in North Carolina and Louisiana because those statutes, the court said, proposed mandatory death sentences for certain crimes in 76.

[Carol Steiker]

The Supreme Court said, yeah, no, you can't have mandatory statutes. One is, they said, it's not really going to take care of the problem of discretion because juries, if they don't want the person to get the death penalty, they'll just find them guilty of second degree murder. You know, that's always open to them. So it's just going to drive the discretion underground rather than getting rid of it.

[Ramtin Arablouei]

So the court ruled that in order to sentence people to death, juries had to hear, quote, mitigating evidence, evidence that might make them reconsider execution, like whether the convicted had a history of abuse, mental health issues, or even remorse. Without that step, the court said, the death penalty is unconstitutional.

[Carol Steiker]

This is very poetic. It says it treats them as members of an undifferentiated mass subject to the blind infliction of capital punishment. And it doesn't give any consideration to the diverse frailties of humankind. I love that. Diverse frailties of humankind.

[Ramtin Arablouei]

The diverse frailties of humankind.

[Carol Steiker]

And the supreme court said, you know, it's totally okay to have mandatory non capital sentences. We have a lot of them, actually, mandatory sentences for all kinds of things. But the supreme court said death is different. It's different in kind from any other punishment in its severity and its irrevocability. And therefore, we have to attend to the diverse frailties of humankind before we sentence someone to death.

[Ramtin Arablouei]

So it allows it, but with limitations.

[Carol Steiker]

Correct. It allows the death penalty only if jurors are guided by some sentencing regime that gives them something to think about other than whatever they want. And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.

[Rund Abdelfattah]

Still, the death penalty itself passed the evolving standards of decency test. The Court noted that 35 states had enacted new laws providing for the death penalty, undercutting the argument that American society had outgrown it.

[Ramtin Arablouei]

But since 1958, the Supreme Court has narrowed the scope of who can be sentenced to death. So people with intellectual disabilities, or who were juveniles at the time of the crime, or people who have raped but not murdered. The supreme court has ruled that they cannot be executed.

[Rund Abdelfattah]

And in recent years, advocates have argued for broadening our understanding of what's cruel and unusual even more, suggesting that things like solitary confinement qualify forced labor, or banning people from sleeping outside when they have nowhere else to go. Meanwhile, others have tried to enact harsher punishments for certain crimes.

[Ramtin Arablouei]

Cesare Beccaria, the Italian philosopher who inspired much of the American founders thinking around cruel and unusual punishment himself, quoted another famous philosopher, the French Montesquieu. He wrote that any punishment that goes beyond necessity is tyrannical.

[John Bessler]

So necessity was seen as the dividing line between liberty and tyranny. But if you apply that same punishment principle today, that any punishment that goes beyond necessity is tyrannical, there is no need for the death penalty because people are already incarcerated in very secure facilities. That core principle that was actually embraced, embraced in the founding era is that any punishment that goes beyond necessity, and some of the some of the founders actually talked about goes beyond absolute necessity, was considered tyrannical. That's the principle that the US Supreme Court unfortunately has never really addressed fully in their in its jurisprudence in the Eighth Amendment. But it's a core value or belief that existed in the 18th century that has to be, I think, taken into consideration when one one is reviewing a punishment like the death penalty.

[Rund Abdelfattah]

Support for the death penalty has been falling, according to Gallup polling, and there's still controversy around how it's applied. But a majority of Americans still favor the death penalty for people convicted of murder, and states are still passing laws that push the limits of the Eighth Amendment.

[Carol Steiker]

When we ask whether something is cruel and unusual, do we ask whether it was cruel and unusual back in 1789 when they were writing the Constitution, or do we ask whether it's cruel and unusual to contemporary sensibilities? It's kind of a rebuke to the idea that standards of decency evolve in one direction.

[Rund Abdelfattah]

That's it for this week's show. I'm Rund Abdelfatah.

[Ramtin Arablouei]

I'm Ramtin Arabdui and you've been listening to Throughline from npr.

[Rund Abdelfattah]

This episode was produced by me and.

[Ramtin Arablouei]

Me and Lawrence Wu, Julie K, Anya.

[Carol Steiker]

Steinberg, Casey Miner, Christina Kim, Devin Kadayama, Sarah Wyman, Irene Noguchi.

[Rund Abdelfattah]

Voiceover work in this episode was also done by David Katayama, Sarah Wyman, Anya Steinberg and Evan Katayama.

[Ramtin Arablouei]

Thank you to Johannes Durkee, Tony Cavan, Nadia Lansing, Keandre Starling, Johnette Oakes, Edith Chapin, and Colin Campbell.

[Rund Abdelfattah]

Fact checking for this episode was done by Kevin Voelkel. This episode was mixed by Jimmy Keeley. Music for this episode was was composed by Ramtin and his band Drop Electric.

[Carol Steiker]

Which includes Anya Mizani, Naveed, Marvi, Sho Fujiwara.

[Ramtin Arablouei]

And finally, if you have an idea or like something you heard on the show, write [e-mail] thanks for listening.

[Alan]

Support for this podcast and the following message come from Cunard inviting you to take in the sounds of Alaska. Relax on spacious decks with 360 degree views as you cruise through Glacier Bay National Park. Hear the call of a bald eagle or the song of a humpback whale as you take in the beauty of Alaska's snow capped mountains from your own private balcony. More at Cunard this message comes from adp Whether it's a last minute policy change or adding a new company holiday, anything can change the world of work. From HR to payroll, ADP helps businesses take on the next anything. ADP always designing for people Support for this podcast and the following message come from arm ARM CEO Rene Haas discusses leadership and the role of AI in national security with the head of Palantir's defense business, Mike Gallagher, in the latest episode of Tech Unheard, available on all podcast platforms.