The death penalty
Does execution by lethal
violate the U.S. Constitution?
The eighth amendment to the U.S. Constitution states: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." 1
There was some opposition to the adoption of this amendment in 1789. One member
of Congress complained:
"... 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 would 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.'' 2
Various U.S. Supreme Court decisions have attempted to interpret what type of
punishments are and are not "cruel and unusual:"
||Wilkerson v. Utah, 99 U.S. 130, 135: In 1878, the court ruled:
"... it is safe to affirm that punishments of torture [such as drawing and
quartering, embowelling alive, beheading, public dissecting, and burning
alive], and all others in the same line of unnecessary cruelty, are
forbidden by that amendment to the Constitution.'' The court upheld the use
of execution by firing squad in Utah, which was then a
Mormon-dominated territory. The Mormon Church taught a unique
interpretation of the concept of "blood atonement:"
that very serious sins could be forgiven if the sinner is killed and his
blood mixed with the earth. The state has
since discontinued the firing squad option.
||Kemmler, 136 U.S. 436: In 1890, the court approved executions
using the electric chair, but did it under the Fourteenth Amendment's "due
process" clause, not the Eighth Amendment's "cruel and unusual punishment"
||Louisiana ex rel. Francis v. Resweber, 329 U.S. 459: In 1947 the
court ruled in an unusual case where an botched attempted electrocution only injured
a convict on death row. This raised the question whether a second try at
electrocution would be cruel and unusual. A divided court said that the
second attempt could proceed.
||Trop v. Dulles 356 U.S. 86: In 1958, a divided court decided that
cancelling the citizenship of a natural born American was cruel and unusual
punishment "more primitive than torture" because it resulted in "the
total destruction of the individual's status in organized society."
References and footnotes:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Cruel and Unusual Punishments," Find Law, at:
- 1 Annals of Congress 754 (1789).
"Annotations: Cruel and Unusual Punishments," Find Law, at:
Court hears challenge of lethal injection procedure," Knight Ridder Tribune
Business News, 2008-JAN-07, at: