Pod Insights Throughline We The People: Cruel and Unusual Punishment About this episode The Eighth Amendment. What is cruel and unusual punishment? Who gets to define and decide its boundaries? And how did the Constitution's authors imagine it might change? Today on Throughline's We the People: the Eighth Amendment, the death penalty, and what cruel and unusual really means.
To access bonus episodes and listen to Throughline sponsor-free, subscribe to Throughline+ via Apple Podcasts or at plus.npr.org/throughline.
See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.
NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy
Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 This message comes from the Southern Environmental Law Center. No one voted for dirty air and water. That's why S E L C is fighting back to defend the healthy environment everyone depends on. Because it's not political, it's fundamental. Learn more at S E L C dot org.
0:17 Rund Abdelfatah? A note before we get started. This episode includes descriptions and discussion of violent acts, including murder and execution.
0:37 Speaker 02 Utah, 1877. A man named Wallace Wilkerson stops by a saloon.
0:45 Speaker 02 He starts by playing a game of cards with another man named William Baxter.
0:52 Speaker 02 An argument starts.
0:56 Speaker 02 Wilkerson takes out a gun, shoots Baxter in the head, killing him. And then, he flees.
1:09 Speaker 02 Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed the next month.
1:17 Speaker 03 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.
1:50 Speaker 02 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.
2:06 Speaker 03 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.
2:22 Rund Abdelfatah? Cruel and unusual punishments, a term that was adopted from England and meant to protect the people from a tyrannical government. But what was cruel and unusual punishment?
2:35 Speaker 03 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."
2:48 Speaker 03 And they reference things that they would be pretty sure would be cruel and unusual punishment: drawing and quartering, disemboweling, burning at the stake.
3:02 Speaker 03 My name is Carol Steicher. I'm a professor at Harvard Law School. I'm the author of "Courting Death: The Supreme Court and Capitol Punishment."
3:15 Speaker 03 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."
3:41 Speaker 03 But they also said, "We're not entirely sure what its contours are. It just doesn't reach this far."
3:55 Rund Abdelfatah? On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30 feet away.
4:05 Rund Abdelfatah? He made a short speech and said he hoped God would forgive him. Then, three concealed gunmen fired.
4:15 Rund Abdelfatah? He continued breathing for 27 minutes before being pronounced dead.
4:27 Rund Abdelfatah? Almost 150 years later, the firing squad is still a legal way to execute someone in five states.
4:34 Speaker 04 South Carolina's highest court says death row inmates there may choose to die by firing squad, electric chair, or by lethal injection.
4:43 Rund Abdelfatah? The death penalty is still constitutional, but debates over what exactly is cruel and unusual are ongoing and wide-ranging.
4:52 Speaker 05 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.
5:03 Speaker 06 A recent poll showed a growing number think the death penalty is applied unfairly.
5:07 Speaker 07 The Supreme Court says it is unconstitutional to sentence juveniles to life in prison without parole for the crime of murder. You've taken the position, as have others, that solitary is torture.
5:19 Speaker 02 Solitary is a total degradation of a human life. I'm uncomfortable using words like solitary and torture. The Supreme Court also cleared the way for cities to enforce bans on homeless people sleeping outside in public places. Every citizen deserves the right to sleep in the richest country in the history of the world.
5:44 Speaker 02 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.
5:59 Rund Abdelfatah? And I'm Rande Abdelfatah. 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 US Constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.
6:21 Speaker 02 Coming up, the Eighth Amendment and what cruel and unusual actually means.
6:42 Speaker 00 This is Dawn Hawkins from Lawrence, Kansas. You're listening to Throughline, the show that answers the question, how did we get here? Stay tuned for the following announcements and messages from our sponsors.
6:54 Speaker 02 This message comes from BetterHelp. Your brain has limited storage, so why is it still holding on to that embarrassing moment from years ago? BetterHelp is an online therapy platform that gives you space to talk about what's taking up too much of yours. BetterHelp is now in-network with more than 125 health plans with many copays as low as $15 for eligible members. And if you don't have eligible insurance, you can still get 20% off your first month. Visit betterhelp.com/NPR. Cost and coverage may vary. Discount cannot be combined with insurance. This message comes from Capella University. You know that feeling when there's a spark building inside you, that you were meant for more?
7:36 Speaker 02 That's your own drive, pushing you towards what's next. Capella University gets that. With their FlexPath learning format, you can set the pace and earn your degree without putting life on pause. You've built experience and know what you're capable of. Now, this is your time to turn that momentum into more. The only real question is, what can't you do? Learn more at capella.edu.
8:03 Speaker 00 This message comes from DonorsChoose. Right now, there's a student that needs something. Maybe it's books, art supplies, or a science kit that will unlock their learning potential, and you can be the reason they get it. With DonorsChoose, you'll fund real classroom projects from real teachers, so your gift goes exactly where it's needed most. Because when students start with what they need, they're ready to build confidence, discover new ideas, and succeed all year long. Give what students need right when they need it at donorschoose.org-local. Part One.
8:38 Rund Abdelfatah? Bloody Assizes.
8:42 Rund Abdelfatah? When the founders wrote the Eighth 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.
9:02 Speaker 03 So there was a really unpopular king.
9:06 Rund Abdelfatah? England in the late 1600s, a century before the US was founded.
9:11 Speaker 03 King James II, who was Catholic and was thought to be favoring Catholics over Protestants. So there was a lot of Catholic Protestant tension.
9:23 Rund Abdelfatah? The king's own nephew, the Duke of Mammoth, 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.
9:43 Speaker 03 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.
9:57 Rund Abdelfatah? The Duke of Mammoth was led to the Tower of London, where he was executed. Then a series of trials began.
10:05 Speaker 03 Known 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.
10:20 Rund Abdelfatah? Hundreds were executed.
10:23 Speaker 03 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.
10:37 Speaker 03 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.
10:56 Rund Abdelfatah? 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.
11:22 Speaker 03 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.
11:35 Rund Abdelfatah? 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.
11:50 Speaker 06 That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
12:03 Speaker 02 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. Beccaria was part of a group in Milan called the Academy of Fists. 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. So he wrote an essay, for example, on smuggling,
12:47 Speaker 02 in which he used algebra to try to calculate the optimal punishment for smuggling.
12:53 Speaker 02 studied the chances of statistical probabilities of winning a card game. And in 1764, he wrote a book opposing torture and the death penalty. That book was translated into English as an essay on crimes and punishments. On crimes and punishments. The book was novel because it was the first book really to make a comprehensive case against the death penalty. 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. And he initially published this book anonymously because of his fear of being persecuted. And then the book kind of blew up, and he became known, even in America.
13:39 Speaker 02 This book became kind of the equivalent of a New York Times bestseller for today. This is John Bestler. 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. He's also authored a number of books about the death penalty, including one called "The Death Penalty's Denial of Fundamental Human Rights." This book was was read by George Washington. James Madison recommended to the Library of Congress, purchased the book. And Thomas Jefferson had multiple copies of the book in different languages.
14:14 Speaker 02 Benjamin Franklin, a number of founders were enthralled by Beccaria's ideas. They would quote Beccaria 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.
14:49 Speaker 03 The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening 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?
15:18 Rund Abdelfatah? To separate themselves from the British and the monarchy, during the American Revolution, states started writing their own constitutions.
15:27 Speaker 03 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 unusual punishments, and included it in the Virginia Declaration of Rights in 1776.
15:49 Rund Abdelfatah? It wasn't just Virginia. State after state adopted similar language around cruel and unusual punishment in their state constitutions.
15:58 Speaker 03 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 Eighth Amendment be added to it. And it was Madison, who was also from Virginia, who decided that that language should be included in the US 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. The framers saw themselves not only as learning from the past,
16:43 Speaker 03 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.
17:02 Rund Abdelfatah? But there was still a big question about cruel and unusual.
17:07 Speaker 03 There was some uncertainty about what it actually meant.
17:12 Speaker 03 Bread crumbs in a way.
17:15 Speaker 03 When you look back at the history of this originally, there's a few comments that are made. At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?
17:31 Rund Abdelfatah? That comment came from William Smith, a representative from South Carolina. Who objected to the words nor cruel and unusual 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 Iredell from North Carolina, who said it would have been ridiculous essentially to categorize all the different punishments that were considered cruel and unusual at that time. And then there was the most substantial comment from Samuel Livermore of New Hampshire.
18:05 Speaker 05 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 veil? 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 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.
18:48 Speaker 05 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.
19:00 Speaker 05 Livermore suggested, well, it's going to be for the courts to actually give some,
19:05 Speaker 03 essentially some teeth to this prohibition because we're not defining it explicitly. 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? Now, in spite of his objection to the inclusion of this language, the first Congress adopted what became the language of the Eighth Amendment.
19:32 Rund Abdelfatah? The record reflects by a considerable majority.
19:39 Rund Abdelfatah? 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.
20:08 Speaker 00 Hello, my name is Alan. I'm Alaric Pavanathan. I'm from Lexington, South Carolina, and you're listening to Throughline from NPI.
20:16 Speaker 00 Stay tuned for the following announcements and messages from our sponsors. This message comes from Capella University. You know that feeling when there's a spark building inside you? That you were meant for more? That's your own drive, pushing you towards what's next. Capella University gets that. With their FlexPath learning format, you can set the pace and earn your degree without putting life on pause. You've built experience and know what you're capable of. Now, this is your time to turn that momentum into more. The only real question is, what can't you do? Learn more at capella.edu. This message comes from Donors Choose. Right now, there's a student that needs something.
21:00 Speaker 00 Maybe it's books, arts supplies, or a science kit that will unlock their learning potential. And you can be the reason they get it. With Donors Choose, you'll fund real classroom projects from real teachers, so your gift goes exactly where it's needed most. Because when students start with what they need, they're ready to build confidence, discover new ideas, and succeed all year long. Give what students need right when they need it at donorschoose.org-local.
21:27 Speaker 06 This message comes from HomeServe. Got a burst pipe, HVAC outage, or electrical issue? HomeServe has your back. Go to homeserve.com/audio for 50% less your first year. Savings compared to renewal price. Boyd and Florida.
21:43 Speaker 02 Two: Infamous Punishments.
21:48 Speaker 02 Once the Eighth 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 the 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 US soil.
22:28 Speaker 05 The first case where the US 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 Philippines. At that time, the US had essentially control over the island.
22:48 Speaker 02 The Philippines actually had its own Supreme Court, but the US Supreme Court could overrule it.
22:57 Speaker 05 And a guy named Paul Weems was working there, and he was convicted of a crime.
23:02 Speaker 02 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.
23:12 Speaker 05 And was actually sentenced to something called kadina.
23:16 Speaker 02 Kadina, translated, means chain.
23:20 Speaker 03 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,
23:33 Speaker 03 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.
23:49 Speaker 03 Something that was a Philippine punishment, not really something that you would have found in the United States at the time.
23:57 Speaker 03 And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.
24:05 Speaker 05 The Supreme Court looked at that punishment and said,
24:07 Speaker 04 That punishment is unconstitutional.
24:10 Speaker 06 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.
24:36 Speaker 02 The court said the Philippine law had, quote, "no fellow in American legislation."
24:42 Speaker 03 So sort of padding, you know, us Americans as being more advanced, if you will.
24:49 Speaker 02 And it went even further to begin to answer some of the big questions that the founders had when they wrote the Eighth Amendment.
24:56 Speaker 03 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."
25:36 Speaker 02 The court was developing the line of reasoning it had started in the late 1800s, emphasizing that as society changes, norms will change too.
25:46 Speaker 03 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.
25:57 Speaker 02 In Weems, the court says explicitly, "As the views of society change, the way we interpret the Eighth Amendment should change too."
26:08 Speaker 03 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 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
26:49 Speaker 03 are saying, not entirely sure what that means. You know that it's being passed as a generality to be given content over time.
27:00 Speaker 02 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?
27:21 Speaker 03 I think Weems gives a very poetic and ringing endorsement to a living constitutionalist view, you know, 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 versus Dulles doubles down on that.
27:50 Speaker 03 Albert L. Trope versus John Foster Dulles, get out. 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 Morocco.
28:09 Speaker 05 And on the day following his escape, had surrendered himself.
28:14 Speaker 03 And after he was taken into custody.
28:16 Speaker 05 He had been convicted by court martial of desertion and dishonor in discharge.
28:22 Speaker 03 And then sentenced to three years of hard labor. 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.
28:40 Speaker 05 My position is that Congress has no power to destroy the nationality of a native-born American.
28:48 Speaker 03 And the Supreme Court said, "That's cruel and unusual punishment."
28:55 Speaker 06 The Supreme Court said it violates the idea of a 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 unusual 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.
29:16 Speaker 03 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 Trop versus Dolls, 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?
29:39 Rund Abdelfatah? But there was something bigger buried in the Trop decision.
29:43 Speaker 03 They said the meaning of the Eighth 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."
30:01 Rund Abdelfatah? 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.
30:18 Speaker 03 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 in punishment.
30:52 Speaker 00 But coming up, the political winds change.
31:06 Speaker 06 Hi, I'm Isabel from Albuquerque. And you're listening to Throughline from NDR. Yay!
31:13 Speaker 00 Stay tuned for the following announcements and messages from our sponsors.
31:17 Speaker 07 This message comes from Capella University. You know that feeling when there's a spark building inside you? That you were meant for more? That's your own drive, pushing you towards what's next. Capella University gets that. With their FlexPath learning format, you can set the pace and earn your degree without putting life on pause. You've built experience and know what you're capable of. Now, this is your time to turn that momentum into more. The only real question is, what can't you do? Learn more at capella.edu.
31:51 Speaker 00 This message comes from Donors Choose. Right now, there's a student that needs something. Maybe it's books, art supplies, or a science kit that will unlock their learning potential. And you can be the reason they get it. With Donors Choose, you'll fund real classroom projects from real teachers, so your gift goes exactly where it's needed most. Because when students start with what they need, they're ready to build confidence, discover new ideas, and succeed all year long. Give what students need right when they need it at donorschoose.org-local. This message comes from HomeServe. Got a burst pipe, HVAC outage, or electrical issue? HomeServe has your back. Go to homeserve.com/audio for 50% less your first year.
32:35 Speaker 00 Savings compared to renewal price. Boyd & Florida. Part Three.
32:41 Rund Abdelfatah? And freakish.
32:46 Speaker 04 We feel that capital punishment in this case is unusual under the Eighth Amendment for two basic reasons.
32:58 Rund Abdelfatah? On January 17, 1972, attorneys argued three cases before the Supreme Court, known as Furman versus Georgia. In all of them, black men, two from Georgia, one from Texas, had been sentenced to death.
33:16 Speaker 04 The fact that it is used on identifiable minority
33:21 Speaker 04 and the fact that it has a historical pattern of use in the South upon blacks.
33:27 Rund Abdelfatah? When the Eighth 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.
33:49 Speaker 03 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,
34:34 Speaker 03 but a very significant one, was its racially discriminatory use, especially in the American South.
34:43 Rund Abdelfatah? And civil rights activists were paying attention.
34:49 Speaker 02 After the winds of the 1950s and 60s, lawyers with the NAACP turned their attention to the death penalty.
34:58 Speaker 03 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.
35:13 Speaker 02 There were historical reasons to launch this fight, too. The Eighth Amendment banned cruel and unusual punishment. So some southern states believed that meant a punishment had to be both to be unconstitutional, which means business as usual for white slave owners.
35:31 Speaker 05 If the enslaved were simply whipped or lashed with regularity, then it would not be an unusual punishment because it was a common punishment.
35:40 Speaker 02 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.
35:53 Speaker 03 They sent like a kind of a 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.
36:20 Speaker 02 Attorneys argued before the Supreme Court that black men were overwhelmingly sentenced to death when compared to white men convicted of the same crimes. When a black man in Texas is convicted of rape,
36:34 Speaker 03 he has an 88% chance of receiving the death penalty. 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.
36:59 Speaker 02 Another one was that the death penalty could seem really arbitrary, and it varied from state to state.
37:06 Speaker 03 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."
37:50 Speaker 03 And so that was thought to be a due process problem, if there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.
38:08 Speaker 02 It was quiet until the end of the Supreme Court's term in June. And then...
38:14 Speaker 03 Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.
38:29 Speaker 02 That meant all executions had to stop until states changed their laws.
38:35 Speaker 03 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 gonna happen, but that's what happened. It's restored my faith in the Supreme Court. And the first that I heard was tears.
39:03 Speaker 05 And then clapping of hands. Everyone was real happy, of course. Kind of a shock, I guess you could say.
39:10 Speaker 03 So Furman versus 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.
39:26 Rund Abdelfatah? Hundreds of people on death row were spared. All had their sentences reduced to life terms, and many of them were released on parole.
39:35 Speaker 04 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.
39:47 Speaker 03 The grounds for the decision were really hard to say.
39:52 Speaker 05 I explained to them that I was still confused.
39:55 Speaker 03 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 versus Georgia.
40:05 Speaker 07 Wow. That's not, that's not like...
40:08 Speaker 03 That does not happen. No, that does not happen.
40:11 Rund Abdelfatah? Nine justices, nine opinions. All of them suggested abolishing or limiting the death penalty in some way. But that also created confusion.
40:21 Speaker 03 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.
40:45 Rund Abdelfatah? Two justices said the death penalty itself was unconstitutional. Another justice, William O. Douglas, said that any law that treats people unequally is unconstitutional.
40:56 Speaker 03 He has a line that I think is really powerful, where he says, "When you have this, like, broad authorization and no standards 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...
41:18 Speaker 03 People's biases, you know, play in the decision-making process.
41:24 Rund Abdelfatah? 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.
41:38 Speaker 03 And they basically said, the problem is not that, you know, 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 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.
42:18 Speaker 03 What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.
42:29 Speaker 02 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.
42:49 Speaker 03 Exactly.
42:51 Speaker 02 We still have the death penalty in America, though. What, what, what the hell happened?
42:56 Speaker 03 Yeah, well, what happened was, I think, the justices miscalculated where standards of decency had evolved to, because there was...
43:10 Speaker 03 A tremendous backlash to Ferman. Someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. And 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 Ferman, so that they could keep the death penalty. And they start sentencing people to death.
43:47 Speaker 02 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?
43:58 Speaker 03 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, with like, almost instantaneously, you know, California has all of these initiatives and referendums, and the people passed by initiative, they amended the California Constitution to allow the death penalty. So 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
44:43 Speaker 03 Court abolished it constitutionally.
44:48 Speaker 02 So 35 states and the federal government write new laws. Death rows around the country start to fill up again.
44:57 Speaker 03 There's no way the court can ignore that. It has to decide whether these new statutes are OK or not.
45:05 Speaker 00 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.
45:15 Speaker 03 They don't wait very long.
45:18 Speaker 02 In 1976, just four years later, the Supreme Court agreed to hear arguments for new death penalty laws from five states.
45:28 Speaker 03 Texas, North Carolina, Louisiana, Georgia, and Florida.
45:38 Speaker 03 What's interesting is there's two buckets of kinds of statutes. Like, 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.
46:06 Speaker 02 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.
46:19 Speaker 03 In 76, 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 was a, that's always open to them. So it's just going to drive the discretion underground rather than getting rid of it.
46:44 Speaker 02 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.
47:07 Speaker 03 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."
47:30 Speaker 02 That is a beautiful phrase. "The diverse frailties of humankind."
47:33 Speaker 03 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."
48:06 Speaker 02 So it allows it, but with limitations.
48:11 Speaker 03 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.
48:42 Rund Abdelfatah? 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.
48:57 Speaker 02 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.
49:16 Rund Abdelfatah? 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.
49:38 Speaker 02 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." 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 in the founding era is that any punishment
50:22 Speaker 02 that goes beyond necessity, and 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 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 is reviewing a punishment like the death penalty.
50:50 Rund Abdelfatah? 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.
51:08 Speaker 03 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?
51:26 Speaker 03 It's kind of a rebuke to the idea that standards of decency evolve in one direction.
51:40 Rund Abdelfatah? That's it for this week's show. I'm Rundhab de Fatah.
51:43 Speaker 02 I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.
51:48 Rund Abdelfatah? This episode was produced by me.
51:50 Speaker 02 And me and.
51:51 Speaker 05 Lawrence Wu. Julie Kay.
51:53 Speaker 04 Anya Steinberg. Casey Minor.
51:56 Speaker 06 Christina Kim.
51:57 Speaker 05 Devin Kadyama. Sarah Wyman. Irene.
52:01 Rund Abdelfatah? Voiceover work in this episode was also done by David Katayama, Sarah Wyman, Anya Steinberg, and Devin Katayama.
52:09 Speaker 02 Thank you to Johannes Dirky, Tony Cavan, Nadia Lancy, Keandre Starling, Jeanette Oakes, Edith Chapin, and Colin Campbell.
52:20 Rund Abdelfatah? Fact checking for this episode was done by Kevin Vocal. This episode was mixed by Jimmy Keely. Music for this episode was composed by Ramtin and his band, Drop Electric, which includes-
52:32 Speaker 00 Anya Mizony. Navid Marvi.
52:35 Speaker 05 Cho Fujiwara.
52:37 Speaker 02 And finally, if you have an idea or like something you heard on the show, write us at [email protected] .
52:45 Rund Abdelfatah? Thanks for listening.
52:52 Speaker 00 Stay tuned for the following announcements and messages from our sponsors.
Previous Ralph Nader, Consumer Crusader (Throwback) Next The Kingdom Behind Glass Page updated November 5, 2026 · transcript and summary are machine-generated