We The People: Cruel and Unusual Punishment

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

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• 0:00Speaker 00

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• 0:17Rund Abdelfatah?

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

• 0:37Speaker 02

  Utah, 1877. A man named Wallace Wilkerson stops by a saloon.

• 0:45Speaker 02

  He starts by playing a game of cards with another man named William Baxter.

• 0:52Speaker 02

  An argument starts.

• 0:56Speaker 02

  Wilkerson takes out a gun, shoots Baxter in the head, killing him. And then, he flees.

• 1:09Speaker 02

  Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed the next month.

• 1:17Speaker 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.

• 1:50Speaker 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.

• 2:06Speaker 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.

• 2:22Rund 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?

• 2:35Speaker 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."

• 2:48Speaker 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.

• 3:02Speaker 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."

• 3:15Speaker 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."

• 3:41Speaker 03

  But they also said, "We're not entirely sure what its contours are. It just doesn't reach this far."

• 3:55Rund Abdelfatah?

  On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30 feet away.

• 4:05Rund Abdelfatah?

  He made a short speech and said he hoped God would forgive him. Then, three concealed gunmen fired.

• 4:15Rund Abdelfatah?

  He continued breathing for 27 minutes before being pronounced dead.

• 4:27Rund Abdelfatah?

  Almost 150 years later, the firing squad is still a legal way to execute someone in five states.

• 4:34Speaker 04

  South Carolina's highest court says death row inmates there may choose to die by firing squad, electric chair, or by lethal injection.

• 4:43Rund Abdelfatah?

  The death penalty is still constitutional, but debates over what exactly is cruel and unusual are ongoing and wide-ranging.

• 4:52Speaker 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.

• 5:03Speaker 06

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

• 5:07Speaker 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.

• 5:19Speaker 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.

• 5:44Speaker 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.

• 5:59Rund 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.

• 6:21Speaker 02

  Coming up, the Eighth Amendment and what cruel and unusual actually means.

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• 8:38Rund Abdelfatah?

  Bloody Assizes.

• 8:42Rund 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.

• 9:02Speaker 03

  So there was a really unpopular king.

• 9:06Rund Abdelfatah?

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

• 9:11Speaker 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.

• 9:23Rund 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.

• 9:43Speaker 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.

• 9:57Rund Abdelfatah?

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

• 10:05Speaker 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.

• 10:20Rund Abdelfatah?

  Hundreds were executed.

• 10:23Speaker 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.

• 10:37Speaker 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.

• 10:56Rund 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.

• 11:22Speaker 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.

• 11:35Rund 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.

• 11:50Speaker 06

  That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

• 12:03Speaker 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,

• 12:47Speaker 02

  in which he used algebra to try to calculate the optimal punishment for smuggling.

• 12:53Speaker 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.

• 13:39Speaker 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.

• 14:14Speaker 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.

• 14:49Speaker 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?

• 15:18Rund Abdelfatah?

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

• 15:27Speaker 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.

• 15:49Rund Abdelfatah?

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

• 15:58Speaker 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,

• 16:43Speaker 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.

• 17:02Rund Abdelfatah?

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

• 17:07Speaker 03

  There was some uncertainty about what it actually meant.

• 17:12Speaker 03

  Bread crumbs in a way.

• 17:15Speaker 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?

• 17:31Rund 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.

• 18:05Speaker 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.

• 18:48Speaker 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.

• 19:00Speaker 05

  Livermore suggested, well, it's going to be for the courts to actually give some,

• 19:05Speaker 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.

• 19:32Rund Abdelfatah?

  The record reflects by a considerable majority.

• 19:39Rund 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.

• 20:08Speaker 00

  Hello, my name is Alan. I'm Alaric Pavanathan. I'm from Lexington, South Carolina, and you're listening to Throughline from NPI.

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• 21:43Speaker 02

  Two: Infamous Punishments.

• 21:48Speaker 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.

• 22:28Speaker 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.

• 22:48Speaker 02

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

• 22:57Speaker 05

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

• 23:02Speaker 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.

• 23:12Speaker 05

  And was actually sentenced to something called kadina.

• 23:16Speaker 02

  Kadina, translated, means chain.

• 23:20Speaker 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,

• 23:33Speaker 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.

• 23:49Speaker 03

  Something that was a Philippine punishment, not really something that you would have found in the United States at the time.

• 23:57Speaker 03

  And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

• 24:05Speaker 05

  The Supreme Court looked at that punishment and said,

• 24:07Speaker 04

  That punishment is unconstitutional.

• 24:10Speaker 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.

• 24:36Speaker 02

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

• 24:42Speaker 03

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

• 24:49Speaker 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.

• 24:56Speaker 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."

• 25:36Speaker 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.

• 25:46Speaker 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.

• 25:57Speaker 02

  In Weems, the court says explicitly, "As the views of society change, the way we interpret the Eighth Amendment should change too."

• 26:08Speaker 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

• 26:49Speaker 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.

• 27:00Speaker 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?

• 27:21Speaker 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.

• 27:50Speaker 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.

• 28:09Speaker 05

  And on the day following his escape, had surrendered himself.

• 28:14Speaker 03

  And after he was taken into custody.

• 28:16Speaker 05

  He had been convicted by court martial of desertion and dishonor in discharge.

• 28:22Speaker 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.

• 28:40Speaker 05

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

• 28:48Speaker 03

  And the Supreme Court said, "That's cruel and unusual punishment."

• 28:55Speaker 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.

• 29:16Speaker 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?

• 29:39Rund Abdelfatah?

  But there was something bigger buried in the Trop decision.

• 29:43Speaker 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."

• 30:01Rund 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.

• 30:18Speaker 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.

• 30:52Speaker 00

  But coming up, the political winds change.

• 31:06Speaker 06

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• 32:41Rund Abdelfatah?

  And freakish.

• 32:46Speaker 04

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

• 32:58Rund 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.

• 33:16Speaker 04

  The fact that it is used on identifiable minority

• 33:21Speaker 04

  and the fact that it has a historical pattern of use in the South upon blacks.

• 33:27Rund 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.

• 33:49Speaker 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,

• 34:34Speaker 03

  but a very significant one, was its racially discriminatory use, especially in the American South.

• 34:43Rund Abdelfatah?

  And civil rights activists were paying attention.

• 34:49Speaker 02

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

• 34:58Speaker 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.

• 35:13Speaker 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.

• 35:31Speaker 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.

• 35:40Speaker 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.

• 35:53Speaker 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.

• 36:20Speaker 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,

• 36:34Speaker 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.

• 36:59Speaker 02

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

• 37:06Speaker 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."

• 37:50Speaker 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.

• 38:08Speaker 02

  It was quiet until the end of the Supreme Court's term in June. And then...

• 38:14Speaker 03

  Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.

• 38:29Speaker 02

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

• 38:35Speaker 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.

• 39:03Speaker 05

  And then clapping of hands. Everyone was real happy, of course. Kind of a shock, I guess you could say.

• 39:10Speaker 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.

• 39:26Rund 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.

• 39:35Speaker 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.

• 39:47Speaker 03

  The grounds for the decision were really hard to say.

• 39:52Speaker 05

  I explained to them that I was still confused.

• 39:55Speaker 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.

• 40:05Speaker 07

  Wow. That's not, that's not like...

• 40:08Speaker 03

  That does not happen. No, that does not happen.

• 40:11Rund Abdelfatah?

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

• 40:21Speaker 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.

• 40:45Rund 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.

• 40:56Speaker 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...

• 41:18Speaker 03

  People's biases, you know, play in the decision-making process.

• 41:24Rund 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.

• 41:38Speaker 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.

• 42:18Speaker 03

  What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.

• 42:29Speaker 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.

• 42:49Speaker 03

  Exactly.

• 42:51Speaker 02

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

• 42:56Speaker 03

  Yeah, well, what happened was, I think, the justices miscalculated where standards of decency had evolved to, because there was...

• 43:10Speaker 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.

• 43:47Speaker 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?

• 43:58Speaker 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

• 44:43Speaker 03

  Court abolished it constitutionally.

• 44:48Speaker 02

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

• 44:57Speaker 03

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

• 45:05Speaker 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.

• 45:15Speaker 03

  They don't wait very long.

• 45:18Speaker 02

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

• 45:28Speaker 03

  Texas, North Carolina, Louisiana, Georgia, and Florida.

• 45:38Speaker 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.

• 46:06Speaker 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.

• 46:19Speaker 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.

• 46:44Speaker 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.

• 47:07Speaker 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."

• 47:30Speaker 02

  That is a beautiful phrase. "The diverse frailties of humankind."

• 47:33Speaker 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."

• 48:06Speaker 02

  So it allows it, but with limitations.

• 48:11Speaker 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.

• 48:42Rund 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.

• 48:57Speaker 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.

• 49:16Rund 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.

• 49:38Speaker 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

• 50:22Speaker 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.

• 50:50Rund 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.

• 51:08Speaker 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?

• 51:26Speaker 03

  It's kind of a rebuke to the idea that standards of decency evolve in one direction.

• 51:40Rund Abdelfatah?

  That's it for this week's show. I'm Rundhab de Fatah.

• 51:43Speaker 02

  I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.

• 51:48Rund Abdelfatah?

  This episode was produced by me.

• 51:50Speaker 02

  And me and.

• 51:51Speaker 05

  Lawrence Wu. Julie Kay.

• 51:53Speaker 04

  Anya Steinberg. Casey Minor.

• 51:56Speaker 06

  Christina Kim.

• 51:57Speaker 05

  Devin Kadyama. Sarah Wyman. Irene.

• 52:01Rund Abdelfatah?

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

• 52:09Speaker 02

  Thank you to Johannes Dirky, Tony Cavan, Nadia Lancy, Keandre Starling, Jeanette Oakes, Edith Chapin, and Colin Campbell.

• 52:20Rund 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-

• 52:32Speaker 00

  Anya Mizony. Navid Marvi.

• 52:35Speaker 05

  Cho Fujiwara.

• 52:37Speaker 02

  And finally, if you have an idea or like something you heard on the show, write us at [email protected].

• 52:45Rund Abdelfatah?

  Thanks for listening.

• 52:52Speaker 00

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