Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment

Chapter Five The Eighth Amendment

162 c h a p t e r f i v e The Eighth Amendment t The Bill of Rights T he U.S. Constitution was approved in Philadelphia in September 1787, but ratification was still necessary and both Patrick Henry and George Mason felt strongly that a bill of rights was needed. ‘‘If you intend to reserve your unalienable rights,’’ Henry said, invoking Virginia’s cruel and unusual punishments clause, ‘‘you must have the most express stipulation .’’ Mason, an Anti-Federalist and George Washington’s friend and neighboring plantation owner, feared Congress would use the Constitution’s Necessary and Proper Clause to create ‘‘new Crimes’’ or ‘‘inflict unusual and severe Punishments.’’ Samuel Bryan, another Anti-Federalist, wrote in Philadelphia ’s Freeman’s Journal on October 24, 1787, that although the new plan ‘‘does propose to secure the people of the benefit of personal liberty by the habeas corpus; and trial by jury for all crimes,’’ it failed to contain a provision ‘‘that the requiring of excessive bail, imposing of excessive fines and cruel and unusual punishments be forbidden.’’ ‘‘The injunction of secrecy imposed on members of the late Convention,’’ Bryan complained, ‘‘was obviously dictated by the genius of Aristocracy.’’ ‘‘The authors of the new plan, conscious that it would not stand the test of enlightened patriotism,’’ Bryan wrote as ‘‘Centinel,’’ ‘‘tyrannically endeavored to preclude all investigation.’’ As Bryan wrote: ‘‘Whatever specious reasons may be assigned for secrecy during the framing of the plan, no good one can exist, for leading the people blindfolded into the implicit adoption of it. Such an attempt does not augur the public good—It carries on the face of it an intention to juggle the people out of their liberties.’’∞ Indeed, after the Constitutional Convention, several men, often using pseudonyms , spoke of the need to prohibit cruel and unusual punishments. ‘‘For the security of liberty,’’ one ‘‘Brutus’’ wrote in Thomas Greenleaf’s New York Journal in November 1787, ‘‘it has been declared, ‘that excessive bail should The Eighth Amendment | 163 not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.’ ’’ Likewise, ‘‘Philadelphiensis’’ wrote: ‘‘To such lengths have these bold conspirators carried their scheme of despotism, that your most sacred rights and privileges are surrendered at discretion. When government thinks proper, under the pretence of writing a libel, &c. it may imprison, inflict the most cruel and unusual punishment, seize property, carry on prosecutions, &c. and the unfortunate citizen has no magna charta, no bill of rights, to protect him.’’ In March 1788 in the Virginia Independent Chronicle, the ‘‘Impartial Examiner’’ also railed against the ability of Congress to make laws ‘‘repugnant ’’ and ‘‘totally derogatory’’ to Virginia’s constitution. ‘‘How will your bill of rights avail you any thing?’’ he asked. Saying the proposed federal constitution was ‘‘without any kind of stipulation’’ for ‘‘natural rights,’’ the Impartial Examiner said ‘‘it is evident that the most flagrant acts of oppression may be inflicted; yet, still there will be no apparent object injured: there will be no unconstitutional infringement.’’ The Impartial Examiner then posed a hypothetical : ‘‘For instance, if Congress should pass a law that persons charged with capital crimes shall not have a right to demand the cause or nature of the accusation, shall not be confronted with the accusers or witnesses, or call for evidence in their own favor; and a question should arise respecting their authority therein,—can it be said that they have exceeded the limits of their jurisdiction, when that has no limits; when no provision has been made for such a right?’’ ‘‘The same observation,’’ he said, ‘‘may be made on any arbitrary or capricious imprisonments contrary to the law of the land.’’ ‘‘The same,’’ he added, ‘‘may be made, if excessive bail should be required; if excessive fines should be imposed; if cruel and unusual punishments should be inflicted.’’≤ Many Americans, though, saw a national bill of rights as redundant because state constitutions already guaranteed rights. Others also felt that a prohibition on ‘‘cruel and unusual punishments’’ would be useless. For example, in the campaign for ratification, James Iredell, one of the original Justices of the U.S. Supreme Court, argued that the inclusion of a protection against ‘‘cruel and unusual’’ punishments, as was already in place in England and Virginia, would be meaningless. An ardent Federalist writing under the alias of ‘‘Marcus ,’’ Iredell, appointed by George Washington in 1790 to serve on the nation’s highest court, replied to George Mason’s...