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23 1 The Medieval Origins of the Supreme Court’s Prohibition on Executing the Insane Karl Shoemaker The history of capital punishment holds an unsettling place in the United States Supreme Court’s death penalty jurisprudence. On the one hand, the widespread acceptance of capital punishment in the early Republic is powerful evidence that, however the Eighth Amendment was meant to regulate punishment at the time of the framing, the sentence of death itself was not unconstitutional. Although arguments against the death penalty can readily be found in the writings of prominent early American jurists and intellectuals, the objections to the death penalty they voiced tended to be prudential, religious, or political, not constitutional.1 The constitutional power of the state to exact death for certain crimes was not seriously in question in the United States until the twentieth century. Precisely because the death penalty had such clear historical precedents, lawyers and judges who attempted to craft arguments against the constitutionality of the death penalty had to account for them. Perhaps the most well known judicial rejoinder to the death penalty’s history, announced originally in a noncapital case but famously quoted by Justice William J. Brennan Jr. in Furman v. Georgia, asserts that the Eighth Amendment of the United States Constitution must be read in light of “evolving standards of decency that mark the progress of a maturing society.”2 This approach to the Eighth Amendment argues that the death penalty’s historicity is something that a “mature” modern state should abandon on humane grounds, not embrace on originalist grounds. As a matter of Supreme Court jurisprudence, the originalist position has won out. Even so, the contemporary Supreme Court has abandoned large parts of the death penalty’s historical practice even as it has repeatedly found the death penalty constitutional. The common law procedures whereby juries had deliberated and imposed death sentences since (in some cases) 24 Karl shoemaKer the colonial era were largely dismantled by the Court in the 1970s, replaced by new legislatively imposed procedures that were concerned with guiding and checking the traditionally unfettered discretion of juries to assign death. Likewise, the most time-honored mode of execution in the common law tradition, hanging, has been replaced successively by alternative modes of execution, each ostensibly an attempt to impose death in as anesthetized a manner as possible. Finally, the pool of felons deemed “death eligible” by the Court has recently begun to shrink. Today, the Court has read the Constitution to forbid the execution of offenders who were not yet eighteen years old at the time of their crime as well as otherwise death-eligible felons who are determined to be mentally retarded. Hence, the death penalty remains constitutional in part because of its history even as the Court has jettisoned much of the legislation and many of the common law practices that constitute that history. One aspect of the legal history at stake in the Supreme Court’s death penalty jurisprudence that has garnered considerable attention recently concerns the execution of inmates who become insane while awaiting execution. As the Court noted in Ford v. Wainwright (1986), prohibitions on executing the insane have a venerable common law heritage. The Ford Court was able to cite Sir Edward Coke (1552–1634), a seminal figure in early modern English common law, for the proposition that condemned felons who lapsed into insanity awaiting execution ought not to be executed , at least until they had regained their sanity. Indeed, the prohibition on executing the insane was even expressible in a learned Latin maxim, furiosus solo furore punitur (“a madman is punished only by madness”), firmly cementing its place in the misty past of the English common law. As we will see, the antiquity of the common law rule gave the Court some confidence in reading the prohibition on executing the insane into the Eighth Amendment, even though the Court was unable to commit itself to any of the historical rationales for the rule. The legal history of prohibitions on executing insane convicts presents something of a paradox. Unlike the execution of minors, a practice that is affirmed by historical precedents, all medieval and early modern European legal traditions favored a rule that forbade the execution of capital convicts who lapsed into insanity before the sentence could be carried out. Rather than expanding the scope of the death penalty, in this instance legal history suggested restricting it. Rather than offering a view of “maturation”—an evolution from more harshness to...

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