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Back to the Future with the Eighth Amendment:
Today's Death Penalty and Founding Era Standards of Decency
by Margo Schulter
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1. Introduction: Strictly scrutinizing the death penalty
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In a recent discussion at George Washington University School of Law,
retired Justice John Paul Stevens of the Supreme Court of the United
States (SCOTUS) addressed the unnecessary as well as costly and
inefficient nature of the death penalty in the 21st century:
"It's really not necessary because life imprisonment without
parole protects the public at least as well as execution does and
so the justification for the death penalty is diminished. And I
think if you make a cost-benefit analysis - the cost of the
trials and all the rest - it is a terrible waste of society's
resources to have these trials that go on for so long and produce
an awful lot of unfortunate results." (Quoted from "A
Conversation with the Honorable John Paul Stevens," Alliance for
Justice, 19 May 2015; .
Curiously, in questioning the necessity of the death penalty, Justice
Stevens could have been echoing a conversation that took place on
April 27 during the federal death penalty trial of Dzhokhar Tsarnaev
for his role in the Boston Marathon bombings and their aftermath.
When his defense team proposed, as part of its opening argument as to
why he should be sentenced to life without parole (LWOP) rather than
execution, to show the jury an aerial photograph of ADX Florence, the
supermax prison in Colorado where the young Tsarnaev would be sent to
serve his sentence, the prosecution objected. Assistant United States
Attorney William D. Weinreb argued that visualizing for the jury the
stark and secure nature of ADX Florence wasn't relevant to the issues
of Tsarnaev's crime or his character and background to be weighed in
choosing life or death. Rather,
"it's a question about, in general, whether we need the death
penalty at all given the ability of the the Bureau of Prisons to
incapacitate people." (United States District Court for the District
of Massachusetts, _United States v. Dzhokhar A. Tsarnaev_,
Criminal Action No. 13-10200-GAO, Jury Trial - Day 50, April 27,
2015, p. 50-24)
Judge George A. O'Toole ruled in favor of the defense, permitting it
to show the photograph, with the jury nevertheless ultimately
returning a verdict of death on May 15. However, the arguments about
that photograph pointed to the same questions raised by former Justice
Stevens: Is the death penalty really necessary? And, if not, how can
it be justified?
Now let's move to another courtroom scene, one in which a
distinguished jurist addresses a Virginia federal grand jury on some
of the basics of criminal justice:
"It is the opinion of some writers, highly respected for their
good sense, as well as for their humanity, that capital
punishments are, in no case, necessary. It is an opinion, which I
am certainly well warranted in offering -- that nothing but the
most absolute necessity can authorize them." 3 _The Works of the
Honourable James Wilson, L.L.D._ 384 (1804); from "A Charge to
the Grand Jury in the Circuit Court for the District of
Virginia," id. at 357-393.
Justice Wilson's address to one of the first federal grand juries,
asserting that only "most absolute necessity" could justify the death
penalty, took place in May, 1791, or 224 years to the month before
Justice Stevens offered likeminded views at George Washington
University.
Significantly, 1791 was also the year in which the Bill of Rights,
including the Eighth Amendment's prohibition against "cruel and
unusual punishments," was ratified, on December 15. As shown by
Justice Wilson's address, the necessity and legitimacy of capital
punishment were already being debated in the new Republic.
As Justice William Rehnquist noted in his dissent in _(Harry) Roberts
v. Louisiana_, 431 U.S. 633, 642-643 (1977), one important guide for
interpreting the Cruel and Unusual Punishments Clause is "the view of
society when the Eighth Amendment was passed."
In cutting through the Gordian knot -- or perhaps Gordian noose -- of
capital punishment in the 21st century, the Founding Era offers us a
tool admirably suited to this purpose: the test of "absolute
necessity" offered by Justice Wilson and many other of the leading
thinkers and First Jurists of our Republic, as well as by the English
writers and jurists upon whom they often drew.
While Justice Wilson didn't himself venture an opinion in 1791 on the
question of whether the death penalty was "absolutely necessary" for
any crime -- leaving open that contentious question -- he was quite
confident that "absolute necessity," or indeed "most absolute
necessity," was the right test to apply in answering that question.
Two years later, in 1793, Justice William Bradford of the Pennsylvania
Supreme Court explicitly carried the reasoning of Justice Wilson and
many others a legal step further, in a report on the death penalty to
the Governor and Legislature of his State. If the death penalty is not
"absolutely necessary," then it is "cruel," and thus in constitutional
terms "seems to be an unauthorised act of power." Further, he
considered this principle one that should belong to "the fundamental
laws of every free country." William Bradford, Esq., "An enquiry, how
far the Punishment of Death is necessary in Pennsylvania" [26 February
1793], in _The American Museum: or, Annual Register of Fugitive
Pieces, Ancient and Modern for the Year 1798_, 5-39, at 6-8 (1799).
.
What these Founding Era thinkers and others we're about to survey
offer us, in modern terms, is a standard of strict scrutiny for the
death penalty under the Eighth Amendment: one of "absolute necessity."
In other words, the death penalty must have a compelling purpose which
could not be served by any lesser punishment, including the sanction
of life without parole or LWOP available under federal law as well as
the law of every State except, curiously, abolitionist Alaska.
The advantage of the "absolute necessity" test for the death penalty
is that it's a bedrock standard of our Anglo-American tradition going
back well over two centuries, with one of the most powerful statements
appearing in such an iconic source as William Blackstone's first
volume of his _Commentaries_ (1765) -- an even 250 years ago, and 26
years before the ratification of the Bill of Rights in 1791.
Since the decision of _Trop v. Dulles_, 356 U.S. 86, 100-101 (1958),
constitutional decisions about capital punishment have been guided by
"the evolving standards of decency that mark the progress of a
maturing society." The problem with this "evolving standards" concept,
at least as applied so far by the Court, is that it can make the
permissibility of taking human life under color of law depend on the
fads and fashions of electoral politics, with its frequent imperative
to appear "tough on crime" or "tough on terrorism."
Thus in _Gregg v. Georgia_, 428 U.S. 153, 175 (1976), the case that
found the death penalty constitutional under the Eighth Amendment for
aggravated murder and established what has grown into an incredibly
intricate system for administering it, the Court linked "evolving
standards" to decisions of legislatures -- the very bodies that the
Amendment was meant to constrain:
"Therefore, in assessing a punishment selected by a
democratically elected legislature against the constitutional
measure, we presume its validity. We may not require the
legislature to select the least severe penalty possible so long
as the penalty selected is not cruelly inhumane or
disproportionate to the crime involved. And a heavy burden rests
on those who would attack the judgment of the representatives of
the people."
When the punishments in question involve fines or imprisonment, or
perhaps alternative sanctions such as restitution or community
service, this doctrine of judicial restraint is very wise. One can
imagine the chaos that might result in our state and federal courts if
Congress or state legislatures were continually forced to prove that a
5-year sentence was "absolutely necessary" rather than a 3-year
sentence; or even a $10 parking fine rather than a $5 parking fine.
See Chief Justice Warren E. Burger's dissent in _Furman v. Georgia_,
408 U.S. 238, 396 (1972).
However, if we go back to 18th-century basics, we find that in the
special case of the penalty of death, the standard of "absolute
necessity" does reverse the usual presumption that a given punishment
is valid, and require a determination that there is a compelling
purpose which no less severe punishment could meet. Very strikingly,
we will find that not only death penalty abolitionists of the Founding
Era, but also writers who find the death penalty a regrettable
necessity, invoke this exacting standard.
In 20th-21st century terms, this perception that capital punishment is
legally and constitutionally unique is captured in the phrase "Death
is different." In _Gardner v. Florida_, 430 U.S. 349, 357-358 (1977),
the Court noted that a majority of its Members had subscribed to the
doctrine, and explained why:
"From the point of view of the defendant, it is different in both
its severity and its finality. From the view of society, the
action of the sovereign in taking the life of one of its citizens
also differs dramatically from any other legitimate state
action."
These points are voiced yet more emphatically by Justice Potter
Stewart in _Furman v. Georgia_, supra, 408 U.S. 238, 306 (concurring
opinion):
"The penalty of death differs from all other forms of criminal
punishment, not in degree, but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation
of the convict as a basic purpose of criminal justice. And it is
unique, finally, in its absolute renunciation of all that is
embodied in our concept of humanity."
We shall see that these same considerations impel 18th-century
writers, jurists, and legislators to champion the test of "highest
necessity," "absolute necessity," or even "most absolute necessity" as
the criterion which the death penalty must meet in order to be morally
defensible -- or, in Justice Bradford's view, constitutionally
defensible.
Before surveying these views during the Founding Era, which I will
here conveniently define as the period beginning with the Stamp Act
crisis of 1765 (also the date of Blackstone's critically important
statement about human rights explored below) and concluding with the
year 1800, we may find it helpful to clarify an important distinction
in approaching the Eighth Amendment. That is the distinction between
"evolving standards" of law, like those suggested in the _Trop_ case;
and fixed legal standards like the "absolute necessity" test which may
be applied to evolving social conditions.
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2. Evolving standards vs. evolving facts
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To understand this distinction between evolving legal standards and
evolving social facts or conditions, let us imagine an amusement park
ride, say a roller coaster, which specifies a minimum age to ride: for
example, age 8. The ride was built in 1991 -- to celebrate the
Bicentennial of the Bill of Rights -- and the minimum age set at that
time. As of 2015, the standard has not changed.
Let us suppose that Ruth was born in 1984. When the ride opened in
1991, and the sign announcing a minimum age of 8 was first posted, she
was thus not quite old enough to meet the standard. However, in 2015,
she is 30 or 31 years old -- so that any reasonable person can plainly
see that she meets the test and may ride.
Here the standard itself has not "evolved" at all, but Ruth and the
world around her have grown a full two decades older, so that we reach
a different result as to her eligibility to ride the roller coaster.
Likewise, Justice Bradford in 1793, for example, did not regard the
"absolute necessity" test for the death penalty as itself an evolving
standard, in the sense of something that might change as history
continued. However, he did emphasize that in his view "the progress of
civilization" would sooner or later make it clear that the death
penalty was not "necessary," at which point he saw legislators
"putting the key-stone to the arch," and "triumph[ing] in the
completion of their benevolent work" for criminal law reform.
Bradford, "An Enquiry," supra, at 39.
In the optimistic climate of 1793, when Pennsylvania legislators were
reaching a consensus that the death penalty was unnecessary except for
certain aggravated forms of homicide which Bradford proposed to define
as the new crime of "murder in the first degree," and considering
whether it might soon be abolished even for this crime, it was natural
for Bradford to see the normal political process as the channel by
which this "progress of civilization" would assert itself.
Most recently, the Nebraska Legislature fulfilled this promise when it
voted by 30-19 to override a veto by Governor Pete Ricketts and enact
abolition. This decision, bringing together conservative and
progressive Senators in Nebraska's unicameral Legislature, reflected
the best Founding Era values: respect for human life, suspicion of
such a radical government power as the power to kill; and a desire for
a thriftier and more efficient approach to law enforcement.
However, in the last resort, Justice Bradford regarded the "absolute
necessity" test as a fundamental principle for "every free country"
that would render any death penalty failing to meet this standard an
"unauthorised act of power." See "An Enquiry," id. at 6, 8. Thus,
after 222 years, the Supreme Court can and should invoke the Eighth
Amendment to end the clearly unnecessary use of the death penalty
where legislative action has not, so far, accomplished this task.
Such a landmark decision should rest on truly transcendent and
enduring constitutional principles, among which our repugnance to the
unnecessary taking of human life is one of the most precious. My
purpose is to sketch out the foundations of the "absolute necessity"
test as an 18th-century doctrine now more relevant than ever.
For readers who would like to place this sketch in a larger
perspective, I warmly recommend the writings of John D. Bessler, whose
_Cruel & Unusual: The American Death Penalty and the Founders' Eighth
Amendment_ (Boston: Northeastern University Press, 2012) gives a
breathtaking overview. See also his "Revisiting Beccaria's Vision: The
Enlightenment, America's Death Penalty, and the Abolition Movement," 4
N.W. J. L. & Soc. Pol'y. 195-328 (2009)
.
While there are many roads to the conclusion that capital punishment
today is unconstitutional, my own approach is to rest this conclusion
squarely on precepts from the Founding Era itself.
Further, while Bessler and others have amply documented the growth of
death penalty abolitionism in the later 18th century, and the central
role of Cesare Beccaria and his germinal essay _On Crimes and
Punishments_ (1764), my focus here is on the "absolute necessity" test
itself as a standard shared in common by many abolitionists and
retentionists alike of the Founding Era.
Often, in constitutional law, the most critical task is setting the
correct standard, or asking the right question. When subjected to the
strict scrutiny of the "absolute necessity" standard, the death
penalty can hardly weather an Eighth Amendment challenge under early
21st-century conditions. My purpose is to show why this is indeed the
correct standard to apply.
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3. William Blackstone (1765) and the Fifth and Eighth Amendments
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Discussions on the question of whether the Eighth Amendment might
prohibit the death penalty as "cruel and unusual" often confront the
fact that the Fifth Amendment certainly recognizes the practice of
capital punishment. Thus no one may be "twice put in jeopardy of life
or limb;... nor be deprived of life, liberty, or property, without due
process of law;..."
Fortunately, William Blackstone provides us with a way to disentangle
and harmonize these two provisions of the Bill of Rights in a way that
comports with 18th-century and 21st-century values alike. The
critically important passages occur in the First Book of his
_Commentaries on the Laws of England_ (1765), fittingly entitled _Of
the Rights of Persons_.
The relevant chapter is likewise entitled "Of the Absolute Rights of
Individuals," with the passages of interest addressing the most basic
of these rights: the right to "life and member," or "life and limbs,"
or "life or limb," with the last phrasing identical to that of the
Fifth Amendment, see 1 Blackstone 126-129.
From Blackstone's perspective, an organized society may pose two types
of threats to this paramount right, both of which he deems
"tyrannical," although to different degrees. While reserving the
general question of "capital punishments" for the Fourth Book of his
commentaries "Of Public Wrongs" (i.e. the criminal law) , here he
focuses on human rights:
"At present, I shall only observe, that whenever the
_constitution_ of a state vests in any man, or body of men, a
power of destroying at pleasure, without the direction of laws,
the lives or members of the subject, such a constitution is in
the highest degree tyrannical: and that whenever any _laws_
direct such destruction for light and trivial causes, such laws
are likewise tyrannical, though in an inferior degree; because
here the subject is aware of the danger he is exposed to, and may
provide against it." Id. at 129.
In other words, the arbitrary power to kill (or mutilate) a subject
without what the Fifth Amendment terms "due process of law" is the
highest degree of tyranny. A lesser degree of tyranny occurs when a
law, although duly enacted and administered with due process, directs
the destruction of life or limb for "light and trivial causes,"
although the latter case has one important redeeming feature. If
threatened with death for pickpocketing or shoplifting, for example --
both capital offenses at the time Blackstone wrote -- one can at least
make the decision to abstain from these acts, minimizing the risk to
one's life. (In the 18th century, as today, erroneous convictions were
certainly possible, so the risk to an innocent person would still be
greater than zero.)
If Blackstone had stopped there, we might consider his first precept
against the arbitrary and lawless deprivation of life or limb as true
as ever; but the second precept against lawful deprivations for "light
and trivial causes" as rather academic today, at least in the U.S.A.
With the possible and yet untested exception of a few national
security and drug offenses, both state and federal death penalty
statutes apply only to crimes involving the taking of human life,
hardly a light or trivial matter.
However, Blackstone continues with an assertion transcending the
limitations of his own times:
"The statute law of England does thus very seldom, and the common
law does never, inflict any punishment extending to life or limb,
unless upon the highest necessity: and the constitution is an
utter stranger to any arbitrary power of killing or maiming the
subject without the express warrant of law." Id. at 129.
The second part of Blackstone's proposition, his statement that the
constitution is "an utter stranger" to the power of arbitrarily
killing or maiming without due process of law, is embedded in our
Fifth Amendment, and is often traced back to the 39th chapter of the
Magna Carta of 1215, whose 800th anniversary we celebrate this year.
The first part, declaring that "any punishment extending to life or
limb" is under the common law justifiable only "upon the highest
necessity," offers a reading of the Eighth Amendment prohibition
against "cruel and unusual punishments" as an additional constraint
on the death penalty even when administered with due process of law.
If "highest necessity" is not present, then taking a human life would
be cruel and unusual -- something contrary to the spirit that animates
the Constitution.
An earlier passage in the same chapter, on self-defense, gives a sense
of what "highest necessity" may mean:
"Both the life and limbs of a man are of such high value, in the
estimation of the law of England, that it pardons even homicide
if committed _se defendendo_ ["in defending oneself" -- M.S.], or
in order to preserve them. For whatever is done by a man, to save
either life or member, is looked upon as done upon the highest
necessity or compulsion." Id. at 126
This would imply that the death penalty, as a last resort for social
defense, as it were, would require the same level of "highest
necessity" as may justify individual self-defense: the absence of any
nonlethal alternative for averting or controlling the threat.
As to Blackstone's focus on "life or limb," a phrase familiar to us
from the Fifth Amendment, it may briefly be noted that by the 18th
century, punishment by loss of a limb was mostly a curiosity of
history. In the 11th-13th century era such a sanction was often
preferred to death as a penalty for serious crimes or felonies, since
it provided the offender with an opportunity for repentance and
amendment, and thus was reportedly favored by William the Conqueror
and his clerical advisors during his reign (1066-1087) except for
wartime offenses.
Later on, for example in the 16th-century era of the Tudors, it was
retained as an option for certain crimes. When pamphleteer John Stubbs
published a pamphlet in 1579 entitled _The Discovery of a Gaping Gulf_
wherein he warned Queen Elizabeth against a Catholic marriage, this
monarch was not amused at what he argued was an exercise in free
speech. At first deeming this "seditious writing" worthy of the death
penalty, she reconsidered and mitigated the punishment for Stubbs to
the loss of his right hand. Immediately after sentence had been
executed, he showed his unwavering loyalty by removing his hat with
his remaining left hand, and exclaiming: "God Save the Queen." He then
was imprisoned for 18 months. .
However, by Blackstone's time and that of the Founding Era,
punishments going to "life or limb" for most practical purposes meant
the death penalty, with the maimings visited on slaves in many of the
colonies and also States of the early Republic as a horrible
exception. Lesser corporal punishments, such as whipping and the
pillory (both included in the first Federal Crimes Act of 1790), were
still in use but not in this category of "life or limb"; and likewise
branding on the thumb, the fate of the four British soldiers whose
lives John Adams saved, after their participation in the Boston
Massacre of 1770, by winning a verdict of manslaughter, rather than
murder with its mandatory penalty of hanging.
How accurate is Blackstone's assertion that the common law took life
or limb only upon the "highest necessity?" From a certain perspective,
especially during the 11th-15th century era, this statement might not
be so far from reality, if we take the limitations of the criminal
justice system at that time as a given. Apart from the more serious
forms of larceny or theft, many of the 15 or so capital crimes at that
time involved the use or threat of violence (e.g. murder, rape,
robbery), or at least its potential threat (burglary in the narrow
common law sense of breaking into an inhabited dwelling at night for a
felonious purpose), or else implicated national security (treason).
Certainly imprisonment was known and used in medieval English times as
a punishment for crime, as John Stubbs also experienced in the
following Tudor era when he served 18 months after losing his right
hand; but it was not used systematically as a method of incapacitating
felons from doing further harm.
Moving to England's statute law in the mid-18th century, however,
Blackstone must have known that he was indulging in one of the
diplomatic euphemisms of the century when he said that the statute law
"does... very seldom" inflict the death penalty except for the sake of
"highest necessity." He himself documents the grim reality in the
famous opening to his Book Four, widely read in the colonies and the
new Republic, where he decries that, of the actions which people "are
daily liable to commit, no less than an hundred and sixty" have been
declared by Parliament to be worthy of death. 4 Blackstone 18 (1769).
Not only did the Founders and First Jurists read his prose on this
topic: they quoted from it in their writings, state constitutions, and
statutes.
For Blackstone and his contemporaries in 1765 or 1769, there were two
main barriers to the total abolition of the death penalty. In
understanding the context of the Eighth Amendment, we must recognize
both barriers.
The first barrier, whose remedying was a high priority for many
jurists, legislators, and reformers of the Founding Era, was the
absence of what we know as a modern penitentiary system, as realized
by institutions ranging from the Walnut Street Prison in Philadelphia,
established in 1790; to a 21st-century supermax facility such as the
federal ADX Florence designed for securely housing bombers and other
terrorists, as well as gang leaders who might attempt to organize
violent crimes on the outside.
The second barrier, a vital consideration to writers such as
Blackstone although today having only a vestigial presence in either
law or theology, was the widespread religious belief of the time that
the Bible commanded Christians, or indeed all humankind (as
descendants from Noah), to punish murderers with death. Blackstone,
while he took this belief as implicit, dared to delve into the
possible reasons for this divine law, and interestingly rejected
retribution or repayment in kind as an explanation. Rather, he
concluded that Providence had decreed death as the best penalty for
incapacitating the murderer and deterring others, 4 Blackstone 13-14.
By the 1780's, reformers including the Reverend William Turner in
England (1785) and Benjamin Rush of Pennsylvania (1787) had questioned
that interpretation of the Bible, opening a longstanding theological
debate: during the Founding Era, Robert J. Turnbull of South Carolina
(1796) also argued that total abolition of the death penalty was
consistent with Holy Writ.
Today, we can apply Blackstone's standard of "highest necessity" to
the death penalty without any interference from these two barriers. As
Justice Stevens and federal prosecutor Weinreb have recognized from
their different perspectives, it is difficult to argue this necessity
when institutions like ADX Florence, the "Alcatraz of the Rockies,"
are available to house even an aggressively unapologetic terrorist
such as Ramzi Yousef, architect of the World Trade Center bombing of
1993. And a sentence of "perpetual imprisonment" as Justice Bradford
termed it in 1793, or LWOP as we often call it today, ensures at once
an awesome punishment for our worst criminals, and the safety of
society.
Likewise, in a nation where thousands of prisoners are serving LWOP
for heinous murders, while fewer than 50 prisoners are executed each
year for often similar crimes, the idea that the Bible enjoins the
death of the murderer has little relation to reality. Indeed both
secular and religious thought gravitate to the "highest necessity"
or "absolute necessity" test for the death penalty, as in the
Catholic Catechism of 1997, Paragraph #2267 (addressed in n. 4).
.
With these obstacles removed, we can see how Blackstone's two precepts
regarding the right to "life and member," and the need for a sound
constitutional order to avoid "tyrannical" incursions on this right,
are embodied by the Fifth and Eighth Amendments respectively.
The Fifth Amendment guards against the arbitrary taking of life
without "due process of law" -- a safeguard also extended to the
States by the Fourteenth Amendment (1868) with its similar Due Process
Clause. Thus our Constitution, in Blackstone's words, is an "utter
stranger" to any arbitrary power of killing or maiming.
The Eighth Amendment, when best interpreted, guards against the taking
of life, even with due process of law, except on the ground of
"highest necessity." Given that judicial review of legislation is part
our constitutional system, this means that capital punishment laws and
death sentences are subject to strict scrutiny under this standard by
our state and federal courts, with the SCOTUS as the ultimate
arbiter.
How does this reading of the Eighth Amendment, as it applies to the
unique penalty of death, fit the text: "nor cruel and unusual
punishments inflicted?"
Here a simple solution is that the infliction of death without
"highest necessity" is therefore "cruel" (Justice Bradford's view of
Pennsylvania's prohibition against "cruel punishments"); and it is
also "unusual" insofar as it violates the norms and values of the
common law, as expounded by Blackstone, rejecting unnecessary
executions when a lesser penalty suffices to protect society.
Already by the Founding Era, the word "unusual" might suggest another
sense: at least for many offenses, the death penalty provisions of the
statutes were rarely carried out in practice. Blackstone himself was
an acute observer of how juries and judges alike would invent various
devices to avoid Parliament's overzealous will, and the Founders and
Framers often avidly cited and quoted him on this score.
Benjamin Rush, by 1788, was noting how the death penalty even for
murder, which for many had an axiomatic biblical mandate, caused
citizens, "revolting" at its severity, often to seek out any possible
evidence or doubt "in favor of a murderer, as screens him from justice
altogether, or palliates his crime into manslaughter." Rush, "An
enquiry into the justice and policy of punishing murder by death," 4
_The American Museum: or Repository of Ancient and Modern Fugitive
Pieces_ 78-82 at 79 (1788).
.
Some two centuries later, we find ourselves in a situation in the
U.S.A. where the death penalty is "unusual" in many senses. It is
rarely imposed and even more rarely executed even for capital
categories of murder, where LWOP is the prevailing sentence. It
requires a special and time-consuming process of jury selection
excluding many otherwise qualified citizens because of their scruples
against decreeing death for a subdued prisoner; and an uncommonly
complex set of rules and procedures for choosing between life and
death in the penalty phase of a capital case. And it involves truly
extraordinary delays of one, two, or even three decades between
sentence and execution, quite contrary to the goal both in the
Founding Era and today of swift and certain justice.
More simply, we can say that over the 250 years since Blackstone wrote
his memorable words on the most basic human right to "life and limbs,"
imprisonment has become the usual punishment for serious crimes, up to
and including murder, with LWOP available for the most aggravated
offenses. Applying the test of "highest necessity" thus may readily
lead us to the conclusion that the death penalty today is both
needlessly cruel, and highly unusual, under the Eighth Amendment.
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4. William Eden (1771) and "absolute necessity"
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For our Founders and First Jurists, one influential source was William
Eden's _Principles of Penal Law_ (1771). Both Thomas Jefferson and
Justice Wilson would quote or closely paraphrase Eden, later made
Baron Auckland.
.
In Eden's view, "Capital executions are in all states necessary,"
id. at 21. He then continues:
"Nothing however, but the evident result of absolute necessity,
can authorize the destruction of mankind by the hand of man."
Id.
From Eden's perspective, death is not only different from all other
punishments, but belongs in another category:
"The infliction of Death is not therefore to be considered in any
instance, as a mode of punishment, but merely as our last
melancholly resource in the extermination of those from society,
whose continuance among their fellow-citizens is become
inconsistent with the public safety." Id. at 22.
As he also observes:
"It cannot be too strongly inculcated, that capital punishments,
when unnecessary, are inhuman, and immoral;..." Id. at 263.
These words suggest that such "inhuman, and immoral" use of the death
penalty where it is not "absolute necessary" would not merely be
imprudent or impolitic, but worthy of the phrase "cruel and unusual"
under the Eighth Amendment. In other words, as Bradford will also
conclude, this is not merely good legislative advice, but a principle
worthy of constitutional stature.
Like Blackstone, Eden shared the widespread assumption of the time
that the Bible commanded the death penalty for murder, likely one
factor in his conclusion that capital punishment was necessary in all
states, see id. at 222-223:
"The proper judgment against deliberate murder, is death; and in
the rigid infliction of this judgment, both the safety and
morality of mankind are greatly interested. "Whoso sheddeth man's
blood, by man shall his blood be shed," saith the Mosaical law
[Genesis 9:6 -- M.S.]; and therefore "Ye shall take no satisfaction
for the life of a murderer, which is guilty of death; but he
shall surely be put to death, so ye shall not pollute the land
wherein ye are." [Numbers 35:31, 33 -- M.S.]
By 1785, the Reverend William Turner of Manchester, England, was
questioning Eden's traditional interpretation of scripture as applied
to the punishment of murder, and using the "absolute necessity" test
to argue for total abolition of the death penalty on secular and
religious grounds alike. See his "Essay on Crimes and Punishments"
(March 24, 1785), published in 2 _Memoirs of the Literary and
Philosophical Society of Manchester_ 293; excepted in Basil Montagu,
ed., 1 _The Opinions of Different Authors Upon the Punishment of
Death_ 291-304 (1809).
.
In 1787 and 1788, Benjamin Rush will adopt this general line of
argument while sketching out how the punishment of long-term
imprisonment can and should replace capital and other corporal
punishments (see Section 6 below).
It is a tribute to Eden that 244 years after the publication of
_Principles of Penal Law_, in an age when the "rigid infliction" of
the death penalty for deliberate murder in the U.S.A. would be for all
practical purposes as impossible as it is unnecessary, his test of
"absolute necessity" provides an objective standard for evaluating
capital punishment under the Eighth Amendment.
------------------------------------------------------------------
5. Thomas Jefferson's Bill (1778-9) and Kentucky's Preamble (1798)
------------------------------------------------------------------
On November 1, 1778, Thomas Jefferson finished the draft of what might
have been a landmark piece of legislation for the State of Virginia,
and shared it with his mentor George Wythe: a bill, which came before
the Virginia Legislature in 1779, "for proportioning crimes and
punishments in cases heretofore capital." See 1 _Memoirs,
Correspondence, and Private Papers of Thomas Jefferson, Late President
of the United States_ (Thomas Jefferson Randolph, ed.) 37-38; Note E
at 121-134 (1829).
.
Indeed much of what Jefferson, Wythe, and their colleague Edmund
Pendleton proposed became Virginia law in 1796, when the death penalty
was abolished -- for free citizens, as opposed to slaves -- for all
offenses except murder in the first degree (an offense newly defined
in Pennsylvania's criminal law reform of 1794, which became a model).
Kentucky followed suit in January, 1798, attaching to its legislation
a preamble borrowed from Jefferson's draft of 1778. See Nancy J. King,
"The Origins of Felony Jury Sentencing in the United States," 78
Chi-Kent L. Rev. 937, 979-982 (2003).
Jefferson's language, as adopted by the Kentucky Legislature, is much
indebted to Eden in looking on capital punishment as "the last
melancholy resource" of society:
"And whereas the reformation of offenders, an object highly
meriting the attention of the laws, is not effected at all by
capital punishments, which exterminate instead of reforming, and
should be the last melancholy resource against those whose
existence is become inconsistent with the safety of their fellow
citizens; which also weaken the state by cutting off so many who,
if reformed, might be restored sound members to society, who even
under a course of labor might be rendered useful to the
community, and who would be living and long continued examples,
to deter others from committing the like offences." _Laws of
Kentucky_ (printed by John Bradford), 11 (1799).
.
Accordingly, following the example of Pennsylvania in 1794 and
Virginia in 1796, the Kentucky legislation of 1798, after the
preamble, opens with this provision:
"Section 1. _Be it enacted_. That no crime whatsoever committed
by any free person against this commonwealth (except murder of
the first degree) shall be punished by death, within the same."
Id.
The phrase "committed by any free person" is a sobering reminder of our
national heritage of slavery, segregation, and continuing racism which
still haunts the administration of the death penalty.[1]
However, by returning to the Founding Era texts of Thomas Jefferson in
1778 and the Kentucky Legislature in 1798, and asking under the Eighth
Amendment whether the punishment of LWOP for our worst murderers is
not adequate to ensure "the safety of their fellow citizens" in Eden's
phase, we may at least avoid the evil of having the race of the
defendant or the victim skew the process of deciding life or death.
---------------------------------------------------------------------------
6. Progress and Necessity: Benjamin Rush (1787) and Samuel Livermore (1789)
---------------------------------------------------------------------------
We can get some sense of common assumptions and divergences regarding
criminal punishments during the Founding Era by comparing two short
texts. The first, the conclusion of Benjamin Rush's call for penal
reform including total abolition of the death penalty in 1787, might
serve as a powerful 18th-century statement of the "evolving standards
of decency" concept voiced by Chief Justice Warren in _Trop
v. Dulles_, supra (1958).
The second is more sober and down to earth: an argument by
Representative Samuel Livermore in 1789, on the floor of the First
Congress, as to why the provision which was to become the Eighth
Amendment to our Constitution should not be adopted, or seemed at best
a mere form of words.
It may be somewhat ironic that while Rush's historic words mark the
emergence of complete death penalty abolition as a significant social
and political cause in the U.S.A., Livermore's speech may be equally
important as a basis for setting an objective constitutional standard
for capital punishment under the Eighth Amendment, based on a test of
"necessity" as opposed to public sentiment or mere legislative trends.
On March 9, 1787, a few months before the Constitutional Convention
was to meet in the same city of Philadelphia, Rush read an essay to
the Society for Promoting Political Enquiries, which had convened at
the house of Benjamin Franklin. His topic was "An Enquiry Into the
Effects of Public Punishments Upon Criminals, and Upon Society," see
Benjamin Rush, M.D., _Essays, Literary, Moral and Philosophical_
136-163 (1806). .
Rush's main points are a rejection of "public punishments" including
not only the death penalty, which he regards as "an improper
punishment for _any_ crime," id. at 158, but also other corporal
punishments. As an alternative, he proposes confinement and labor in a
"house of repentance," id. at 152 -- which, over the next decades,
became known as a "penitentiary house," or simply "penitentiary."
For Rush, "the same false religion and philosophy, which once kindled
the fire on the alter of persecution, now doom the criminal to public
ignominy and death." Id. at 163. However, in his optimistic
conclusion, he sees the principles of true philosophy and Christianity
bringing about a more humane justice:
"If these principles continue to extend their influence on
government, as they have done for some years past, I cannot help
entertaining a hope, that the time is not very distant, when the
gallows, the pillory, the stocks, the whipping-post and the
wheelbarrow, (the usual engines of public punishments) will be
connected with the history of the rack and the stake, as marks of
the barbarity of ages and countries, and as melancholy proofs of
the feeble operation of reason and religion upon the human mind."
Id. at 163.
Rush associates capital punishment, as represented by its most
frequent method of hanging or "the gallows," with other corporal
punishments familiar from English and colonial practice such as
whipping and the pillory -- and also with one recent innovation in
Pennsylvania, "the wheelbarrow." In 1786, a reform act had replaced
the death penalty for such felonies as robbery and burglary with a
sentence of public labor, performed in the streets of Philadelphia by
prisoners chained to wheelbarrows in a kind of urban chain gang.
As Rush and others quickly learned, such public humiliation tended at
once to demoralize the prisoners, and to make them sympathetic
characters from the perspective of onlookers, rather than just objects
of criminal correction. See Gabriele Gottlieb, _Theater of Death:
Capital Punishment in Early America, 1750-1800_ (PhD Dissertation,
University of Pittsburgh) 193-203 (2005)
; and
Bessler, _Cruel & Unusual_, supra, 72-73.
Thus Rush's statement sought at once to replace the death penalty and
other corporal punishments with what we now know as the the modern
prison, or penitentiary; and to correct the well-intentioned misstep
of Pennsylvania's 1786 "wheelbarrow law," as it was sometimes called,
in decreeing labor on the public streets rather than within such a
prison.
To this statement we may compare that of Representative Livermore on
August 17, 1789, as the First Congress debated the proposed amendments
for what would become the Bill of Rights. One of these proposals was
for what was to become the Eighth Amendment:
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." Joseph
Gales, Gales and Seaton, 1 _The Debates and Proceedings in the
Congress of the United States (Annals of Congress)_ 782 (1834).
.
The first recorded response to this proposed text, from Representative
William L. Smith of South Carolina, was unfavorable at least in part:
"Mr. SMITH, of South Carolina, objected to the words "nor cruel
and unusual punishments;" the import of them being too
indefinite." Id.; or .
Supreme Court Justices and others seeking out the meaning of the
Eighth Amendment should thus take note that in the Founding Era, as
today, these words required interpretation. At least in the matter of
the death penalty, Representative Livermore's speech that followed,
the only other recorded comment during this discussion, may be
illuminating:
"Mr. LIVERMORE -- 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 bail? 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; 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." Id. at 782-783.
Although Rush's words in 1787 and Livermore's in 1789 might seem to
express two contrary spirits of the age, both agree in associating the
death penalty with corporal punishments such as whipping and, for
Livermore, the traditional practice of ear-cropping; and also in
considering these practices in some sense "cruel."
For Livermore, the question is not only whether these punishments may
be considered "cruel," but also whether they are "necessary." He is
concerned that unless or until there is "a more lenient mode of
correcting vice and deterring others from the commission of it" in
place, then statutes authorizing capital or other corporal punishments
may be "necessary laws" which should not be barred by a prohibition
against "cruel and unusual punishments."
While Livermore is speaking as a critic rather than supporter of the
Eighth Amendment, his focus on "necessary laws" is open to a
connection with the test of "highest necessity" as articulated by
Blackstone, or of Eden's "absolute necessity." What the Amendment
prohibits, if we draw this connection, is the needlessly cruel use of
the death penalty when there are modes available and demonstrably
adequate for maintaining the public safety.
In fairness to Livermore, we must remember that he spoke in 1789, on
what proved to be the eve of the implementation of the penitentiary
system, starting with Walnut Street Prison in 1790. The new system had
been sketched out by Rush, for one, but was not yet quite an
accomplished reality.
Today, however, almost 224 years after the ratification of the Eighth
Amendment in 1791, the efficacy of the prison system as a substitute
to the capital and other corporal punishments described by Rush and
Livermore alike is hardly in question. This leads us to consider a
question which seems not inconsistent with Livermore's practical
concerns: if death penalty laws are not "necessary," might they then
violate the Cruel and Unusual Punishments Clause of the Eighth
Amendment?
----------------------------------------------
7. Justice James Wilson (1791): Echoes of Eden
----------------------------------------------
In addressing his charge to a Virginia federal grand jury, as we have
seen, Justice Wilson invoked Eden's test of "absolute necessity,"
underscoring it by his own formation of "most absolute necessity."
After that assertion, quoted in the introduction to this article and
here repeated for convenience, he adds another sentence closely
paraphrasing Eden as to methods of execution:
"It is the opinion of some writers, highly respected for their
good sense, as well as for their humanity, that capital
punishments are, in no case, necessary. It is an opinion, which I
am certainly well warranted in offering -- that nothing but the
most absolute necessity can authorize them. Another opinion I am
equally warranted in offering -- that they should not be
aggravated by any sufferings, except those which are inseparably
attached to a violent death." 3 _The Works of the Honourable
James Wilson, L.L.D._, supra, at 384.
Eden's original statement, immediately following his observation that
death is not a punishment in the usual sense but a "melancholly last
resource" for social defense, is as follows:
"We may pronounce it then contrary both to sentiment and
morality, to aggravate capital executions by any circumstances of
terror or pain beyond the sufferings inseparable from a violent
death." Eden, _Principles of Penal Law, supra, at 22.
At least in theory, the precept that methods of execution should
involve no pain "beyond the sufferings inseparable from a violent
death" -- with "violent" best interpreted as "unnatural" or "forced,"
an adjective which still fits methods such as lethal injection or
nitrogen hypoxia -- has been a part of Eighth Amendment jurisprudence
since the later 19th century. The Supreme Court has drawn a line
between "the mere extinguishment of life," and methods involving
"unnecessary cruelty." See, e.g., _In re Kemmler_, 136 U.S. 436, 447
(1890).
However, the Supreme Court has not yet strictly scrutinized the death
penalty itself under the test of "absolute necessity" as proclaimed by
Eden and Justice Wilson.
---------------------------------------------------------------------
8. Justice William Bradford (1793): Unnecessary executions as "cruel"
---------------------------------------------------------------------
Justice William Bradford's "An Enquiry, how far the Punishment of
Death is necessary in Pennsylvania," supra, (1793) has special value
as one of our Republic's first state studies on the death penalty
(prepared for Governor Thomas Mifflin), addressing such topics as
capital trials and juries; the question of whether the death penalty
has an overall effect of deterring or promoting murder; criminal
psychology and the importance of certain punishment; known historical
instances of abolition; the division of murder into degrees; and
controversies of the time regarding felony murder. Having served as
Attorney General of Pennsylvania (1780-1791), Justice Bradford writes
as an experienced law enforcement official, whose term on the
Pennsylvania Supreme Court was followed by service as Attorney General
of the United States (1794-1795), during which he died at the untimely
age of 39.
Here our focus on this fascinating report will be quite narrowly
directed to Justice Bradford's argument that the death penalty, when
not "absolutely necessary" to protect society, would be not only
unwise or impolitic, but unconstitutional.
In seeking to derive from Justice Bradford's argument in early 1793,
less than two years after ratification of the Eighth Amendment on
December 15, 1791, a workable rule of constitutional law for the 21st
century, we must distinguish between the uniquely severe and thus
suspect punishment of death, and punishments in general. Bradford
himself eloquently recognizes, to use the current phase, that "death
is different," so that subjecting capital punishment to an especially
high level of constitutional scrutiny seems not inconsistent with his
outlook.
At least in theory, his test of strict necessity is more sweeping,
embracing any punishment. Drawing on the "general principles" of
Montesquieu and Beccaria, Justice Bradford, id. at 5-6, specifies
three such principles which "have obtained the force of axioms":
" `_That the prevention of crimes is the sole end of punishment_'
is one of these; and it is another, `_That every punishment,
which is not absolutely necessary for that purpose, is a cruel
and tyrannical act_.' To these may be added a third (calculated
to limit the first) which is, `_That every penalty should be
proportioned to the offense._'
"These principles, which serve to protect the rights of humanity,
and to prevent the abuses of government, are so important, that
they deserve a place among the fundamental laws of every free
country." Id. at 5-6.
As applied to the death penalty, these principles are both appropriate
and practical guidelines for applying the Eighth Amendment.
Blackstone's standard of "highest necessity" for laws depriving a
person of "life or limb," and likewise Eden's test of "absolute
necessity" or Wilson's of "most absolute necessity," reflect the
unique gravity of taking human life. Also, it is reasonable to hold
that if other means are available to protect the public safety and
prevent future crimes (either by the capital offender or by others),
then the death penalty cannot be constitutionalized justified for its
alleged retributive or expressive value, which punishments such as
LWOP can also provide.
However, applying a constitutional test of strict scrutiny or
"absolute necessity" to all criminal punishments, across the board,
could entangle state and federal courts in continual micromanagement
of legislative decisions on the fine calibration of penalties. Such an
Eighth Amendment jurisprudence seems neither practical nor necessarily
desirable, however wise the counsels of Montesquieu and Beccaria may
be in an age of overincarceration in the U.S.A.
Justice Bradford himself, while asserting that all punishments in
principle should be subject to a test of strict necessity, often
focuses specifically on the death penalty. His brief survey of "the
American constitutions," i.e. those of the States, shows that Founding
Era legislators and drafters often had this specific focus:
"That of New-Hampshire declares, `That all penalties should be
proportioned to the nature of the offence; and that a multitude
of sanguinary punishments is impolitic and unjust; the true
design of all punishments being to reform, and not to
exterminate, humankind.'" Id. at 6.
Here "sanguinary punishments" is a 17th-18th century legal term of art
meaning literally punishments that "shed blood," and synonymous with
Blackstone's category of punishments involving loss of "life or
member," i.e. execution or mutilation. Lesser corporal punishments
such as whipping, although they might literally shed blood, did not
generally come under this heading.
The use of "sanguinary" in this sense as a synonym for "capital" seems
to have come into vogue during the first years of the reign of Charles
II (1660-1685). Familiar medieval Latin phrases like _judicium
sanguinis_ (a "judgment of blood") and _causa sanguinis_ (a "cause or
case of blood"), referring to a capital sentence or capital case,
provided one likely source for this learned English idiom.
A complication of reading Founding Era documents is that "sanguinary"
could also carry its more familiar meaning of "cruel, bloodthirsty,
Draconian" -- with many capital statutes under England's Bloody Code
amply meeting both senses of the word. However, the word can simply
denote capital punishment or a law imposing it, as in this passage
from a debate in 1801 in which the young Daniel Webster is called upon
to argue the negative on the question: "Ought the Punishment of Death
to be abolished":
"It was to preserve the many against the few that capital
punishment in certain cases became the law of the land; and, the
history of most nations supports the belief that they all began
at first with mild punishments; such as allowing the murderer to
purchase his pardon, [ ] that they continued the use of this and
similar practices as long as the safety of civil society would
admit; and that nothing but dire necessity forced them at last to
the adoption of Sanguinary laws."
This point clarified, we may return to Justice Bradford's survey of
state constitutions:
"The Constitution of Vermont enjoins the introduction of hard
labour as a punishment, in order to lessen the necessity for such
as are capital; and that of Pennsylvania, framed in 1776,
directed the future legislature `to reform the penal laws -- to
make punishments less sanguinary, and, in some cases, more
proportioned to the offences.'" Bradford, _An Enquiry_, at 6.
The focus on "sanguinary" or "capital" punishments is now further
sharpened:
"But it was in Maryland alone, that the _general_ principle was
asserted; and, in the enumeration of their rights, we find it
declared: `That sanguinary punishments ought to be avoided as far
as is consistent with the safety of the state.'" Id. at 6.
This provision, originally Article XIV of the Maryland Declaration of
Rights (November 11, 1776), differed slightly from Bradford's close
paraphrase: "That sanguinary laws ought to be avoided, as far as is
consistent with the safety of the State;..." For Justice Bradford,
evidently, "sanguinary laws" and "sanguinary punishments" were in this
context synonymous, with Maryland's clause directing that capital laws
and punishments are to be avoided except when necessary to "the safety
of the State" (which, in the kind of reasonable construction suggested
by Bradford's overall presentation, would include the public safety).
The interpretation of Maryland's Constitution, where the Sanguinary
Laws Clause is now part of Article XVI, is, of course, a matter for
the Maryland courts, with the one recent decision not so satisfying;
and the matter now effectively moot, since Maryland abolished the
death penalty in 2013 and all Death Row prisoners have since received
commutations of their sentences to LWOP by Governor Martin O'Malley.[2]
Our interest, however, is in Bradford's own understanding, which
speaks precisely to the Eighth Amendment issue before us: unless the
death penalty is absolutely necessary to the preservation of society
or the public safety, it should be deemed "cruel and unusual."
In addressing the question of constitutional cruelty as it arises in
other state constitutions, he speaks more sweepingly; but his allusion
to Maryland's Constitution may suggest that his logic applies with
particular force, especially for a reviewing court which must
generally presume the validity of legislative enactments, to the death
penalty:
"The other constitutions, which touch on this subject, content
themselves with generally declaring: `That cruel punishments
ought not to be inflicted.' But, does not this involve the same
principle, and implicitly prohibit every penalty which is not
evidently necessary?" Id. at 6.
While this statement encompasses all punishments, Bradford follows
with a wry statement, as timely as ever in 2015, specifically
addressing capital punishment:
"One would think, that, in a nation jealous of its liberty, these
important truths would never be overlooked; and, that the
infliction of death, the highest act of power that man exercises
over man, would seldom be prescribed, where its necessity was
doubtful." Id. at 6.
Bradford's reference to "the infliction of death" as "the highest act
of power" may recall both Eden's test of absolute necessity for "the
destruction of mankind by the hand of man" (Section 4), and also the
assertion in _Gardner v. Florida_, supra, 430 U.S. at 357-358, that
the death penalty "differs dramatically from any other legitimate
state action."
From this 21st-century perspective, it is woefully inadequate, given
the unique enormity of the death penalty, for a reviewing court simply
to ask if an execution will make some meaningful contribution to a
legitimate penological purpose: the standard of Blackstone's "highest
necessity" or Eden's "absolute necessity," with the latter adopted by
Bradford, is the correct test under the Eighth Amendment.
However, for lesser punishments such as terms of imprisonment, the
tests of some meaningful and legitimate penological purpose, plus the
absence of obvious disproportionality between offense and punishment,
may strike a balance between Bradford's broader and generally
admirable principles derived from Montesquieu and Beccaria; a fair
scope for different correctional approaches and philosophies, always
within the bounds of basic humanity; and the practical limits of the
courts in reviewing discretionary legislative judgments.
In Section 10, I consider possible implications for the Supreme
Court's general Eighth Amendment jurisprudence. For now, it may
suffice to say that applying a test of "absolute necessity" to the
death penalty, based on values of the Founding Era, need not
invalidate the _Trop_ line of precedents or the Court's overall
approach to the Cruel and Unusual Punishments Clause as applied to
noncapital cases of various kinds.
Having laid out his principles of punishment, Bradford specifically
addresses the standard to be applied to the choice between the death
penalty and "perpetual imprisonment" -- precisely the choice we
confront 222 years later, given the very widespread use of LWOP by
retentionist and abolitionist jurisdictions alike in the U.S.A. His
language points to an issue of constitutional stature:
"[W]hen a criminal is put to death, it is not to revenge the
wrongs of society, or of any individual -- `it is not to recall
past time, and to undo what is already done;' but merely to
prevent the offender from repeating the crime, and to deter
others from its commission, by the terror of the punishment. If,
therefore, these two objects can be obtained by any penalty short
of death, to take away life, in such case, seems to be an
unauthorised act of power." Id. at 8.
The phrase "unauthorised act of power" seems equivalent to an
unconstitutional act of power, especially given Bradford's remarks
about the state constitutions and his praise for Maryland's provision,
as he interprets it, against unnecessary "sanguinary" (i.e. capital)
punishments. He emphasizes the ability of "perpetual imprisonment" to
achieve at least the first of the two relevant penal goals he
addresses, namely incapacitation of the offender and deterrence of
others:
"That the first of these may be accomplished by perpetual
imprisonment, unless the unsettled state, the weakness or
poverty, of a government prevents it, admits of little
dispute. It is not only as effectual as death, but is attended
with these advantages, that reparation may sometimes be made to
the party injured -- that punishment may follow quick upon the
heels of the offence, without violating the sentiments of
humanity or religion -- and if, in the course of years, the
offender becomes humbled and reformed, society, instead of
losing, gains a citizen." Id. at 8.
This leaves the question of deterrence, which Bradford discusses,
especially in relation to the crime of aggravated murder or
"deliberate assassination" as he styles it, at some length; thus see,
e.g., pp. 9-10, 19-35. While cautiously foreseeing that "a few years
experience" with the death penalty reserved for this crime alone may
lead to total abolition, id. at 33, and noting that some members of
the Pennsylvania Senate on February 22, 1793, had already expressed
their doubts "whether the terrible punishment of death be in any case
justifiable and necessary in Pennsylvania," 39 at *, he offers some
advice still relevant today:
"Whatever be the punishment inflicted on the higher degrees of
murder, it ought to be different from that of every other
crime. If not different in its nature, at least let there be some
circumstance in it calculated to strike the imagination -- to
impress a respect for life -- and to remove the temptation which
the villain otherwise has, to prevent the discovery of a less
crime, by the commission of a greater." Id. at 33.
As indicated by a footnote to this passage, Bradford has in mind the
situation addressed by Montesquieu, where setting the same penalty for
robbery and murder encourages robbers to kill their victims and lessen
the risk of detection without increasing the possible penalty. Modern
statutes which impose LWOP for killing a victim in the course of
another felony such as a robbery or burglary in order to avoid
identification, in drastic contrast to the term for the same felony
where the victim is unharmed, follow Bradford's advice.
In 1793, the novelty of Pennsylvania's new prison system may have made
it seem prudent, in approaching abolition of the death penalty for the
most heinous murders, "to tread with caution on such delicate ground,
and to proceed step by step in so great a work," id. at 33.
Today, the result of applying Bradford's "absolute necessity" test is
clear: the death penalty under 21st-century conditions in the
U.S.A. is indeed an "unauthorised power" under the Eighth Amendment.
-----------------------------------------------------------------
9. The Pennsylvania Legislature (1794): Affirming Bradford's test
-----------------------------------------------------------------
On April 22, 1794, the Pennsylvania Legislature enacted the reform
legislation sketched out and advocated by Bradford, who by this point
had been appointed as the new Attorney General of the United States.
As part of the preamble to Chapter MDCCLXXVII [1977] reforming the
criminal laws and restricting the death penalty only to the newly
defined crime of murder in the first degree, much as Bradford had
proposed, the Legislature included the following language:
"And whereas it is the duty of every government to endeavor to
reform, rather than exterminate offenders, and the punishment of
death ought never to be inflicted where it is not absolutely
necessary to the public safety. Therefore:..."
,
This language confirms that the test of "absolute necessity" was a
widespread "view of society" during the Founding Era, _Roberts (Harry)
v. Louisiana_, supra, 431 U.S. 633, 642 (Rehnquist, J., dissenting),
here voiced less than three years after the ratification of the Eighth
Amendment.
The preference for reforming rather than exterminating offenders, also
found in the New Hampshire Constitution of 1784 (Section XVIII of the
Bill of Rights, June 2, 1784) -- "The true design of all punishments
being to reform, not to exterminate, mankind" -- evidently alludes to
Blackstone's Fourth Book (1769), where he addresses at length the
moral and administrative problems raised by England's "multitude" of
capital statutes:
"It is, it must be owned, much _easier_ to extirpate than to
amend mankind: yet that magistrate must be deemed both a weak and
a cruel surgeon, who cuts off every limb, which through ignorance
or indolence he will not attempt to cure." Blackstone, 4
_Commentaries_ 17-18 (1769).
Thus, by 1794, the test of absolute necessity for the death penalty,
and the sense of humanity that underlies it, enjoyed the widespread
support of Founders, Framers, First Jurists, and legislators.
Today, 221 years later, as we confront the judicial and human rights
dilemmas of a Republic which has advanced dramatically in so many
ways, but where the death penalty is still retained by the federal
government and 31 States (as of June 2, 2015), this 18th-century
standard may provide a principled Eighth Amendment approach to resolve
the question of capital punishment under 21st-century conditions.
---------------------------------------
10. Some ramifications and implications
---------------------------------------
A prime advantage of the "absolute necessity" test is that it goes
back to the Founding Era, and reflects very widespread values of that
era, which Justice Bradford views as of constitutional stature. When
the precepts and values of that era can solve a problem, such as a
standard of review for the death penalty under the Eighth Amendment,
then it seems preferable to apply such an enduring and perhaps
unjustly neglected standard rather than devise some novel solution.
Indeed, while Montesquieu and Beccaria are the font of much
18th-century penology, as reflected in our sources above, the moral
and spiritual values behind the absolute necessity test far predate
that era. The 17th-century English divine Jeremy Taylor (1613-1667),
who lived through a period of civil wars and social upheaval whose
lessons helped to shape our own Constitution, eloquently expresses
these values, while also revealing some of the assumptions about crime
and punishment that limited his range of perceived ethical choices.
In _Ductor Dubitantium, or the Rule of Conscience_ (1660) -- the Latin
portion of the title meaning "Guide for those in Doubt" as to moral
predicaments, Taylor addresses the dilemmas of the death penalty for a
Christian:
"For in Christianity, men are not easily permitted to touch
blood; not hastily to intermeddle in the causes of blood; not to
give sentence for the effusion of it; these things are to be done
with great caution, and a slow motion, and after a loud call, and
upon a great necessity, because there are two great impediments;
the one is the duty of mercy, which is greatly required and
severely exacted of every disciple of Christ; and the other is,
that there is a soul at stake whose blood is to be shed, and then
they are told, that as they judge, they shall be judged, -- as
they measure, it shall be measured to them again." 13 _The Whole
Works of the Right Reverend Jeremy Taylor_ 390-391 (1822)
Here Taylor speaks in plain English of "causes of blood" or capital
cases; and of giving sentence "for the effusion" of blood; while a
learned usage starting around this same time, 1660, will speak of
"sanguinary" laws or punishments, as noted in Section 8 above. For
Taylor, as for Blackstone, Eden, or Wilson a full century later, the
death penalty could be justified only "upon a great necessity," or
what he also terms "an unavoidable necessity," id. at 391.
In explaining why capital punishment can sometimes be justified,
Taylor advances an argument in precisely these terms:
"Now that some sorts of people should be put to death is so
necessary, that if it were not done it would be certainly,
directly, and immediately, very great uncharitableness; and the
magistrate should even in this instance be more charitable than
he can be supposed to be in putting the criminal to death."
Id. at 311.
For his illustration, Taylor chooses "a highway thief and murderer,"
ready to kill many unwary victims if society does not intervene. He
then presents the reader with two alternatives if such a killer is
permitted to live:
"If all such persons were to be free from afflictive punishments,
the commonwealth would be no society of peace, but a direct state
of war, a state most contrary to governments; but if there were
any other less than death, the galleys, and the mines, and the
prisons, would be nothing but nurseries of villains, which by
their numbers would grow as dangerous as a herd of wolves and
lions: and if ever they should break into a war, like Spartacus
and his rabble, who knows how many souls should be sent to hell
for want of time to finish their repentance." Id. at 311.
Thus Taylor assumes that at least the most violent criminals such as
those who rob and kill their victims, if sentenced to the "afflictive
punishment" of prison, might organize a kind of uprising like of the
slave Spartacus in Roman times, plunging the realm into a civil war
more horrible than those that he himself had lived through in England
during the period 1642-1648.
If Taylor had lived in a society where the safe and humane
imprisonment of the worst criminals appeared to be within reach, as it
did for many of the leading writers and reformers of the Founding Era,
then the tests of "great necessity" or "unavoidable necessity" might
have led him to a different conclusion -- and yet more so in a country
where life imprisonment for such offenders is the rule, and execution
the rare exception, with many of its jurisdictions having long and
continuing histories of abolition.
In other words, Taylor's "great necessity" or "unavoidable necessity"
in 1660 may be essentially the same standard as Blackstone's "highest
necessity" or Bradford's "absolute necessity," with the appropriate
standard to be applied under the Eighth Amendment in 2015 also
essentially the same. What changes and evolves is not the standard
itself, but social conditions and assumptions.
From this perspective, the inestimable contribution of the 18th
century, with the Founding Era of premier importance, was an approach
combining two vital elements: a criminal code with carefully scaled or
proportioned punishments so as better to satisfy the needs of rational
deterrence and intuitive justice alike; and institutions designed for
the secure confinement and, insofar as possible, the reformation of
even the most dangerous criminals.
Reading the Eighth Amendment in this proper context, and applying the
absolute necessity test accordingly, we easily reach the conclusion
that in 2015, the death penalty is "unnecessary," and therefore
unconstitutional.
One basic indicator of this reality is the state of affairs reported
by Justice Elena Kagan, writing for the Court in _Miller v. Alabama_,
567 U.S. ___, ____, 132 S. Ct. 2455, 2468 n. 7 (June 25, 2012), and
observing that juveniles sentenced to life without parole are
receiving the same punishment as almost all adults sentenced for
comparable crimes:
"7. Although adults are subject as well to the death penalty in
many jurisdictions, very few offenders actually receive that
sentence. See, e.g., Dept. of Justice, Bureau of Justice
Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony
Sentences in State Courts 2006 -- Statistical Tables, p. 28
(Table 4.4) (rev. Nov. 22, 2010). So in practice, the sentencing
schemes at issue here result in juvenile homicide offenders
receiving the same nominal punishment as almost all adults, even
though the two classes differ significantly in moral capability
and capacity for change."
If we apply the Founding Era test of absolute necessity, then the rare
and often arbitrary application of the death penalty, while society
continues without the proverbial sky falling down, is compelling
evidence that the death penalty is in fact unnecessary, and cannot
pass muster under the Eighth Amendment. This test is in fact a
cardinal exception to the rule of deferring to legislative judgment
and the usual democratic process, given the unique gravity of taking
the life of a subdued prisoner under color of law.
To subject death penalty statutes to the most strict scrutiny under
the Eighth Amendment is in no way to demean the legislators or voters
who enacted them, or in some cases simply permitted them to remain in
place; but rather to honor the values embedded in the common law maxim
_In favorem vitae_, to lean "in favor of life." The writings of the
Founding Era I have surveyed grow out of this yet deeper tradition.
In fact, Justice Thurgood Marshall, in _Furman v. Georgia_, supra,
408 U.S. 238, 319 and n. 21, 332, and 336-337 and nn. 57-60 (1972)
(concurring opinion), sketched out the basis for essentially this
approach, notably citing Justice Bradford as well as Benjamin Rush and
Samuel Livermore.[3]
As Justice Marshall suggests by some of his language, a decision
striking down a large number of statutes adopted by various
jurisdictions may be most credible if it can draw on clear values of
the Founding Era itself. From this perspective, let us consider some
of the possible ramifications of such a decision in the near future
finding the death penalty to fail the test of absolute necessity, and
thus to be unconstitutional under the Cruel and Unusual Punishments
Clause.
One consequence might be a scale of Eighth Amendment scrutiny summed
up about like this:
(1) EXCLUDED PUNISHMENTS. These include the rack, stake, gibbet;
hanging, drawing, and quartering; torture; etc. No test is
necessary, even as a formality: such punishments are regarded
as inherently unconstitutional.
(2) STRICT SCRUTINY. The death penalty uniquely belongs to this
category, where the Founding Era test of "absolute necessity"
applies, and in the 21st century we can categorically assert
that capital punishment fails this test. In a society with a
modern prison system, our result is the same as with
punishments in Category (1).
(3) INTERMEDIATE SCRUTINY. Sentences of life imprisonment which
either expressly rule out the possibility of parole or
release, or otherwise define prison terms effectively
entailing the same result (e.g. irreducible sentences of 100
years or more), and especially when applied to juveniles, may
call for special substantive or procedural safeguards. The
recent decision in _Miller v. Alabama_, supra, is a good
example.
(4) USUAL RATIONAL REVIEW. Here is there is a general presumption
that the legislature has acted reasonably, and the punishment
is constitutional. However, a challenge is still possible if
the penalty is grossly disproportionate to the offense, or
makes no substantial contribution to any legitimate
penological purpose. As established in various cases since
_Trop v. Dulles_ (1958), both the national legislative
practice and the reasoned judgment of the Court itself can
serve vital roles in evaluating questions of proportionality.
Here my purpose is not necessarily to advocate a formal system of
discrete tiers for Eighth Amendment scrutiny, the kind of approach not
evidently so favored in the field of equal protection by jurists such
as Justice Anthony Kennedy of SCOTUS or Judge Richard Posner of the
U.S. Court of Appeals for the Seventh Circuit. It is, however, to make
one vital point.
The test of strict scrutiny or "absolute necessity" for the death
penalty -- borrowing from the language of equal protection, we might
also say a truly "compelling" necessity -- is _sui generis_, and
distinct from any other Eighth Amendment test, including the "evolving
standards of decency" test codified in _Trop_.
When the death penalty is in question, the absolute necessity test
takes priority, and mandates the Court's independent judgment as to
whether the penalty is in fact "absolutely necessary," whatever views
legislatures or public opinion polls may take. That is the nature of
strict scrutiny: the death penalty may in appearance or reality serve
various legitimate penological objectives, and still fail the test if
the "public safety" or "the safety of the State" can otherwise be
preserved.
It is quite possible to imagine, in the not-too-distant future, that
the death penalty might fail not only the necessity test, but also the
usual _Trop_ test -- for example, if the vast majority of the States
were to do as Nebraska has done, and legislatively achieve abolition.
However, if we regard the "absolute necessity" test as of
constitutional stature, then the prevention of unnecessary executions,
and also of the prolonged Death Row confinement that is a routine
feature of our "modern" (i.e. post-_Furman_) death penalty era, is a
proper function of the judicial branch.
A more subtle point is that although, under modern conditions, the
death penalty so clearly fails the absolute necessity test that it may
seem much like such practices as burning at the stake that are iconic
of the phrase "cruel and unusual," this equation did not hold, at
least not so clearly, during the Founding Era itself. The novelty of
the modern prison system, just taking shape at that time, provides one
ready explanation.
Indeed some writers such as Benjamin Rush, see Section 6, did draw an
equation between the rack and stake on the one side, and the gallows
as well as the whipping post on the other. However, others such as
Representative Livermore took the latter two punishments as familiar
and more or less axiomatic -- at least until some effective substitute
were demonstrated to them, which for Livermore in 1789 had not yet
been done.
Perhaps the most relevant feature of the test of "highest necessity"
or "absolute necessity" is that during the Founding Era it was not
only invoked by abolitionists, but also by writers such as Blackstone
or Eden who regarded the death penalty as necessary in at least some
cases. The test is not itself an answer, but simply asks a question
equally appropriate to either the 18th or 21st century: whether the
death penalty is the only available means of defending the public
safety.
The most curious thing about the absolute necessity test may be that,
although well-known in the Founding Era, it has played little rule in
the Eighth Amendment death penalty jurisprudence of the Supreme Court.
The early method of execution cases such as _In re Kemmler_, supra,
(1890), held that such methods as electrocution or shooting, not to
mention the long-prevailing practice of hanging, did not fall in the
same intrinsically "cruel and unusual" category as burning or drawing
and quartering. These new methods appeared to be, or at least were
intended as, innovations scientifically designed to minimize if not
eliminate any physical pain, leaving only "the sufferings inseparable"
from any capital execution, as Eden put it in 1771, _Principles of
Penal Law_, supra, at 22; or "the mere extinguishment of life," as
_Kemmler_, 136 U.S. at 447, put it over a century later.
What the Court did not ask in cases like _Kemmler_, perhaps because
the issue was not raised, was whether the death penalty itself was
necessary. Without the absolute necessity test, there may prevail a
jurisprudence of least resistance: if the death penalty was not
generally deemed self-evidently "cruel and unusual" in 1791, then it
must be constitutional regardless of any changes in social conditions
or advantages of historical perspective and experience (Bradford's
"progress of civilization") that help us to recognize that it is
objectively unnecessary now.
We therefore find ourselves in a situation where going back to one of
the basic principles for such esteemed figures of the Founding Era as
Blackstone, Eden, Jefferson, Wilson, and Bradford offers us what may
be the best constitutional tool for boldly cutting the Gordian knot of
the "cruel and unnecessary" death penalty, as Pope John Paul II
described it (Homily in St. Louis, Missouri, January 27, 1999),
[4], and moving forward to
address the many other challenges of our 21st-century criminal justice
system.
-----
Notes
------
1. Jefferson's original 1778 draft of this proposed "Bill for
Proportioning Crimes and Punishments, in Cases Heretofore Capital,"
and versions considered by the Virginia Legislature during the period
from 1779 to 1785 (when the measure failed by one vote) have become
famous, or rather notorious, for a feature that Jefferson predicted
"will be revolting to the humanised feelings of modern times." This
was a _lex talionis_ or "law of retaliation" that prescribed maiming
for maiming. As he continued in his letter of November 1, 1778 to
George Wythe: "An eye for an eye, and a hand for a hand, will exhibit
spectacles in execution whose moral effect would be questionable; and
even the membrum pro membro [i.e. "a member for a member"] of Bracton,
or the punishment of the offending member, although long authorised by
our law, for the same offence in a slave, has, you know, been not long
since repealed, in conformity with public sentiment." Jefferson, 1
_Memoirs, Correspondence, and Private Paper_, supra, at 122. In his
memoirs, id. at 37, he adds of the _lex talionis_, "How this revolting
principle came to obtain our approbation, I do not remember." Happily,
this feature of the bill did not become part of Virginia's criminal
law reform adopted in 1796, or Kentucky's in 1798. Less happily, the
real-life practice of mutilations and disfigurements under slave
codes, and also burning alive as late as 1830 in South Carolina,
signal the racism that is still with us today.
2. See _Miles v. State_ (Court of Appeals of Maryland, No. 36,
September Term 2012, November 25, 2013),
. Among other
things, the Court, id. at 19-24, held that the provision "That
sanguinary laws ought be avoided, as far as is consistent with the
safety of the State" was not in 1776 retroactive, and so would in no
event apply to the death penalty for murder as a feature of common law
at that time, nor to successor capital statutes for that crime. The
Court also pointed to capital statutes and executions in Maryland
after 1776 as evidence that Article 14 -- now Article 16 -- had not
"proscribed capital punishment for any offense, including murder, that
did not impact state security," id. at 7. Justice Bradford's reading
in 1793, while not, of course, binding on the Maryland Court, is to me
the best. Note that Maryland legislators in 1776 who agreed with
Beccaria's claim that the death penalty was unnecessary for any crime
except possibly what we would now call state security offenses in
times of revolution or the like, and others who shared Eden's view
(Section 4 above) that "[c]apital executions are in all states
necessary," and specifically for the crime of "deliberate murder,"
_Principles of Penal Law_, supra, at 21, 222-223, could have joined in
adopting Article 14, while differing on the possible results of the
necessity test which Bradford reasonably reads into this clause.
3. One historical detail in Justice Marshall's opinion might admit of
qualification, _Furman v. Georgia_, supra, 408 U.S. at 336-337: "The
`Enquiries' of Rush and Bradford and the Pennsylvania movement for
abolition of the death penalty had little immediate impact on the
practice of other States." The adoption of statutes largely modelled
after Pennsylvania's reforms of 1794, including the restriction of the
death penalty to the newly defined crime of murder in the first
degree, by Virginia (1796) and Kentucky (1798) -- sadly, in these two
States, for "free persons" as opposed to slaves -- mark in a sense a
confluence of the Pennsylvania movement with the reform efforts of
Jefferson and Wythe in Virginia in 1778-1785, and John Breckinridge in
Kentucky after his relocation there from Virginia in 1793.
4. In finding the death penalty under modern conditions "both cruel
and unnecessary," Pope John Paul II was applying the teachings of the
Church as formulated in his encyclical _Evangelium Vitae_ (March 25,
1995), holding in Paragraph #56 that the death penalty would be
justifiable only "in cases of absolute necessity: in other words, when
it would not be possible otherwise to defend society."
.
In 1997, the Catechism was updated, see Paragraph #2267, to
incorporate this standard of "absolute necessity" (Latin _absolute
necessarium_), stating the basis upon which Pope John Paul II and his
successors have called for universal abolition of the death penalty in
the modern world: "If, however, non-lethal means are sufficient to
defend and protect people's safety from the aggressor, authority will
limit itself to such means, as these are more in keeping with the
concrete conditions of the common good and more in conformity to the
dignity of the human person."
.
This language of "absolute necessity" is identical to that of the
Founding Era standard in one of its most common forms. At the same
time, the famous assertion in _Trop v. Dulles_, supra, 356 U.S. at 100
(1958) that "[t]he basic concept underlying the Eighth Amendment is
nothing less than the dignity of man" corresponds with the Catechism's
focus on "the dignity of the human person."
Margo Schulter
12 June 2015
Corrected version
4 July 2015