----------------------------------------------------------- Back to the Future with the Eighth Amendment: Today's Death Penalty and Founding Era Standards of Decency by Margo Schulter ----------------------------------------------------------- -------------------------------------------------------- 1. Introduction: Strictly scrutinizing the death penalty -------------------------------------------------------- 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. ---------------------------------------- 2. Evolving standards vs. evolving facts ---------------------------------------- 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. ---------------------------------------------------------------- 3. William Blackstone (1765) and the Fifth and Eighth Amendments ---------------------------------------------------------------- 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. ----------------------------------------------- 4. William Eden (1771) and "absolute necessity" ----------------------------------------------- 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