We the People: Cruel and Unusual Punishment

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Speaker 2 A note before we get started, this episode includes descriptions and discussion of violent acts, including murder and execution.

Speaker 3 Utah, 1877.

Speaker 3 A man named Wallace Wilkerson stops by a saloon.

Speaker 3 He starts by playing a game of cards with another man named William Baxter.

Speaker 3 An argument starts.

Speaker 3 Wilkerson takes out a gun,

Speaker 3 shoots Baxter in the head, killing him, and then he flees.

Speaker 3 Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed the next month.

Speaker 4 Utah was not yet a state. It was a federal territory.
And it was settled then, as now, by Mormons.

Speaker 4 And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders.

Speaker 4 So he didn't want to use hanging because you don't bleed when you're hanged, but you do bleed when you're shot. And so Mormon Territory used the firing squad as a form of execution.

Speaker 3 Wilkerson was sentenced to be executed by a firing squad, a sentence that was challenged all the way up to the U.S.

Speaker 3 Supreme Court, which had to decide whether a firing squad violated Wallace Wilkerson's Eighth Amendment rights.

Speaker 4 All right, here's the original text of the Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Speaker 2 Cruel and unusual punishments. A term that was adopted from England and meant to protect the people from a tyrannical government.
But what was cruel and unusual punishment?

Speaker 4 So, what's interesting, the court first says, very hard to know what this means.

Speaker 4 But then they go on to say, the one thing we can say with some certainty is that it had something to do with torture, that torture's not good.

Speaker 4 And they reference things that they would be pretty sure would be cruel and unusual punishment:

Speaker 4 drawing and quartering, disemboweling, burning at the stake.

Speaker 4 My name is Carol Steicher. I'm a professor at Harvard Law School.
I'm the author of Courting Death: The Supreme Court and Capital Punishment.

Speaker 4 In 1878, the question was whether firing squads were cruel and unusual punishment. Court says that's not torturous, it's not unnecessary cruelty.
And we know that because

Speaker 4 we've used it a lot as a punishment for deserters in wartime.

Speaker 4 So the court says we don't have a problem with the firing squad as cruel and unusual punishment.

Speaker 4 But they also said we're not entirely sure what its contours are. It just doesn't reach this far.

Speaker 2 On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30 feet away.

Speaker 2 He made a short speech and said he hoped God would forgive him. Then, three concealed gunmen fired.

Speaker 2 He continued breathing for 27 minutes before being pronounced dead.

Speaker 2 Almost 150 years later, the firing squad is still a legal way to execute someone in five states.

Speaker 5 South Carolina's highest court says death row inmates there may choose to die by firing squad, electric chair, or by lethal injection.

Speaker 2 The death penalty is still constitutional, but debates over what exactly is cruel and unusual are ongoing and wide-ranging.

Speaker 6 The state opted for a never-before-used nitrogen gas method, despite concerns voiced by several human rights groups and the UN that it could amount to torture.

Speaker 9 A recent poll showed a growing number think the death penalty is applied unfairly.

Speaker 10 The Supreme Court says it is unconstitutional to sentence juveniles to life in prison without parole for the crime of murder.

Speaker 1 You've taken the position, as have others, that solitary is torture.

Speaker 7 Solitary is a total degradation of a human life.

Speaker 11 I'm uncomfortable using words like solitary and torture.

Speaker 13 The Supreme Court also cleared the way for cities to enforce bans on homeless people sleeping outside in public places.

Speaker 13 Every citizen deserves the right to sleep in the richest country in the history of the world.

Speaker 3 So what is cruel and unusual punishment? Who gets to define and decide its boundaries? And what do we know about how the people who wrote the Eighth Amendment imagined its meaning might change?

Speaker 3 I'm Ramteen Arab Louis.

Speaker 2 And I'm Ran Dhabd Fettah.

Speaker 2 On today's episode of Through Line from NPR, the latest installment in our We the People series, where we look at the past, present, and future of amendments to the U.S.

Speaker 2 Constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.

Speaker 3 Coming up, the Eighth Amendment and what cruel and unusual actually means.

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Speaker 2 This is Dawn Hawkins from Lawrence, Kansas. You're listening to ThruLine, the show that answers the question, how did we get here?

Speaker 3 Part 1.

Speaker 14 The Bloody Assizes

Speaker 2 When the founders wrote the Eighth Amendment, they had a lot on their minds.

Speaker 2 They were building a completely new government, but they were also still very much influenced by continental Europe and by England, because even there, things had been changing.

Speaker 4 So there was a really unpopular king.

Speaker 2 England in the late 1600s, a century before the U.S. was founded.

Speaker 4 King James II,

Speaker 4 who was Catholic and was thought to be favoring Catholics over Protestants, so there was a lot of Catholic-Protestant tension.

Speaker 2 The king's own nephew, the Duke of Mommoth, a Protestant, wanted to overthrow him. So in the summer of 1685, he gathered a few thousand men.

Speaker 2 It would be known as the Mommoth Rebellion. The rebels won a few small battles, but were ultimately defeated by the royal army.

Speaker 4 King James was not happy about that and wanted to punish hundreds and hundreds of people who he felt were involved in some way in this rebellion against him.

Speaker 2 The Duke of Monmouth was led to the Tower of London, where he was executed. Then a series of trials began.

Speaker 4 Known now historically as the Bloody Assizes.

Speaker 4 Court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.

Speaker 2 Hundreds were executed.

Speaker 4 Some in really grotesque ways, like being drawn and quartered, which means having your four limbs tied to four horses who would be sent off in different directions to pull your body apart.

Speaker 4 Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will.

Speaker 4 Many of them were publicly flogged brutally or put in pillories.

Speaker 2 The bloody assizes only added to the fear and hatred that many in England already had for King James II.

Speaker 2 And a few years later, he was overthrown in what's known today as the Glorious Revolution, in which the king's own men deserted him, leaving him to flee the country and die in exile.

Speaker 2 The seeds of democracy in England had been sown.

Speaker 4 So we're talking four years after the bloody assizes, the English Bill of Rights was passed and makes specific reference to the depredations of King James II.

Speaker 2 The English Bill of Rights was established by Parliament, outlining civil rights and limiting the power of the monarchy. Included was language that would show up in the U.S.

Speaker 2 Bill of Rights more than 100 years later.

Speaker 15 That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Speaker 3 Around the same time, a movement was brewing, one led by intellectuals around Europe. who celebrated reason and knowledge and freedom and pushed the world toward more humanitarian ideals.

Speaker 3 It was the beginning of the Enlightenment, and one Italian philosopher would be especially influential to the American founders, Cesare Beccaria.

Speaker 12 Beccaria was part of a group in Milan called the Academy of Fists.

Speaker 3 The Academy of Fists, which definitely sounds like the name of a pop-punk band from the 90s, got its name because sometimes their intellectual debates would lead to fights. I know, ironic.

Speaker 3 But when they weren't fighting, they were thinking.

Speaker 12 So he wrote an essay, for example, on smuggling, in which he used algebra to try to calculate the optimal punishment for smuggling.

Speaker 12 He studied the chances of statistical probabilities of winning a card game.

Speaker 3 And in 1764, he wrote a book opposing torture and the death penalty.

Speaker 12 That book was translated into English as an essay on crimes and punishments.

Speaker 3 On crimes and punishments.

Speaker 12 The book was novel because it was the first book really to make a comprehensive case against the death penalty.

Speaker 3 The book also argues that any punishment should be proportional to the crime, which wasn't the case in much of Europe at that time.

Speaker 3 The English Bill of Rights didn't apply to the rest of Europe, where torture was common.

Speaker 12 And he initially published this book anonymously because of his fear of being persecuted.

Speaker 3 And then the book kind of blew up and he became known even in America.

Speaker 12 This book became kind of the equivalent of a New York Times bestseller for its day.

Speaker 3 This is John Bessler.

Speaker 12 I'm a professor of law at the University of Baltimore School of Law, and I also teach as an adjunct professor at the Georgetown University Law Center.

Speaker 3 He's also authored a number of books about the death penalty, including one called The Death Penalty's Denial of Fundamental Human Rights.

Speaker 12 This book was read by George Washington. James Madison recommended the Library of Congress purchased the book,

Speaker 12 and Thomas Jefferson had multiple copies of the book in different languages.

Speaker 12 Benjamin Franklin, a number of founders were enthralled by Beccaria's ideas.

Speaker 3 They would quote Beccaria as tensions between the colonies and Great Britain intensified in the late 1700s, and they were looking to enlighten thinkers like him as they imagined a new country free from the crown.

Speaker 3 His essay on crimes and punishments was so influential that John says it helped catalyze the American Revolution and what would become America's new criminal justice justice system.

Speaker 4 The founders of the country wanted to bring the original 13 colonies together in a single new government.

Speaker 4 And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from.

Speaker 4 Here they were creating a new national head called a president, but what if he turned out to be like a king?

Speaker 2 To separate themselves from the British and the monarchy, during the American Revolution, states started writing their own constitutions.

Speaker 12 So we have to look first at

Speaker 12 the state constitutions.

Speaker 12 And what we see is that George Mason, who was the drafter of the Virginia Declaration of Rights, he just cobbled together a bunch of the rights that were in the English Bill of Rights, including this prohibition against cruel and usual punishments, and included it in the Virginia Declaration of Rights in 1776.

Speaker 2 It wasn't just Virginia. State after state adopted similar language around cruel and unusual punishment in their state constitutions.

Speaker 4 And then when the original Constitution was proposed, before there was a Bill of Rights added to it, it was the delegation from Virginia that suggested that the Eighth Amendment be added to it.

Speaker 12 And it was Madison, who is also from

Speaker 12 Virginia, who decided that that language should be included in the U.S. Bill of Rights in 1791.

Speaker 12 James Madison actually made a short revision to the language. In England, the prohibition said ought not.

Speaker 12 So it was more hoardatory in nature. And in the American version, it says shall not inflict cruel and unusual punishments.

Speaker 4 The framers saw themselves not only as learning from the past, but as going further and breaking from the past. These guys were revolutionaries.

Speaker 4 I mean, we think of them today as like old dead guys, you know, who are on the dollar bill or whatever, but they really saw themselves as revolutionaries in many ways, including in punishment practices.

Speaker 2 But there was still a big question about cruel and unusual.

Speaker 12 There was some uncertainty about what it actually meant.

Speaker 12 It's kind of breadcrumbs in a way.

Speaker 12 When you look back at the history of this originally, there's a few comments that are made.

Speaker 4 At least one person

Speaker 4 during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?

Speaker 2 That comment came from William Smith, a representative from South Carolina.

Speaker 12 who objected to the words, nor cruel and neutral punishments, saying the import of them being too indefinite. So he's encapsulating the idea that this this is a very general prohibition.

Speaker 12 There were other people like James Iredell from North Carolina who said it would have been ridiculous essentially to categorize all the different punishments that were considered cruel and usual at that time.

Speaker 2 And then there was the most substantial comment from Samuel Livermore of New Hampshire.

Speaker 7 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.

Speaker 7 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.

Speaker 7 It is sometimes necessary to hang a man. Villains often deserve whipping and perhaps having their ears cut off.

Speaker 7 But are we, in future, to be prevented from inflicting these punishments because they are cruel?

Speaker 7 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.

Speaker 7 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.

Speaker 12 Livermore suggested, well, it's going to be for the courts to actually give some,

Speaker 12 essentially, some teeth to this prohibition because we're not defining it explicitly.

Speaker 4 So there was some question about, like, what does this language exactly mean and which practices that we now accept as sometimes necessary are going to be deemed to be cruel and unusual going forward.

Speaker 12 Now, in spite of his objection to the inclusion of this language, the first Congress adopted what became the language of the Eighth Amendment, the record reflects by a considerable majority.

Speaker 2 The Eighth Amendment was ratified in December of 1791. And for the next century, that was about it.

Speaker 2 Until the Supreme Court gave it another look.

Speaker 2 That's coming up.

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Speaker 3 Part 2.

Speaker 14 Infamous Punishments.

Speaker 3 Once the Eighth Amendment was ratified in 1791, it didn't really come up again until the end of the 1800s when two death penalty cases reached the U.S. Supreme Court.

Speaker 3 There was the case in Utah where the court said the firing squad was constitutional, and the second case where the court allowed the country's first execution by the electric chair.

Speaker 3 That execution did not not go smoothly, but the status quo didn't change.

Speaker 3 The big turning point for the Eighth Amendment's cruel and unusual punishment clause actually didn't have anything to do with the death penalty at all. It didn't even happen on U.S.
soil.

Speaker 12 The first case where the U.S. Supreme Court really weighs in is in a case called Weems versus United States in 1910.

Speaker 12 And in that case, it was actually considering a punishment, kind of a bizarre punishment that was inflicted in the Philippines at that time the U.S.

Speaker 3 had essentially control over the island the Philippines actually had its own supreme court but the U.S. Supreme Court could overrule it

Speaker 12 and a guy named Paul Weems was working there and he was convicted of a crime

Speaker 3 The crime he was convicted of was falsifying records in an alleged attempt to redirect government funds to himself. He was tried according to Philippine law.

Speaker 12 And was actually sentenced to something called cadena.

Speaker 3 Cadena, translated, means chain.

Speaker 4 And he was sentenced to an incredibly harsh punishment.

Speaker 4 He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles,

Speaker 4 and then followed by a form of civil death in which he would be under surveillance and deprived of the right to vote or hold any office until the end of his life.

Speaker 4 Something that was a Philippine punishment, not really something that you would have found in the United States at the time.

Speaker 4 And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

Speaker 12 The Supreme Court looked at that punishment and said, that punishment is unconstitutional.

Speaker 18 It has no fellow in American legislation. Let us remember that it has come to us from a government of a different form and genius from ours.

Speaker 18 It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character.

Speaker 3 The court said the Philippine law had, quote, no fellow in American legislation.

Speaker 4 So sort of patting, you know, us Americans as being more advanced, if you will.

Speaker 3 And it went even further to begin to answer some of the big questions that the founders had when they wrote the Eighth Amendment.

Speaker 4 And there's some really interesting language written in Weems, and this is the language. I'm going to read it to you.

Speaker 4 Legislation, both statutory and constitutional, is enacted from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken.

Speaker 4 Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief that gave it birth.

Speaker 3 The court was developing the line of reasoning it had started in the late 1800s, emphasizing that as society changes, norms will change too.

Speaker 4 In former times, being put in the stocks was not considered as necessarily infamous, but at the present day, it might be thought an infamous punishment.

Speaker 3 In Weems, the court says explicitly, as the views of society change, the way we interpret the Eighth Amendment should change too.

Speaker 4 It's weirdest to apply originalism to the sort of deliberately vague provisions of the Constitution, or what some have called more poetically, the majestic generalities of the Constitution, like due process of law, or equal protection of the laws, or unreasonable searches and seizures, which has been interpreted to be about reasonable expectations of privacy, or cruel and unusual punishments.

Speaker 4 When the Constitution says the president needs to be 35 years old, that's not a majestic generality.

Speaker 4 But when the Constitution says no cruel and unusual punishments, and even at the time it's being debated, the ratifiers are saying, not entirely sure what that means, you know that it's being passed as a generality to be given content over time.

Speaker 3 By the way, I'm going to use that term majestic generality in an argument. If anyone's accusing me of being vague, I'm going to be like, it's just my majestic generality.

Speaker 3 I love that term. Wow.
How does Weems change the direction of the way we define this? And then how does that then kind of like interplay with the next big case?

Speaker 4 I think Weems gives a very poetic and ringing endorsement to a living constitutionalist view, you know, that

Speaker 4 the evil can't be specifically whatever it was at the time of the language. It has to be

Speaker 4 given a wider interpretation than the mischief that gave it birth.

Speaker 4 And Trope versus Dulles doubles down on that.

Speaker 19 Albert L. Trope versus John Foster Dulles.

Speaker 12 Get out.

Speaker 12 So there was a guy named Albert Trope who was a natural born citizen of the United States. He was serving in the Army in 1944.

Speaker 12 He actually escaped from an Army stockade in Morocco.

Speaker 19 And on the day following his escape, he had surrendered himself. And after he was taken into custody, he had been convicted by court-martial of desertion and dishonorably discharged.

Speaker 12 And then sentenced to three years at hard labor.

Speaker 4 Stripped of his American citizenship, but he didn't have any other citizenship. So he'd now be a stateless person

Speaker 4 with really no right to live anywhere. and be part of any political community.

Speaker 19 My position is that Congress has no power to destroy the nationality of a native born American.

Speaker 4 And the Supreme Court said that's cruel and unusual punishment.

Speaker 12 The Supreme Court said it violates the idea of a person's right to have rights. You couldn't deprive somebody of their citizenship because that's the basis of

Speaker 12 where they got their rights to begin with,

Speaker 12 including the right not to be subjected to cruel and usual punishments.

Speaker 12 So it was one thing to punish somebody for desertion by imprisonment, but it's a different thing to strip them of their citizenship.

Speaker 4 And to be honest, Justice Frankfurter dissented in saying, well, we execute deserters. So are you really saying that citizenship stripping is a fate worse than death?

Speaker 4 But that's what the court says in Trope versus Dulles, that citizenship stripping is cruel and unusual, even if they said we're not at this point willing to say that death is cruel and unusual.

Speaker 2 But there was something bigger buried in the Trope decision.

Speaker 4 They said the meaning of the Eighth Amendment should come from, and this is language the court thereafter repeats over and over, the meaning comes from the evolving standards of decency that mark the progress of a maturing society.

Speaker 2 Here, the U.S.

Speaker 2 Supreme Court is committing to the idea that what we consider cruel and unusual not only does change, but that it should change according to the evolving standards of decency that mark the progress of a maturing society.

Speaker 4 Now,

Speaker 4 that's not a lot clearer than cruel and unusual, but it

Speaker 4 bakes into the test the idea that these standards change, they evolve over time,

Speaker 4 and

Speaker 4 that they evolve in a progressive way, presumably toward decency

Speaker 4 and toward

Speaker 4 less harshness and punishment.

Speaker 2 But coming up, the political winds change.

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Speaker 3 Part 3

Speaker 14 wanton and freakish

Speaker 19 we feel that

Speaker 19 capital punishment in this case is unusual under the Eighth Amendment

Speaker 19 for two basic reasons.

Speaker 2 On January 17th, 1972, attorneys argued three cases before the Supreme Court known as Furman versus Georgia.

Speaker 2 In all of them, black men, two from Georgia, one from Texas, had been sentenced to death.

Speaker 19 The fact that it is used on identifiable minority

Speaker 19 and the fact that it has a historical pattern of use in the South upon blacks.

Speaker 2 When the Eighth Eighth Amendment was written, it didn't apply to black people who were enslaved in the U.S. But a lot had changed.

Speaker 2 More amendments were passed, like the 13th Amendment abolishing slavery and the 14th Amendment that gave equal protection of the laws to all people in the U.S.

Speaker 2 And things were changing globally too.

Speaker 4 So after World War II,

Speaker 4 not just in the United States, but in Europe and around the world, the death penalty really went into a deep nosedive. I think there was some real

Speaker 4 skepticism about the authority of governments to be able to order executions in the wake of the fall of Hitler and Mussolini. So the death penalty was very much questioned.

Speaker 4 It was forbidden in Germany and Italy's post-World War II constitutions. And even in the United States, it had really begun to fall into disfavor.

Speaker 4 And one of many reasons that it fell into disfavor, but a very significant one, was its racially discriminatory use, especially in the American South.

Speaker 2 And civil rights activists were paying attention.

Speaker 3 After the wins of the 1950s and 60s, lawyers with the NAACP turned their attention to the death penalty.

Speaker 4 They said, you know what? We should make this our next big thing. We should mount a constitutional litigation campaign to end the American death penalty as a matter of racial justice.

Speaker 3 There were historical reasons to launch this fight, too. The Eighth Amendment banned cruel and unusual punishment.

Speaker 3 So some southern states believe that meant a punishment had to be both to be unconstitutional, which means business as usual for white slave owners.

Speaker 12 If the enslaved were simply whipped or lashed with regularity, then it would not be an unusual punishment because it was a common punishment.

Speaker 3 Now, almost 200 years later, civil rights activists were trying to make the case that the way the death penalty was applied was unusual, and they started gathering data.

Speaker 4 They sent like a kind of

Speaker 4 sort of form of freedom riders. They sent a bunch of young people down to the South to go to courthouses.
This is before computers.

Speaker 4 If you wanted to find evidence about cases, you had to go to the courthouses and pull records.

Speaker 4 And they sent, you know, teams of young people down to southern courthouses to try to build a record about the racially discriminatory use of the death penalty.

Speaker 3 Attorneys argued before the Supreme Court that black men were overwhelmingly sentenced to death when compared to white men convicted of the same crimes. When a black man in Texas is convicted of rape,

Speaker 3 he has an 88% chance of receiving the death penalty.

Speaker 4 But as this litigation campaign picked up speed, they began to throw everything at the wall, every argument they could think of against the death penalty. And one of the big arguments was:

Speaker 4 standards of decency have evolved.

Speaker 3 Another one was that the death penalty could seem really arbitrary, and it varied from state to state.

Speaker 4 In the 1960s, the death penalty was much more broadly authorized than it is today.

Speaker 4 Like I've already said, you could get it for rape in addition to murder, but you could also get it in some states for armed robbery, for kidnapping, for arson.

Speaker 4 So it was very broadly authorized,

Speaker 4 and juries decide whether the death penalty should be imposed, not judges, and they were given no instructions whatsoever about who should get the death penalty.

Speaker 4 They were simply told, it is in your sole discretion, according to your conscience, whether to impose death or life or sometimes a lesser punishment. And so that was thought to be a

Speaker 4 due process problem that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.

Speaker 3 It was quiet until the end of the Supreme Court's term in June.

Speaker 3 And then

Speaker 4 astoundingly,

Speaker 4 they

Speaker 4 ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.

Speaker 3 That meant all executions had to stop until states changed their laws.

Speaker 4 The headline in the New York Times that announced that decision was the same banner as had announced men landing on the moon three years previously in 1969.

Speaker 4 It was that big a deal and that much of a surprise. Like nobody thought that that's what was going to happen, but that's what happened.

Speaker 20 It's restored my faith in the Supreme Court.

Speaker 20 The first that I heard was cheering and clapping of hands. Everyone was real happy, of course.

Speaker 20 It's kind of a shock, I guess you could say.

Speaker 4 So, Furman versus Georgia, 1972,

Speaker 4 the death penalty in the United States is, at one stroke of a pen, abolished across all 40 states that had it and the federal government.

Speaker 2 Hundreds of people on death row were spared. All had their sentences reduced to life terms, and many of them were released on parole.

Speaker 16 Warden Jack Caldwell of the Georgia State Prison went up to the cell block to tell the 22 prisoners under death sentence the good news.

Speaker 16 But the warden conceded to me that he was not entirely clear about the decision and its full meaning.

Speaker 4 The grounds for the decision were really hard to say.

Speaker 16 I explained to them that I was still confused.

Speaker 4 Because there are nine people on the Supreme Court, and every single one of them wrote his own opinion in this case. So there are nine different opinions in Furman versus Georgia.

Speaker 3 Wow, that's not, that's not like that.

Speaker 4 That does not happen. No, that does not happen.

Speaker 2 Nine justices, nine opinions. All of them suggested abolishing or limiting the death penalty in some way.
But that also created confusion.

Speaker 4 It's a 5-4 decision, very slim majority. So there are five majority opinions and four dissents.

Speaker 4 None of the people in the majority join anyone else's majority opinion. Some of the dissenters join in each other's dissents, but there's, you know, nine of them.

Speaker 4 And they all have something a little bit different to say.

Speaker 2 Two justices said the death penalty itself was unconstitutional. Another justice, William O.
Douglas, said that any law that treats people unequally is unconstitutional.

Speaker 4 He has a line that I think is really powerful where he says, when you have this like broad authorization and no standards to sentencing juries, a system like that is pregnant with discrimination.

Speaker 4 It's pregnant with discrimination. It will give birth to discrimination because it will give

Speaker 4 people's biases, you know, play in the decision-making process.

Speaker 2 The court had also heard a death penalty case the year before.

Speaker 2 And in the end, many people believe the Furman decision came down to just two justices, Potter Stewart and Byron White, who changed their minds.

Speaker 4 And they basically said the problem is not that, you know, Europe is getting rid of the death penalty and that it's per se unconstitutional.

Speaker 4 Instead, Stewart and White said it's the way that it's being applied with this broad authorization and no instructions. The most famous line is Justice Stewart's line.

Speaker 4 He said, these death sentences in these cases are cruel and unusual. The way being struck by lightning is cruel and unusual.
There's just no rhyme or reason about who gets the death penalty.

Speaker 4 And, you know, we would say it's like totally rando is what we would say today.

Speaker 4 What he said is it's wanton and freakish. the application of the death penalty.
Wanton and freakish, struck by lightning.

Speaker 3 And it's not that the punishment itself

Speaker 3 is intrinsically wrong.

Speaker 3 It's the way that that punishment is being applied, the lack of standardization for this, for when it is applied, that makes it something that's just untenable to still allow in the country.

Speaker 4 Exactly.

Speaker 3 We still have the death penalty in America, though.

Speaker 3 What the hell happened?

Speaker 4 Yeah, well, what

Speaker 4 was

Speaker 4 I think the justices

Speaker 4 miscalculated where standards of decency had evolved to, because there was

Speaker 4 a tremendous backlash to Furman. Someone stood up

Speaker 4 in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion.

Speaker 4 And between 1972 and 1976, 35 states and the federal government passed new death penalty statutes attempting to give the guidance that Stewart and White said was lacking in Furman so that they could keep the death penalty.

Speaker 4 And they start sentencing people to death.

Speaker 3 If you could sum up some of the basic reasons for why states and also the federal government quickly pushed back against this. What were their justifications?

Speaker 4 Charles Manson got off of death row. Sir Hanserhan, who had just shot Bobby Kennedy, you know, he got off of death row.
So people were kind of outraged.

Speaker 4 Like Charles Manson and Sir Hanser Han are not going to get executed.

Speaker 4 In California, with like almost instantaneously, you know, California has all of these initiatives and referendas, and the people passed by initiative, they amended the California Constitution to allow the death penalty.

Speaker 4 So you might have thought, doesn't California still have the death penalty? Yes, it does. But how do they do that if the California Constitution says you can't have it?

Speaker 4 Because the people instantaneously amended the Constitution after the California Supreme Court abolished it constitutionally.

Speaker 3 So 35 states and the federal government write new laws. Death rows around the country start to fill up again.

Speaker 4 There's no way the court can ignore that. It has to decide whether these new statutes are okay or not.

Speaker 2 The Supreme Court this week agreed to review the constitutionality of a sentence of death imposed by a North Carolina court on Jesse T. Fowler.

Speaker 4 They don't wait very long.

Speaker 3 In 1976, just four years later, the Supreme Court agreed to hear arguments for new death penalty laws from five states.

Speaker 4 Texas, North Carolina, Louisiana, Georgia, and Florida.

Speaker 4 What's interesting is there's two buckets of kinds of statutes. Like it upholds three of these new statutes, the ones from Georgia, Florida, and Texas, because it says that they do guidance.

Speaker 4 They guide the jury. They give the jury something to think about other than,

Speaker 4 you know,

Speaker 4 according to your conscience. So they say, okay,

Speaker 4 those statutes are okay.

Speaker 3 But the Supreme Court strikes down the laws in North Carolina and Louisiana because those statutes, the court said, proposed mandatory death sentences for certain crimes.

Speaker 4 In 76, the Supreme Court said, yeah, no, you can't have mandatory statutes. One is they said it's not really going to take care of the problem of discretion because

Speaker 4 juries, if they don't want the person to get the death penalty, they'll just find them guilty of second-degree murder. You know, that was a, that's always open to them.

Speaker 4 So it's just going to drive the discretion underground rather than getting rid of it.

Speaker 3 So the court ruled that in order to sentence people to death, juries had to hear, quote, mitigating evidence, evidence that might make them reconsider execution, like whether the convicted had a history of abuse, mental health issues, or even remorse.

Speaker 3 Without that step, the court said, the death penalty is unconstitutional.

Speaker 4 This is very poetic.

Speaker 4 It says it treats them as members of an undifferentiated mass subject to the blind infliction of capital punishment, and it doesn't give any consideration to the diverse frailties of humankind.

Speaker 4 I love that. Wow.
Diverse frailties of humankind.

Speaker 3 The diverse frailties of humankind.

Speaker 4 And the Supreme Court said, you know, it's totally okay

Speaker 4 to have mandatory non-capital sentences. We have a lot of them, actually, mandatory sentences for all kinds of things.
But the Supreme Court said death

Speaker 4 is different.

Speaker 4 It's different in kind from any other punishment in its severity and its irrevocability. And therefore, we have to attend to the diverse frailties of humankind before we sentence someone to death.

Speaker 3 So it allows it, but with limitations.

Speaker 4 Correct. It allows the death penalty only if jurors are guided

Speaker 4 by some sentencing regime that gives them something to think about. other than whatever they want.

Speaker 4 And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.

Speaker 2 Still, the death penalty itself passed the evolving standards of decency test.

Speaker 2 The court noted that 35 states had enacted new laws providing for the death penalty, undercutting the argument that American society had outgrown it.

Speaker 3 But since 1958, the Supreme Court has narrowed the scope of who can be sentenced to death.

Speaker 3 So people with intellectual disabilities or who were juveniles at the time of the crime or people who have raped but not murdered, the Supreme Court has ruled that they cannot be executed.

Speaker 2 And in recent years, advocates have argued for broadening our understanding of what's cruel and unusual even more, suggesting that things like solitary confinement qualify, forced labor, labor, or banning people from sleeping outside when they have nowhere else to go.

Speaker 2 Meanwhile, others have tried to enact harsher punishments for certain crimes.

Speaker 3 Cesare Beccaria, the Italian philosopher who inspired much of the American founders' thinking around cruel and unusual punishment, himself quoted another famous philosopher, the French Montesquieu.

Speaker 3 He wrote that any punishment that goes beyond necessity is tyrannical.

Speaker 12 So necessity was seen as the dividing line between liberty and tyranny.

Speaker 12 But if you apply that same punishment principle today, that any punishment that goes beyond necessity is tyrannical, there is no need for the death penalty because people are already incarcerated in very secure facilities.

Speaker 12 That core principle that was actually embraced in the founding era

Speaker 12 is that any punishment that goes beyond necessity, and some of the founders actually talked about goes beyond absolute necessity, was considered trannical. That's a principle that the U.S.

Speaker 12 Supreme Court, unfortunately, has never really addressed fully in its jurisprudence in the Eighth Amendment, but it's a core value or belief that existed in the 18th century that has to be, I think, taken into consideration when one is reviewing a punishment like the death penalty.

Speaker 2 Support for the death penalty has been falling, according to Gallup polling, and there's still controversy around how it's applied.

Speaker 2 But a majority of Americans still favor the death penalty for people convicted of murder. And states are still passing laws that push the limits of the Eighth Amendment.

Speaker 4 When we ask whether something is cruel and unusual, do we ask whether it was cruel and unusual back in 1789 when they were writing the Constitution?

Speaker 4 Or do we ask whether it's cruel and unusual to contemporary sensibilities?

Speaker 4 It's kind of a rebuke to the idea that standards of decency evolve in one direction.

Speaker 2 That's it for this week's show. I'm Randabed Fattah.

Speaker 3 I'm Ram Teen Araboui. And you've been listening to Through Line from NPR.

Speaker 2 This episode was produced by me and me and Barn Two.

Speaker 9 Julie Kay, Anya Steinberg, Casey Miner, Christina Kim, Devin Katiyama, Sarah Sarah Wyman, Irene Maguchi.

Speaker 2 Voiceover work in this episode was also done by David Katayama, Sarah Wyman, Anya Steinberg, and Devin Katayama.

Speaker 3 Thank you to Johannes Durkee, Tony Cavan, Nadia Lancy, Kendre Starling, Jeanette Oakes, Edith Chapin, and Colin Campbell.

Speaker 2 Fact-checking for this episode was done by Kevin Vogel. This episode was mixed by Jimmy Keeley.

Speaker 2 Music for this episode was composed by Ramteen and his band Drop Electric, which includes Anya Mizani, Naveed Marvi, Sho Fujiwara.

Speaker 3 And finally, if you have an idea or like something you heard on the show, write us at throughline at npr.org.

Speaker 2 Thanks for listening.

Speaker 9 This message comes from Vital Farms, who works with small American farms to bring you pastor-raised eggs. Farmer Tanner Pace describes what makes a pasture-raised egg unique.

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