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BURGER, C. J., dissenting

408 U.S.

self-defining, but, of all our fundamental guarantees, the ban on “cruel and unusual punishments” is one of the most difficult to translate into judicially manageable terms. The widely divergent views of the Amendment expressed in today's opinions reveal the haze that surrounds this constitutional command. Yet it is essential to our role as a court that we not seize upon the enigmatic character of the guarantee as an invitation to enact our personal predilections into law.

Although the Eighth Amendment literally reads as prohibiting only those punishments that are both “cruel” and "unusual,” history compels the conclusion that the Constitution prohibits all punishments of extreme and barbarous cruelty, regardless of how frequently or infrequently imposed.

The most persuasive analysis of Parliament's adoption of the English Bill of Rights of 1689—the unquestioned source of the Eighth Amendment wordingsuggests that the prohibition against "cruel and unusual punishments” was included therein out of aversion to severe punishments not legally authorized and not within the jurisdiction of the courts to impose. To the extent that the term "unusual” had any importance in the English version, it was apparently intended as a reference to illegal punishments.

2 See Granucci, "Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839, 852–860 (1969). Earlier drafts of the Bill of Rights used the phrase "cruel and illegal.” It is thought that the change to the "cruel and unusual” wording was inadvertent and not intended to work any change in meaning. Ibid. The historical background of the English Bill of Rights is set forth in the opinion of MR. JUSTICE MARSHALL, ante, at 316–318.

It is intimated in the opinion of MR. JUSTICE Douglas, ante, at 242–245, that the term "unusual” was included in the English Bill of Rights as a protest against the discriminatory application of punishments to minorities. However, the history of capital punishment in

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BURGER, C. J., dissenting

From every indication, the Framers of the Eighth Amendment intended to give the phrase a meaning far different from that of its English precursor. The records of the debates in several of the state conventions called to ratify the 1789 draft Constitution submitted prior to the addition of the Bill of Rights show that the Framers' exclusive concern was the absence of any ban on tortures.3 The later inclusion of the "cruel and unusual punishments” clause was in response to these objections. There was no discussion of the interrelationship of the terms "cruel” and “unusual,” and there is nothing in the debates supporting the inference that the Founding Fathers would have been receptive to torturous or excessively cruel punishments even if usual in character or authorized by law.

The cases decided under the Eighth Amendment are consistent with the tone of the ratifying debates. In Wilkerson v. Utah, 99 U. S. 130 (1879), this Court held that execution by shooting was not a prohibited mode of carrying out a sentence of death. Speaking to the mean

England dramatically reveals that no premium was placed on equal justice for all, either before or after the Bill of Rights of 1689. From the time of Richard I until 1826 the death penalty was authorized in England for treason and all felonies except larceny and mayhem with the further exception that persons entitled to benefit of clergy were subject to no penalty or at most a very lenient penalty upon the commission of a felony. Benefit of clergy grew out of the exemption of the clergy from the jurisdiction of the lay courts. The exemption expanded to include assistants to clergymen, and by 1689, any male who could read. Although by 1689 numerous felonies had been deemed “nonclergyable,” the disparity in punishments imposed on the educated and uneducated remained for most felonies until the early 18th century. See 1 J. Stephen, History of the Criminal Law of England 458 et seq. (1883).

3 See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id., at 447-448, 451-452.

BURGER, C. J., dissenting

408 U.S.

ing of the Cruel and Unusual Punishments Clause, the Court stated,

"[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to

the Constitution.Id., at 136. The Court made no reference to the role of the term "unusual” in the constitutional guarantee.

In the case of In re Kemmler, 136 U. S. 436 (1890), the Court held the Eighth Amendment inapplicable to the States and added the following dictum:

"So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the . . . [prohibition of the New York constitution]. And we think this equally true of the Eighth Amendment, in its application to Congress.

"... Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than

the mere extinguishment of life.” Id., at 446–447. This language again reveals an exclusive concern with extreme cruelty. The Court made passing reference to the finding of the New York courts that electrocution was an “unusual” punishment, but it saw no need to discuss the significance of that term as used in the Eighth Amendment.

Opinions in subsequent cases also speak of extreme cruelty as though that were the sum and substance of the constitutional prohibition. See O'Neil v. Vermont, 144 U. S. 323, 339–340 (1892) (Field, J., dissenting); Weems

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BURGER, C. J., dissenting

v. United States, 217 U. S. 349, 372–373 (1910); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947). As summarized by Mr. Chief Justice Warren in the plurality opinion in Trop v. Dulles, 356 U. S. 86, 100 n. 32 (1958):

“Whether the word 'unusual has any qualitative meaning different from 'cruel is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be

latent in the word 'unusual.'” I do not suggest that the presence of the word "unusual” in the Eighth Amendment is merely vestigial, having no relevance to the constitutionality of any punishment that might be devised. But where, as here, we consider a punishment well known to history, and clearly authorized by legislative enactment, it disregards the history of the Eighth Amendment and all the judicial comment that has followed to rely on the term “unúsual” as affecting the outcome of these cases. Instead, I view these cases as turning on the single question whether capital punishment is "cruel” in the constitutional sense. The term "unusual” cannot be read as limiting the ban on “cruel” punishments or as somehow expanding the meaning of the term "cruel.” For this reason I am unpersuaded by the facile argument that since capital punishment has always been cruel in the everyday sense of the word, and has become unusual due to decreased use, it is, therefore, now "cruel and unusual.”

BURGER, C. J., dissenting

408 U.S.

II

Counsel for petitioners properly concede that capital punishment was not impermissibly cruel at the time of the adoption of the Eighth Amendment. Not only do the records of the debates indicate that the Founding Fathers were limited in their concern to the prevention of torture, but it is also clear from the language of the Constitution itself that there was no thought whatever of the elimination of capital punishment. The opening sentence of the Fifth Amendment is a guarantee that the death penalty not be imposed "unless on a presentment or indictment of a Grand Jury.” The Double Jeopardy Clause of the Fifth Amendment is a prohibition against being "twice put in jeopardy of life” for the same offense. Similarly, the Due Process Clause commands “due process of law” before an accused can be "deprived of life, liberty, or property.” Thus, the explicit language of the Constitution affirmatively acknowledges the legal power to impose capital punishment; it does not expressly or by implication acknowledge the legal power to impose any of the various punishments that have been banned as cruel since 1791. Since the Eighth Amendment was adopted on the same day in 1791 as the Fifth Amendment, it hardly needs more to establish that the death penalty was not "cruel” in the constitutional sense at that time.

In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly "cruel” in the constitutional

Wilkerson v. Utah, 99 U. S. 130 (1879); Louisiana ex rel. Francis v. Resweber, 329 U. S., at 464. In

sense.

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