Skip to main content

Does the 8th Amendment have a fixed meaning?

The Eighth Amendment to the Constitution protects us from “cruel and unusual punishment” by the government.

This seemingly simple language raises a host of complicated questions. “Cruel” by what standard? “Unusual” in what sense? Does this provision have a fixed meaning? Or does its meaning change over time?

History offers a few clues.

In 1689, England adopted a Declaration of Rights that prohibited “cruel and unusual punishments.” Some of the Founders argued that we needed a similar provision in our own Bill of Rights.

They were concerned about the power the Constitution gave to the federal government. Congress could create new criminal laws and enforce them through abusive punishments.

Patrick Henry argued that Congress might approve the tools of the Spanish Inquisition, allowing torture “to extort a confession of the crime.” Having secured an unreliable confession, the federal government could then punish the accused “with still more relentless severity.”

He concluded, with his typical rhetorical flare: “We are then lost and undone.”

This history makes clear that the Eighth Amendment prohibits the use of punishments viewed as barbaric at the time of ratification, like the rack or thumbscrews. But how much further does it go? Supreme Court justices and legal scholars have disagreed.

One view holds that the Founders intended the protections of the Eighth Amendment to change organically. Chief Justice Earl Warren took this position in the 1958 case of Trop v. Dulles, declaring that the words of the Eighth Amendment are “not precise” and “their scope is not static.” He added: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Another view, held by originalists like Justices Thomas and Scalia, maintains that the Amendment has a historically fixed meaning and generally does not bar punishments that were accepted in 1791. This theory leaves things in a worrisome place. As legal scholar John Stinneford observes, punishments like “flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century.”

Over the years, the Court has struggled with the question of whether the Eighth Amendment completely bars the use of capital punishment. Arguments that it does have focused on the disproportionate numbers of minorities and poor people who receive death sentences, on distressing rates of error, on studies questioning its effectiveness as a deterrent, and on changing social attitudes.

"History makes clear that the Eighth Amendment prohibits the use of punishments viewed as barbaric at the time of ratification, like the rack or thumbscrews. But how much further does it go? Supreme Court justices and legal scholars have disagreed."

In Trop v. Dulles, Chief Justice Warren found these arguments forceful but nevertheless concluded that the Eighth Amendment doesn’t prohibit all uses of capital punishment. “The death penalty has been employed throughout our history,” he wrote, and so is not in itself cruel or unusual.

In its 1972 ruling in Furman v. Georgia, however, the Court took a less sympathetic view of capital punishment. The decision held that imposing the death penalty on the three defendants before the Court would violate the Eighth Amendment.

The Court’s ruling, which consisted of a few sentences followed by a collection of individual opinions, proved difficult to decipher. On the one hand, the decision addressed only the particular defendants before the Court. On the other hand, it reflected a broad sensibility that many (if not all) uses of the death penalty violated the Constitution. The decision resulted in a moratorium on capital punishment until things got sorted out.

Additional clarity came in 1976, when the Court issued a ruling that addressed another set of cases that were reviewed together on appeal. There, the Court upheld the capital punishment regimes of some states while striking down others.

In essence, the Court held that a legislative scheme that allows for capital punishment must have two features. First, it must include objective criteria that direct and limit the sentencer’s discretion in imposing the penalty. Second, it must allow the sentencer to consider the individual defendant’s character and record.

The Court thought these measures helped protect against the discriminatory and arbitrary imposition of the death penalty. Critics disagree.

An otherwise permissible capital punishment regime may still violate the Constitution if applied to certain defendants. For example, the Court has declared that the Eighth Amendment bars the execution of intellectually disabled criminals and of juvenile offenders.

Although individual justices (like William Brennan and Thurgood Marshall) have argued that the Eighth Amendment forbids all uses of the death penalty, that viewpoint has never commanded a majority of the Court.

Nor will it do so anytime soon.

Some justices who had serious concerns about the death penalty —like Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer — are no longer on the Court. They’ve been replaced by justices — like Brett Kavanagh and Amy Coney Barrett — whose lower court rulings suggest strong support for capital punishment.

No one should hold their breath waiting for the most conservative Supreme Court in modern memory to breathe fresh life into the Eighth Amendment.

In a sense, that’s surprising. Although we often associate opposition to the death penalty with the liberal end of the political spectrum, many libertarian conservatives oppose it as well.

Stay tuned for cases in which a majority of the current Supreme Court says, if not quite in so many words: “Sorry. We’re not that kind of conservative.”

Source: detroitnews.com, Len Niehoff; Opinion, September 17, 2023


_____________________________________________________________________




_____________________________________________________________________


FOLLOW US ON:












HELP US KEEP THIS BLOG UP & RUNNING!



"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."


— Oscar Wilde

Most viewed (Last 7 days)

Iran | Convicted killer hanged in Tabriz. Execution carried out by his uncle, who was plaintiff in the case

Iran Human Rights (IHRNGO); May 10, 2025: Hassan Saei, a man on death row for murder, was executed in Tabriz Central Prison. His execution was carried out by his uncle, who was the plaintiff in the case. According to information obtained by Iran Human Rights, a man was hanged in Tabriz Central Prison on 6 May 2025. His identity has been established as Hassan Saei who was sentenced to qisas (retribution-in-kind) for murder by the Criminal Court. An informed source told IHRNGO: “Hassan Saei was arrested for the murder of his cousin and his maternal uncle carried out the execution.”

Wyoming Hasn't Executed Anyone In 33 Years, But It's Tried

It's been 33 years since Wyoming Gov. Mike Sullivan stood in his office next to his priest, warring with himself over the execution of convicted serial killer Mark Hopkinson. The state hasn't executed anyone since that day — but it's tried. In the final few moments of convicted killer Mark Hopkinson’s life, protesters converged on the Wyoming State Capitol while the governor stood in his office, with a priest by his side. The state of Wyoming executed Hopkinson by lethal injection Jan. 22, 1992, at the Wyoming State Penitentiary in Rawlins — 13 years after he was convicted.

Oklahoma | Former death row inmate Richard Glossip’s legal limbo

Former death row inmate Richard Glossip's court hearing gets postponed, leaving the next steps in his high-profile case uncertain. With his conviction overturned by the U.S. Supreme Court, the state must now decide whether to retry him for a 1997 murder of motel owner, Barry Van Treese.  Richard Glossip’s long-running legal battle is once again delayed. His much-anticipated court hearing set for May 9 in Oklahoma County District Court has been postponed at the request of both prosecutors and defense attorneys, according to online court records. A new date has not yet been scheduled.

Oscar Franklin Smith, Tennessee death row inmate, declines to select execution method

Oscar Franklin Smith, a Tennessee death row inmate scheduled for execution on May 22, will die by lethal injection if the process moves forward. Smith, who was asked to choose between lethal injection and the electric chair, declined to pick, his attorney Kelley Henry, a supervisory assistant federal public defender, said. When an inmate does not choose, the method defaults to lethal injection. It's not the first time Smith has been given this grim decision and declined. That decision to not choose ultimately saved his life for three more years.

Florida death row executioner recalls moment he realised job wasn't for him

Ron McAndrew was once the head of Florida's execution programme but one death made him regret everything A man that was once the head of Florida's execution programme recalled the moment where he realised the job wasn't for him, as he admitted he needed therapy to come to terms with what he'd seen. Ron McAndrew, now 88, didn't aspire to be a correctional officer in any form, but after being hired in a Miami prison in 1979, he climbed up the ladder over the next decade and became a warden. In what he now calls a 'wonderful career', he recalled moving to Florida State Prison, famous for holding the US state's death row inmates and for being the site where serial killer Ted Bundy was electrocuted to death.

Saudi Arabia imposes death sentence for Bible smuggling

November 28, 2014: In a recent official statement from the Saudi Arabian government, the death sentence will now be imposed on anyone who attempts to smuggle Bibles into the country. In actuality, the new law extends to the importing of all illegal drugs and "all publications that have a prejudice to any other religious beliefs other than Islam."  In other words, anyone who attempts to bring Bibles or Gospel literature into the country will have all materials confiscated and be imprisoned and sentenced to death.  Source: heartcrymissionary.com, November 28, 2014

Execution methods used in the US today: The promise of a quick and painless death

WARNING: DISTRESSING CONTENT The practice of execution has been around since the days of ancient civilisations, and, as uncomfortable as it may be to think about, this punishment is still handed out in various countries around the world today. Capital punishment for murder was suspended in the UK as recently as 1965, within living memory.  Peter Anthony Allen and Gwynne Owen Evans became the last prisoners to be executed on British soil on August 13, 1964, with the pair hanged at separate prisons in Manchester and Liverpool for the murder of John Alan West. Since then, there have been frequent calls to bring back the death penalty, which some supporters believe to be an effective deterrent against the most despicable crimes. Those on the other side of the debate believe capital punishment to be an inhumane measure, often citing the numerous instances where convicts have faced agonising deaths.

Woman who killed pregnant victim she met on Facebook, cut fetus from womb, ‘claimed’ child as her own to face death penalty trial after double jeopardy appeal rejected

"The stuff that nightmares are made on." Reader discretion advised. A 45-year-old woman in Arkansas who lured a pregnant victim into an ambush and cut out her fetus in a botched scheme to “claim” the child as her own will face the death penalty after the state’s highest court rejected an appeal in which her lawyers argued that her upcoming state murder trial was barred by double jeopardy. The Arkansas Supreme Court last week denied the appeal of Amber Waterman, holding that her federal kidnapping convictions did not prohibit the state from pursuing murder charges against her for the 2022 slayings of 33-year-old Ashley Bush and her unborn daughter, whom she had named Valkyrie Grace Willis.

Dallas DA John Creuzot says office will seek death penalty in retrial of Texas 7 escapee

This will be the first time Creuzot has pursued capital punishment since taking office in 2019. Dallas County District Attorney John Creuzot confirmed to The Dallas Morning News on Wednesday morning that his office will seek the death penalty against Texas Seven escapee Randy Halprin. This will be the first time Creuzot has pursued capital punishment since taking office in 2019. He has opted not to seek death in other high-profile cases, like accused serial killer Billy Chemirmir, Yaser Said, who fatally shot his two teenage daughters and went on the run for more than a decade, or Nestor Hernandez, who murdered two hospital workers at Methodist Dallas Medical Center.

Florida executes Glen Rogers

Florida executes suspected serial killer once eyed for possible link to the OJ Simpson case  A suspected serial killer once scrutinized for a possible link to the O.J. Simpson case that riveted the nation in the 1990s was executed Thursday in Florida for the murder of a woman found dead in a Tampa motel room.  Glen Rogers, 62, received a lethal injection at Florida State Prison near Starke and was pronounced dead at 6:16 p.m., authorities said. He was convicted in Florida of the 1995 murder of Tina Marie Cribbs, a 34-year-old mother of 2 he had met at a bar.