Carol Steiker

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

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

At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?

At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?

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?

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?

Utah was not yet a state. It was a federal territory. And it was settled then, as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. 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.

Utah was not yet a state. It was a federal territory. And it was settled then, as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. 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.

And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles. 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.

And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles. 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.

Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

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

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

And there's some really interesting language written in Weems. And this is the language. I'm going to read it to you. 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. Time works changes, brings into existence new conditions and purposes.

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

Therefore, a principle to be vital must be capable of wider application than the mischief that gave it birth.

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.

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.

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.

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.

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

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

I think Weems gives a very poetic answer. and ringing endorsement to a living constitutionalist view. That the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope versus Dulles doubles down on that.

I think Weems gives a very poetic answer. and ringing endorsement to a living constitutionalist view. That the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope versus Dulles doubles down on that.

Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person. With really no right to live anywhere and be part of any political community.

Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person. With really no right to live anywhere and be part of any political community.

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

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

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? But that's what the court says in Trope v. 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.

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? But that's what the court says in Trope v. 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.

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.

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.

Now, that's not a lot clearer than cruel and unusual, but it is. bakes into the test the idea that these standards change. They evolve over time. And that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.

Now, that's not a lot clearer than cruel and unusual, but it is. bakes into the test the idea that these standards change. They evolve over time. And that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.

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.

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.

So after World War II, 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 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.

So after World War II, 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 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.

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. 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.

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. 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.

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.

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.

They sent like a kind of 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. If you wanted to find evidence about cases, you had to go to the courthouses and pull records.

They sent like a kind of 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. If you wanted to find evidence about cases, you had to go to the courthouses and pull records.

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

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

So what's interesting, the court first says, very hard to know what this means. 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. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.

So what's interesting, the court first says, very hard to know what this means. 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. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.

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 standards of decency have evolved.

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 standards of decency have evolved.

In the 1960s, the death penalty was much more broadly authorized than it is today. 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. So it was very broadly authorized. And juries decide whether the death penalty should be imposed, not judges.

In the 1960s, the death penalty was much more broadly authorized than it is today. 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. So it was very broadly authorized. 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. 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 due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.

And they were given no instructions whatsoever about who should get the death penalty. 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 due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.

And then... Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.

And then... Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.

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. 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.

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. 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.

So, Furman v. Georgia, 1972. 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.

So, Furman v. Georgia, 1972. 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.

The grounds for the decision were really hard to say.

The grounds for the decision were really hard to say.

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 v. Georgia. Wow. That's not, that's not. That does not happen. No, that does not happen.

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 v. Georgia. Wow. That's not, that's not. That does not happen. No, that does not happen.

It's a 5-4 decision, very slim majority. So there are five majority opinions and four dissents. 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 nine of them. And they all have something a little bit different to say.

It's a 5-4 decision, very slim majority. So there are five majority opinions and four dissents. 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 nine of them. And they all have something a little bit different to say.

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. It's pregnant with discrimination. It will give birth to discrimination because it will give people's biases, you know, play in the decision making process.

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. It's pregnant with discrimination. It will give birth to discrimination because it will give people's biases, you know, play in the decision making process.

My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death, the Supreme Court and Capital Punishment. 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, you know, we've used it a lot as a punishment for deserters in wartime.

My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death, the Supreme Court and Capital Punishment. 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, you know, we've used it a lot as a punishment for deserters in wartime.

And they basically said, the problem is not... that Europe is getting rid of the death penalty and that it's per se unconstitutional. Instead, Stuart 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 Stuart's line. He said, these death sentences in these cases...

And they basically said, the problem is not... that Europe is getting rid of the death penalty and that it's per se unconstitutional. Instead, Stuart 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 Stuart's line. 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. And, you know, we would say it's like totally rando is what we would say today. What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.

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. And, you know, we would say it's like totally rando is what we would say today. What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.

Exactly.

Exactly.

Yeah, well, what happened was I think the justices miscalculated where standards of decency had evolved to because there was – a tremendous backlash to Furman. Someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. And between 1972 and 1976, 35 states and the federal government

Yeah, well, what happened was I think the justices miscalculated where standards of decency had evolved to because there was – a tremendous backlash to Furman. Someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. And between 1972 and 1976, 35 states and the federal government

pass 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. And they start sentencing people to death.

pass 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. And they start sentencing people to death.

Charles Manson got off of death row. Sirhan Sirhan, who had just shot Bobby Kennedy, you know, he got off of death row. So people were kind of outraged. Like, Charles Manson and Sirhan Sirhan are not going to get executed? No.

Charles Manson got off of death row. Sirhan Sirhan, who had just shot Bobby Kennedy, you know, he got off of death row. So people were kind of outraged. Like, Charles Manson and Sirhan Sirhan are not going to get executed? No.

in California with like almost instantaneously, you know, California has all of these initiatives and referendums and the people passed by initiative, they amended the California constitution to allow the death penalty. So you might've thought, doesn't California still have the death penalty? Yes, it does. But how do they do that?

in California with like almost instantaneously, you know, California has all of these initiatives and referendums and the people passed by initiative, they amended the California constitution to allow the death penalty. So you might've 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 because the people instantaneously amended the constitution and, after the California Supreme Court abolished it constitutionally.

If the California constitution says you can't have it because the people instantaneously amended the constitution and, after the California Supreme Court abolished it constitutionally.

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

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

They don't wait very long.

They don't wait very long.

Texas, North Carolina, Louisiana, Georgia, and Florida. 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. They guide the jury. They give the jury something to think about other than, you know, according to your conscience.

Texas, North Carolina, Louisiana, Georgia, and Florida. 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. They guide the jury. They give the jury something to think about other than, you know, according to your conscience.

So they say, okay, those statutes are okay.

So they say, okay, those statutes are okay.

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... 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's always open to them.

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... 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's always open to them.

So the court says we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.

So the court says we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.

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

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

This is very poetic. 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. I love that. Wow. Diverse frailties of humankind.

This is very poetic. 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. I love that. Wow. Diverse frailties of humankind.

And the Supreme Court said, you know, it's totally OK 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 is different. It's different in kind from any other punishment in its severity and its irrevocability.

And the Supreme Court said, you know, it's totally OK 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 is different. 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.

And therefore, we have to attend to the diverse frailties of humankind before we sentence someone to death.

Correct. It allows a death penalty only if jurors are guided enough by some sentencing regime that gives them something to think about other than whatever they want. And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.

Correct. It allows a death penalty only if jurors are guided enough by some sentencing regime that gives them something to think about other than whatever they want. And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.

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? Or do we ask whether it's cruel and unusual to contemporary sensibilities? It's kind of a rebuke to the idea that standards of decency evolve in one direction.

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? Or do we ask whether it's cruel and unusual to contemporary sensibilities? It's kind of a rebuke to the idea that standards of decency evolve in one direction.

So there was a really unpopular king there.

So there was a really unpopular king there.

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

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

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.

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.

known now historically as the Bloody Assizes, court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.

known now historically as the Bloody Assizes, court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.

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. Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally or put in pillories.

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. Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally or put in pillories.

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

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

The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president, but what if he turned out to be like a king?

The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president, but what if he turned out to be like a king?

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.

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.

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

At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?

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?

Utah was not yet a state. It was a federal territory. And it was settled then, as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. 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.

And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles. 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.

Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.

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

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

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.

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.

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

I think Weems gives a very poetic answer. and ringing endorsement to a living constitutionalist view. That the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope versus Dulles doubles down on that.

Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person. With really no right to live anywhere and be part of any political community.

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

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? But that's what the court says in Trope v. 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.

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.

Now, that's not a lot clearer than cruel and unusual, but it is. bakes into the test the idea that these standards change. They evolve over time. And that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.

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.

So after World War II, 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 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.

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. 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.

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.

They sent like a kind of 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. If you wanted to find evidence about cases, you had to go to the courthouses and pull records.

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

So what's interesting, the court first says, very hard to know what this means. 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. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.

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 standards of decency have evolved.

In the 1960s, the death penalty was much more broadly authorized than it is today. 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. So it was very broadly authorized. 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. 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 due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.

And then... Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.

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. 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.

So, Furman v. Georgia, 1972. 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.

The grounds for the decision were really hard to say.

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 v. Georgia. Wow. That's not, that's not. That does not happen. No, that does not happen.

It's a 5-4 decision, very slim majority. So there are five majority opinions and four dissents. 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 nine of them. And they all have something a little bit different to say.

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. It's pregnant with discrimination. It will give birth to discrimination because it will give people's biases, you know, play in the decision making process.

My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death, the Supreme Court and Capital Punishment. 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, you know, we've used it a lot as a punishment for deserters in wartime.

And they basically said, the problem is not... that Europe is getting rid of the death penalty and that it's per se unconstitutional. Instead, Stuart 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 Stuart's line. 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. And, you know, we would say it's like totally rando is what we would say today. What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.

Exactly.

Yeah, well, what happened was I think the justices miscalculated where standards of decency had evolved to because there was – a tremendous backlash to Furman. Someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. And between 1972 and 1976, 35 states and the federal government

pass 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. And they start sentencing people to death.

Charles Manson got off of death row. Sirhan Sirhan, who had just shot Bobby Kennedy, you know, he got off of death row. So people were kind of outraged. Like, Charles Manson and Sirhan Sirhan are not going to get executed? No.

in California with like almost instantaneously, you know, California has all of these initiatives and referendums and the people passed by initiative, they amended the California constitution to allow the death penalty. So you might've 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 because the people instantaneously amended the constitution and, after the California Supreme Court abolished it constitutionally.

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

They don't wait very long.

Texas, North Carolina, Louisiana, Georgia, and Florida. 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. They guide the jury. They give the jury something to think about other than, you know, according to your conscience.

So they say, okay, those statutes are okay.

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... 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's always open to them.

So the court says we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.

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

This is very poetic. 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. I love that. Wow. Diverse frailties of humankind.

And the Supreme Court said, you know, it's totally OK 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 is different. 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.

Correct. It allows a death penalty only if jurors are guided enough by some sentencing regime that gives them something to think about other than whatever they want. And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.

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? Or do we ask whether it's cruel and unusual to contemporary sensibilities? It's kind of a rebuke to the idea that standards of decency evolve in one direction.

So there was a really unpopular king there.

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

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.

known now historically as the Bloody Assizes, court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.

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. Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally or put in pillories.

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

The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president, but what if he turned out to be like a king?

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.