We The People: Cruel and Unusual Punishment
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A note before we get started. This episode includes descriptions and discussion of violent acts, including murder and execution.
Utah, 1877. A man named Wallace Wilkerson stops by a saloon. He starts by playing a game of cards with another man named William Baxter. An argument starts. Wilkerson takes out a gun, shoots Baxter in the head, killing him, and then he flees. Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed the next month.
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.
Wilkerson was sentenced to be executed by a firing squad, a sentence that was challenged all the way up to the U.S. Supreme Court, which had to decide whether a firing squad violated Wallace Wilkerson's Eighth Amendment rights.
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.
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?
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. 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.
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.
On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30 feet away. He made a short speech and said he hoped God would forgive him. Then three concealed gunmen fired. He continued breathing for 27 minutes before being pronounced dead. almost 150 years later. The firing squad is still a legal way to execute someone in five states.
South Carolina's highest court says death row inmates there may choose to die by firing squad, electric chair, or by lethal injection.
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