(Episode 27) Decency, Schmecency: The 8th Amendment, Part 2 of 2

In our second installment of the Eighth Amendment, we focus on the last (and most well-known) part:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

We discussed some of the history of the Eighth Amendment in the first installment, so we won't rehash that. But, the Cruel & Unusual Punishments clause brings similar fears of the Founders: namely, that a too-powerful federal government that isn't specifically prohibited by the Constitution from acting badly will, in fact, act badly. So opponents of the Constitution argued that Congress might opt for a repeat of the inquisition or bring back some medieval-style torture. To combat that fear, the Eighth Amendment was enacted.

In this episode, we focus on case law even more than usual because it provides useful illustration of the ever-swinging penduluum of SCOTUS and of public opinion.  Specifically, we talk about the Supreme Court's standard that the clause should "draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

We couldn't talk about the Cruel & Unusual Punishment clause without discussing the death penalty. Please know, however, that there is so much more to the death penalty discussion than what we were able to cover this time. We intend to devote a future episode to a broader discussion of the death penalty, morality, and society.

In addition to the sources we used in part 1 (which carried over into part 2), we direct you to these gems for even more details:

Case Law (get ready, legal eagles!):

  1. Wilkerson v. Utah (1878), where SCOTUS said you could choose your own death destiny;
  2. Trop v. Dulles (1958), where SCOTUS gave us the "evolving standards of decency" and said that expatriation is way harsh, Tai.
  3. Robinson v. California (1962), where SCOTUS says you can't just punish people for being drug addicts...but then says in Powell v. Texas (1968) that you can be punished for being drunk in public.
  4. Furman v. Georgia (1972) says you can't just arbitrarily (and racistly) hand out the death penalty.
  5. Then (looky here, right at #5) we get the five major "Death Penalty Cases":
    • Gregg v. Georgia (1976) upholds the constitutionality of the death penalty (bifurcated proceedings);
    • Jurek v. Texas (1976) again upholds the constitutionality of the death penalty (considering mitigating circumstances);
    • Roberts v. Louisiana (1976) says you cannot mandate the jury impose death penalty;
    • ...but Proffitt v. Florida (1976) says judges can be given sole sentencing authority re: the death penalty; and finally,
    • In Woodson v. North Carolina (1976), the Court reiterates that you cannot mandate that a defendant be sentenced to the death penalty.
  6. In Coker v. Georgia (1977), SCOTUS holds that the death penalty is "grossly disproportionate" as a punishment for rape.
  7. The Court's opinion changes when it comes to dealing with those with mental infirmities (compare Penry v. Lynaugh (1989) with Atkins v. Virginia (2002)).
  8. There's also a shift when dealing with juveniles sentenced to death (Roper v. Simmons (2005)) or to life in prison without parole (Graham v. Florida (2010) and Miller v. Alabama (2012)), and whether these types of changes apply retroactively (Montgomery v. Louisiana (2016)).

Other Stuff:

  1. How Titus Oates was a damn liar;
  2. How recently, SCOTUS almost did, but ultimately didn't, take up a case challenging the constitutionality of the death penalty as a whole
  3. How the 8th Amendment covers even more, like confinement conditions and excessive force;
  4. How a judge ordering to have a defendant's mouth taped shut put the 8th Amendment back in the news recently.