Constitutional Killing

Guest Post by Colin Dayan, Robert Penn Warren Professor in the Humanities, Vanderbilt University

There is a real legal history to the death penalty. In some ways it is as barbaric as the fact of execution itself. It also helps to explain why the death penalty in the United States will not go away.

Since the 18th century, “cruel” and “unusual” have been coupled in our legal language and courts. Their rhetorical ambiguity has been alternately used to protect prisoners and to legitimize violence against them. Only at the start of the 20th century in Weems v. United States, and again in 1958 with the opinion of Chief Justice Earl Warren in Trop v. Dulles, did the Supreme Court turn away from the mere ban on “barbarous” punishments and begin to consider whether punishments were disproportionate to the offense. In Trop, Warren emphasized a flexible interpretation of the 8th Amendment that would adapt to enlightened public opinion. The “dignity of man,” he said, was the linchpin of the 8th Amendment.

The 8th Amendment attracted great attention during Furman vs. Georgia in 1972. This landmark case declared capital punishment to be cruel and unusual — and therefore unconstitutional. Not only was it “degrading to human dignity,” wrote Justice William J. Brennan Jr., but it also had proved to be “irrational and arbitrary.” Justice Potter Stewart said: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court voted 5 to 4 to strike down every capital punishment law in the United States.

Yet it was Chief Justice Warren E. Burger’s dissent that set the tone for more recent interpretation of the clause. Burger acknowledged “the haze that surrounds this constitutional command” but went on to note that “there are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment, such as burning at the stake, that everyone would ineffably find to be repugnant to all civilized standards.” What, we might ask, is meant by the word “civilized” in this context?

Within just two years after Furman, 28 state legislatures retooled capital sentencing laws to make them less “capricious.” The Supreme Court reinstated capital punishment in 1976. How are we to determine what threshold of suffering triggers a violation? Where the death penalty is concerned, the courts have routinely allowed a certain level of acceptable pain. The license to go beyond what might be considered humane lies in language that is deliberately general. This spurious generality operates under cover of excessive legalism.

In 1888, New York legislated a new mode of execution, the electric chair. The condemned man would receive a current of electricity “of sufficient intensity to cause death.” During the sensational case two years later, lawyers appealed William Kemmler’s conviction. If he were killed in this way, they argued, he would suffer “a cruel and unusual, and therefore unconstitutional, punishment,” because “a force of electricity sufficient to kill any human subject with celerity and certainty, when scientifically applied, cannot be generated.”

In Louisiana ex rel. Francis v. Resweber (1947), Willie Francis, “a colored citizen,” was sentenced to death by a Louisiana court. The attempted electrocution failed due to mechanical difficulties, and Francis petitioned the Supreme Court, arguing that a second attempt to execute him would be constitutionally cruel. Justice Stanley Reed, writing for the majority, ruled against Francis. Even though Francis had already suffered the effects of an electrical current, that did not “make his subsequent execution any more cruel in the constitutional sense than any other execution.” He continued:

The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.

The dissenting justices took Francis’s experience to be akin to “torture culminating in death.” They asked: “How many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual and unconstitutional punishment?”

Because the state did not intend to “inflict unnecessary pain,” another execution would in no way meet the “cruel and unusual punishments” standard. It is as if, the majority argued, the “victim” merely suffered an “accident,” as though “he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block.”

A fire? An accident? Once only “malicious intent” mattered, an excruciating execution legally became nothing more than what Justice Felix Frankfurter described in his concurrence to Louisiana ex rel. Francis v. Resweber as “an innocent misadventure.”

So, hundreds of years after the words “cruel and unusual punishments” became part of the American Bill of Rights as the Eighth Amendment to the Constitution, we’re still debating how much pain or suffering is severe enough to be called “cruel and unusual.” The definition is borne up by cold logic, verbal parsing and dubious legitimacy. As we see with Chief Justice Roberts’ opinion in Baze v. Rees (2008) on the constitutionality of Kentucky’s method of execution by lethal injection, the meaning of the 8th Amendment continues to be unclear and loose, while the acceptable and therefore allowable level of pain and suffering remains intact. The paralyzing drug pancuronium bromide leaves an improperly sedated prisoner conscious but unable to move, breathe, or cry out. Although nineteen states prohibit the use of this chemical in the euthanasia of animals, the Roberts Court decided that it did not present “a significant risk of unnecessary suffering.” But what would an insignificant risk of unnecessary suffering look like?

In 1895 in “The History of English Law,” after enumerating such obsolete punishments as burning, drowning, stoning and drawing and quartering, legal historians Frederic William Maitland and Frederick Pollock added, “but the worst cruelties belong to a politer time. And now, in our progressive and enlightened twenty-first century, our courts abet the ever more arbitrary and cruel practices of state-sponsored killing.

Colin Dayan is Robert Penn Warren Professor in the Humanities and Professor of Law at Vanderbilt University. In her 2007 book, The Story of Cruel and Unusual, she exposes the paradox of the eighth amendment to the constitution, showing that in the United States, cycles of jurisprudence safeguard rights and then justify their revocation. Her 2011 book, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, examines how the fictions and language of law turn persons—and other legal non-entities, such as slaves, felons, terror suspects and dogs—into “rightless objects.” The Law Is a White Dog was selected by Choice as one of the top 25 “outstanding academic books” for 2011.

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