The Mere Extinguishment of [Human] Life.

• Date: 15 December 2020
• Author: Cosentino, Anthony

"We must never forget that it is a Constitution we are expounding"--Chief Justice Marshall, in McCulloch v. Maryland, 1819

Capital punishment has been a standard-practice tool of the American criminal justice since colonizers arrived from Europe. Condemned men and women were shot, electrocuted, hanged, crushed, gassed, lethally-injected, and burned at the stake in the name of good order and retribution. As every other western democracy began to abolish the death penalty over the course of the twentieth century, the United States held fast to the age-old practice, repeatedly reforming legislation and rules of fair punishment set down by the Supreme Court to limit and target the penalty to the worst criminals, even pausing the practice nationally for four years amid concerns that death was too arbitrarily imposed. (2) Yet today, more than forty-three years since the Court allowed executions to resume in 1976, capital punishment in the United States remains as arbitrary and without justificatory effect as ever. Supporters of capital punishment maintain that it has legitimate deterrent and retributive effects, (3) that it is more reliable and targeted than ever before, (4) and that the US Constitution explicitly permits its use. (5) They are wrong on all counts, and furthermore, the argument has been improperly framed.

The position this paper advances is squarely against capital punishment in the United States, yet the primary aim of this work is to reframe the question under a new interpretation of the Eighth Amendment. Through research which qualifies the orthodox historical 'record,' close analysis of Supreme Court decisions on death, and extensive use of statistical analysis, it will propose a comprehensive interpretation of the Eighth Amendment that combines two separate threads of death penalty abolitionism and Court precedent to furnish a more effective argument. The first section will briefly review the history of Anglo-American legal thinking on capital punishment, emphasizing with primary sources the unease with which the punishment was treated during the drafting and ratification period. It will then outline the Supreme Court's role in defining the Eighth Amendment from its earliest cases to the death penalty moratorium in Furman v. Georgia (1972). The second section of this article will evaluate the successes and failures of constitutional regulation of capital punishment using the most recently available statistics collected from hundreds of studies. It is necessary to provide such factual grounds as these to demonstrate the urgency of and application for my interpretation of the Eighth Amendment. Having established this necessary predicate, this article will conclude by identifying and combining an "aspirational" and "restrictive" interpretation of the Eighth Amendment's prohibition on "cruel and unusual punishments" to argue that the death penalty is unconstitutional. (6)

Part I: The Road to Regulation

Execution in the Colonies

The first English colonies in America were little different than their motherland in terms of criminal justice. Treason, murder, manslaughter, rape, robbery, burglary, arson, counterfeiting, and theft were all capital crimes in the American Colonies, just like England. (7) The Northern colonies were more lenient than England in imposing death for property crimes, and even when blasphemy, idolatry, sodomy, and buggery became capital crimes, these statutes were rarely enforced. When England began developing a larger list of capital crimes in the early 1700s, named by critics its "bloody code," the American South was quick to follow suit with statutes only applicable to enslaved Blacks. Slaves were subject to execution for burning or destroying commodities, convincing others to run away, striking and bruising a white, preparing or administering medicine, or conspiring to do any of the above. (8) The administration of the death penalty in America has been a racialized affair ever since the first Blacks were imported as slaves in 1619.

A standard capital procedure in the American Colonies was highly ceremonial. Trials were quick and uneventful. Witnesses usually testified only for the government, and defendants rarely had representation. (9) Once a death warrant was issued, however, a carefully choreographed, three-part show would begin. The day would commence with a procession from the jail house to the gallows. Accompanied by ministers, the local sheriff, deputies and the occasional military escort, prisoners would walk or ride a pre-determined route lined with spectators to the gallows. Once arrived, the prisoner would climb the gallows and deliver a pre-written speech to the audience, often in rhymed verse. (10) These speeches contained passionate, if occasionally inarticulate, appeals for clemency, reaffirmations of the prisoner's innocence, or warnings to the crowd against a life of sin. Copies, often edited to confer the maximum effect, were sold as mementos to onlookers or reprinted in newspapers. (11) Finally, a minster would take the stage; he would pray for the repentance of the condemned and earnestly remind the crowd that a life of sin could only lead to an execution like the one before them. Ministers frequently used the captive audience, and the captive himself, to emphasize boilerplate pulpit warnings against the sin of drunkenness, breaking the sabbath, and even reading "idle and romantic books." (12) They were paid well for their work. With a hood pulled over his or her head, the prisoner would then be hanged.

Stuart Banner identifies two purposes for the ceremonial executions of the American Colonies: deterrence and reparation. The procession of armed guards surrounding a trembling prisoner and his repentant presentation before the community at large "provided a way to amplify the message of terror created by the hanging and to broadcast that message to the public." It also served to reinforce order, as a ceremony by which the injured community could reconstitute itself by eliminating the aberrant among it. Through such ceremony, the pomp-and circumstance, "the sort of violence that establishes order was clearly marked off from the sort of violence that disrupts order." (13) Today, the principal rationale for the death penalty has not changed, with the exception that reparation has been re-termed "retribution" so as not to give the condemned too much power.

The People vs. The Person

It is difficult to say exactly why the American Colonies were less likely to administer the death penalty than their English cousins. Lower economic inequality, fervent religious conviction, or strong traditions of executive clemency are all possible explanations. However, the most defining difference between the English and American criminal justice systems was their locality. In other words, American officials were inefficient in enforcing the severity of their penal codes because they were ordinary citizens. Local sheriffs were not experienced professionals, nor were they eager to execute a member of their community--they often performed the task drunk. (14) "Executions were often conducted by true representatives of the community, men without any specialized training, men who were known to the spectators as friends and neighbors." (15) This made the death penalty in America a truly popular exercise, and often created a tension between wide public support for the punishment and the inherently strong apprehension of actually carrying it out. (16)

"A Revolution in Public Consciousness" (17)

There is a misconception among supporters and abolitionists alike that capital punishment has always enjoyed near-universal support in the United States, and that opposition is purely a modern phenomenon. (18) They often point to the Fifth Amendment's seeming approval of 'deprivation of life' as incontrovertible evidence, the merits of which will be discussed later in this article It is essential to note that this version of history is seriously flawed. In reality, capital punishment for property crimes was widely questioned in the 1760s and 1770s, and by the 1780s and 1790s, capital punishment "for any crime, even murder, was a bitterly contested issue." (19) It was the topic of debating societies, college commencement addresses, newspaper articles, and editorials across the American Colonies. James Madison, the drafter of the Bill of Rights, and DeWitt Clinton, soon-to-be governor of New York, opposed capital punishment in all cases. Benjamin Franklin and Thomas Jefferson opposed its use for any crime but murder. (20)

The seeds of such opposition can be found in a 1764 essay, On Crimes and Punishments, in which Italian criminologist and philosopher Cesare Beccaria argued that a republic with popular sovereignty could not justly execute one of its citizens. He also opposed the death penalty on utilitarian grounds, writing that its imposition was too arbitrary and final to be an effective deterrent when compared to life imprisonment. (21) The essay was translated into English and appeared in London and Dublin by 1767, soon attracting the attention of the foremost American political and legal thinkers. Thomas Jefferson and George Washington bought copies within a few years, and John Adams quoted Beccaria in his 1770 defense of the Boston Massacre soldiers. The first American edition was published in 1777, and newspapers across the colonies serialized the essay in the late 1770s and 1780s. (22) William Blackstone, writer of Commentaries on the Laws of England, the single most influential work of Anglo-American law and a "runaway bestseller" in the colonies, (23) praised Beccaria as "an ingenious writer," summarizing his argument against the death penalty in his fourth volume. (24) "From the late 1760s until nearly a century later, Beccaria was a name familiar to literate Americans," and newspapers, debate societies, activists, and political thinkers frequently followed or expanded...