Death penalty deemed 'random as lightning strikes,' halted nationwide by Supreme Court, restored within four years
The four words "cruel and unusual" were never clearly defined by the Framers; the Supreme Court repeatedly redefined their boundaries using "evolving standards of decency in a maturing society," abolishing death penalty nationwide, only to have it return within four years.
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Firing squads traced to Mormon doctrine of blood atonement
When Utah Territory sentenced William Wilkinson to death for murder in 1877, it chose firing squad over hanging—not for humanitarian reasons, but because Mormon leader Brigham Young preached that serious crimes required "blood atonement," and only a shooting execution would draw blood. The case reached the federal Supreme Court, which ruled that firing squad was not cruel and unusual punishment, noting that military executions by firing squad were common in wartime. But the Court conceded it was uncertain where the boundaries of the prohibition actually lay.
— Carol SteikerEnglish king's bloody reprisals became constitutional text
In 1685, after his nephew the Duke of Monmouth lost his rebellion against King James II of England, the king unleashed retaliatory trials on hundreds of suspected participants—executions later called the "Bloody Assizes." Some were quartered, some deported to the West Indies as forced labor, some publicly flogged or put in stocks. The atrocities deepened public hatred of the Crown. Four years later, James II was deposed and Parliament passed the Bill of Rights, the first written prohibition of "cruel and unusual punishment." That language was copied word-for-word into the American Constitution's Eighth Amendment.
First anti-death penalty treatise published anonymously out of fear
Italian legal scholar Cesare Beccaria belonged to Milan's Academy of Fists, a circle of intellectuals who calculated optimal punishments using algebra and studied probability through card games. In 1764 he wrote "On Crimes and Punishments," the first systematic work against capital punishment and torture, arguing that penalties must be proportional to crimes. Fear of persecution led him to publish anonymously, yet the book became a bestseller of the era. Washington, Jefferson, and Franklin all read it; Madison urged the Library of Congress to purchase it. It directly shaped the American Revolution and the wording of the Eighth Amendment.
— John BesslerFramer said the prohibition was meaningless at the founding
When Congress debated the Eighth Amendment in 1789, New Hampshire representative Samuel Livermore openly opposed adding the words "cruel and unusual punishment," arguing the phrase had no practical meaning. Were hanging, whipping, and ear-cutting—common punishments of the day—to be considered cruel? If so, how could legislators punish wrongdoers in the future? His conclusion: the clause could only gain concrete meaning through future court interpretation. Despite his opposition, Congress passed it by a large majority, leaving the definition of "cruel and unusual" to be filled in by courts to come.
— Samuel LivermoreFirst 'evolving standards' doctrine emerged from a Philippines case
The 1910 case Weems v. United States did not involve death penalty but involved the Philippines under American control punishing an embezzling official with "cadena"—lifetime in shackles at hard labor, followed by permanent loss of voting rights and eligibility for public office. The Supreme Court ruled this violated the Eighth Amendment, and for the first time explicitly stated that constitutional text is written to address specific historical evils, but its meaning should not be frozen in that historical moment. Rather, it should expand as time and society evolve.
— Carol SteikerDenaturalization ruled crueler than execution itself
During World War II, deserter Albert Trop was court-martialed, sentenced to three years at hard labor, and then stripped of his American citizenship, becoming stateless. The Supreme Court ruled that denaturalization constitutes cruel and unusual punishment, reasoning that citizenship is the foundation upon which all other rights—including protection from cruel punishment—rest and therefore cannot be stripped away. Justice Frankfurter dissented, asking pointedly whether the government could execute a deserter but not revoke his citizenship. This case formally established the standard later widely cited: "the evolving standards of decency that mark the progress of a maturing society."
— Carol SteikerBlack rape defendants faced 88% death sentence rates in Texas
Civil rights lawyers made capital punishment their next battleground after voting rights, sending young people to courthouses the way "Freedom Riders" had gone south, collecting data case by case from courthouse records before computers existed. The numbers they presented to the Supreme Court were stark: in Texas, Black men convicted of rape had an 88% probability of receiving the death sentence, far exceeding the rate for white defendants. This racial disparity, combined with the argument that "jury sentencing has no uniform standards and is guided solely by individual conscience," formed the core of the attack in the 1972 case Furman v. Georgia.
— Carol SteikerDeath penalty returned within four years of nationwide abolition
In 1972, Furman v. Georgia abolished capital punishment 5-4 across all 40 states and the federal government in a single ruling. Nine justices wrote nine separate opinions, with no two joining. The reasoning was not that death penalty itself violated the Constitution, but that swing votes Stewart and White found sentencing "wholly arbitrary and capricious—like being struck by lightning." The Court apparently misjudged the trajectory of public morality. When Manson and Sirhan Sirhan (who assassinated Kennedy) escaped execution due to the ruling, public backlash was swift. Within four years, 35 states and the federal government rewrote their death penalty laws. In 1976, the Supreme Court reversed course, ruling that if juries receive sentencing guidance and must consider "the variety of human frailties" and mitigating factors, capital punishment could resume.
— Carol SteikerIn their own words · checked verbatim
Villains often deserve whipping and perhaps having their ears cut off. But are we, in future, to be prevented from inflicting these punishments because they are cruel?
Samuel Livermore17:30
It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character.
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.
Carol Steiker23:20
the evolving standards of decency that mark the progress of a maturing society.
Carol Steiker27:22
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.
Carol Steiker36:45
these death sentences in these cases are cruel and unusual. The way being struck by lightning is cruel and unusual.
Carol Steiker38:46
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.
any punishment that goes beyond necessity is tyrannical.
John Bessler46:06
Figures
| Time for death by firing squad in Utah | 27 minutes | 4:19 |
| States still legally using firing squad execution | 5 states | 4:19 |
| Death sentence probability for Black defendants convicted of rape in Texas | 88% | 32:38 |
| States and federal government whose death penalty was abolished in Furman case | 40 states plus the federal government | 34:43 |
| States and federal government that rewrote death penalty law after Furman | 35 states plus the federal government | 39:53 |
Glossary
- blood atonement
- Mormon doctrine holding that certain grave sins must be expiated through bloodshed, hence choosing firing squad execution over methods that do not draw blood.
- evolving standards of decency
- The Supreme Court's standard for determining what constitutes cruel and unusual punishment, a standard whose meaning changes as society progresses and moral understanding matures.
- mitigating evidence
- Evidence presented during sentencing, such as a defendant's difficult upbringing or mental condition, that may persuade a jury to impose a lighter sentence.
- majestic generalities
- Constitutional phrases intentionally left broad and vague, requiring courts across generations to fill in their concrete meanings as circumstances and values shift.
How to listen
Legal professionals and policy researchers interested in constitutional interpretation methods, the evolution of death penalty policy, and the history of criminal justice.