I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Perhaps the whole business of the retention of the death penalty will seem to the next generation, as it seems to many even now, an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life.

I. Introduction

¶ 1 In 1764, Cesare Beccaria, the 26-year-old eldest son of an Italian nobleman, published a short treatise, Dei delitti e delle pene, that was translated into English three years later as On Crimes and Punishments.¹ In it, Beccaria argued that "there must be proportion between crimes and punishments."² Beccaria—the father of the abolitionist movement³—pointedly asked: "Is death really a useful or necessary punishment for the security or good order of society?"⁴ "By what right," he pondered, "can men presume to slaughter their fellows?"⁵ "It seems absurd to me," Beccaria continued, "that the laws, which are the expression of the public will, and which execrate and punish homicide, should themselves commit one, and that to deter citizens from murder they should order a public murder."⁶

¶ 2 Beccaria railed against the barbarity of state-sanctioned executions, viewing them as violative of natural law. "[S]overeignty and the laws," he wrote, "are nothing but the sum of the smallest portions of the personal liberty of each individual; they represent the general will, which is the aggregate of particular wills."⁷ "Who has ever willingly given other men the authority to kill him?" he asked rhetorically,⁸ adding that "the death penalty is not a right, but the war of a nation against a citizen."⁹ Viewing life itself as "a natural right,"¹⁰ Beccaria vehemently called for the death penalty's abolition. "[I]f I can demonstrate that the death penalty is neither useful nor necessary," the idealistic Beccaria proclaimed, "I will have won the cause of humanity."¹¹

¶ 3 For Beccaria, executions brutalized societies. "If the passions or the necessities of war have taught us how to shed human blood," he believed, "the laws, which moderate the conduct of men, should not augment that cruel example, which is all the more baleful when a legal killing is applied with deliberation and formality."¹² To persuade skeptical readers, Beccaria posed a series of questions: "Can the cries of an unfortunate wretch rescue from time, which never reverses its course, deeds already perpetrated?"¹³ "When reading history, who does not shudder with horror at the barbaric and useless tortures that have been cold-bloodedly invented and practiced by men who considered themselves wise?"¹⁴ "What must men think when they see wise magistrates and solemn ministers of justice, who with tranquil indifference have a criminal dragged with slow precision to his death, and as a poor wretch writhes in his last agonies while awaiting the fatal blow, the judge goes on with cold insensitivity—and perhaps even with secret satisfaction at his own authority—to savour the comforts and pleasures of life?"¹⁵

¶ 4 On Crimes and Punishments also spoke out against torture—a concept associated with the intentional infliction of pain.¹⁶ Beccaria contended that the use of torture is unlikely to produce truthful testimony and runs contrary to the principle that innocent people not be punished.¹⁷ "No man," Beccaria wrote, "can be considered guilty before the judge has reached a verdict, nor can society deprive him of public protection until it has been established that he has violated the pacts that granted him such protection."¹⁸ Beccaria especially decried the use of torture to punish infamy, writing that "a man judged infamous by the law" should not suffer "the dislocation of his bones."¹⁹ "Torture itself," Beccaria emphasized, "causes real infamy to its victims."²⁰

¶ 5 Nevertheless, executions and torture devices like the rack and the thumbscrew were commonplace throughout Europe in the 1700s,²¹ and the novelty of Beccaria's views were not lost on him. Indeed, Beccaria began his treatise with a quote from Renaissance philosopher and English statesman Francis Bacon: "In all negociations of difficulty, a man may not look to sow and reap at once, but must prepare business, and so ripen it by degrees."²² Beccaria thus knew that change would not come easily.

¶ 6 Although Beccaria and one of his early supporters, Pietro Verri, argued for the abolition of torture, a practice now prohibited by international law,²³ only limited reform on that front had taken place before Beccaria's rise to prominence. Sweden had outlawed torture for ordinary crimes in 1734, but would not do so for all purposes until 1772.²⁴ Likewise, in 1740, Frederick II, King of Prussia,²⁵ abolished torture for all but "especially serious cases," and, in 1754 completely banned judicial torture, calling it "gruesome" and "an uncertain means to discover the truth."²⁶ Holy Roman Empress Maria Theresa of Austria (1717-1780) was particularly slow to act, abolishing torture only in 1776, mainly at the urging of Austrian law professor Joseph von Sonnenfels.²⁷

¶ 7 It is clear that when Beccaria wrote On Crimes and Punishments, he recognized that torture and executions—then well-entrenched worldwide—would not disappear overnight. "Human sacrifices," Beccaria conceded, "were common among almost all nations," and he acknowledged that "only a few societies have refrained from use of the death penalty—and for only a brief period of time."²⁸ In fact, the list was extremely short. In the first century A.D., the Buddhist King of Lanka, Amandagamani, abolished the death penalty during his reign, with successive kings following suit.²⁹ In 724 A.D., Japan's Emperor Shomu, a devout Buddhist, also forbade executions—as did some early Buddhist rulers in India.³⁰ In 818 A.D., Japanese Emperor Saga also outlawed the death penalty, effectively abolishing it for the next 300 years,³¹ while Emperor Taizong of Tang barred executions in China, leading to an execution-free period there between 747 and 759 A.D.³² Empress Elizabeth Petrovna (1709-1761) also decreed the suspension of executions in Russia for a short period of time in the 1750s, though the death penalty itself was not formally repealed.³³ In Western Europe, William the Conqueror abolished the death penalty in 1066, though he did so only because he preferred mutilations of the body, such as castration, to executions.³⁴

¶ 8 Though Beccaria knew what he was up against, he remained optimistic, appealing to monarchs everywhere to rid society of capital punishment, promising the sweet vindication of history. "The voice of one philosopher," he admitted, "is too weak against the clamour and the cries of so many people who are guided by blind habit."³⁵ But calling upon "the few sages scattered across the face of the earth" to "echo" back to him, he countered:

[I]f the truth should reach the throne of the monarch—despite the many obstacles that keep it at bay against his wishes—let him know that it arrives with the secret support of all mankind; and let him know that the bloody notoriety of conquerors will fall silent before him and that a just posterity will bestow him a pre-eminent place among the peaceful monuments of the Tituses, the Antonines, and the Trajans.³⁶

That few nations had barred executions, Beccaria lamented, "is consistent with the fate of great truths, which last no longer than a flash of lightning in comparison with the long and dark night that envelopes mankind."³⁷ "The happy epoch," the young Beccaria wrote, "has not yet arrived in which truth shall be—as error has heretofore been—in the hands of the greatest number."³⁸

¶ 9 In his own lifetime, Beccaria witnessed only modest success—dying alone in his house in 1794 in the midst of the bloody French Revolution and just two years after the notorious French physician, Dr. Guillotin, invented his beheading machine.³⁹ In 1786, persuaded by Beccaria's ideas, Grand Duke Leopold of Tuscany did adopt a Tuscan penal code that totally eliminated the death penalty,⁴⁰ and in 1787, Holy Roman Emperor Joseph II, Leopold's brother, followed suit, abolishing Austria's death penalty save for crimes of revolt against the state.⁴¹ It was the translation of Beccaria's ideas, however, that enabled them to breathe life over time. Those writings, once translated, became influential not just with a few monarchs but with scores of European and American intellectuals.⁴²

¶ 10 To date, Beccaria's vision—of a world without torture and the death penalty, and in which life imprisonment would be the ultimate sanction—has not yet been realized, not by a long shot. Acts of torture still occur⁴³ and 60 countries, including the United States of America, still authorize capital punishment for ordinary crimes,⁴⁴ though a growing number of nations—137 at last count—have outlawed executions either by law or in practice.⁴⁵ Of the countries that retain capital punishment for ordinary crimes—among them Afghanistan, China, Cuba, the Democratic Republic of Congo, Iran, Iraq, Libya, Malaysia, North Korea, Pakistan, Saudi Arabia, Somalia, Uganda and Yemen—many are autocratic or totalitarian regimes with abysmal human rights records; in that list, only Japan and the United States stand out as highly industrialized countries.⁴⁶

¶ 11 The progress made by the abolitionist movement—especially when one looks back at the sheer number of executions that were carried out in medieval times and the Enlightenment era—is striking. Europe is now a death-penalty-free zone;⁴⁷ America's closest neighbors, Canada and Mexico, are abolitionist;⁴⁸ and a growing number of poor and developing countries, such as Albania and Angola, Cambodia and Colombia, Haiti and Nicaragua, and Rwanda and Azerbaijan, have totally barred executions.⁴⁹ Even South Africa—once the home of a brutal apartheid regime that made frequent use of executions—no longer authorizes death sentences after the country's Constitutional Court declared them unconstitutional over a decade ago.⁵⁰

¶ 12 As we approach the 250th anniversary of the publication of On Crimes and Punishments, it seems fitting to look back at where the abolition movement has traveled so far, to gauge where we stand now, and to assess what may lie ahead. Beccaria's book shaped influential Enlightenment thinkers such as Bentham and Voltaire as well as countless early American abolitionists,⁵¹ including Dr. Benjamin Rush, an American founding father and one of Pennsylvania's leading lights.⁵² But Beccaria's views—spread haphazardly in the eighteenth century, sometimes through unauthorized editions and translations⁵³—undeniably still have currency today, even if Beccaria could never have imagined all the twenty-first century technologies now capable of transmitting his ideas.⁵⁴

¶ 13 America's Founding Fathers read Beccaria's text by candlelight, sometimes in Italian,⁵⁵ but in the Information Age, television, radio, blogs, and e-mails now spread facts and ideas at supersonic speed, revolutionizing—as never before—the anti-death penalty movement's capabilities. After recalling that movement's long history, from its humble beginnings with one Italian criminologist, to anti-death penalty efforts in the Progressive Era, to litigation in the 1970s before the Supreme Court, this Article explores the more recent grassroots moratoria and abolition initiatives powered by the Internet. In recounting how the abolition of the death penalty is rapidly becoming a norm of international law, this Article further examines how America—with its retentionist position—is becoming increasingly isolated from the world community.

¶ 14 In that milieu, this Article also analyzes existing Eighth Amendment jurisprudence, evolving public attitudes, and the ongoing legal and political struggles in the United States over capital punishment. In particular, this Article seeks to answer some difficult and thorny questions in the wake of recent Supreme Court cases dealing with everything from death sentences for child rape⁵⁶ to the constitutionality of lethal injection⁵⁷ to the habeas corpus rights of Guantánamo detainees.⁵⁸ What role will legislatures, U.S. courts and the American public play in future battles over America's death penalty? After the Supreme Court's 7-2 ruling in Baze v. Rees,⁵⁹ which upheld Kentucky's lethal injection protocol, is the Constitution's ban on "cruel and unusual punishments" a dead letter? Or are Eighth Amendment claims still as viable as ever in the death penalty context? And more than two centuries after Beccaria's death, just what lies ahead for the abolition movement and constitutional litigation in capital cases? Is the death penalty here to stay? Or will America soon see its last state-sanctioned execution?

II. The Breadth of Beccaria's Influence

¶ 15 On Crimes and Punishments, though not translated and distributed everywhere all at once, shaped countless Enlightenment thinkers, including many advocates of prison reform. In Europe, for example, Beccaria's disciples included William Eden, who authored Principles of Penal Law in 1771; Voltaire, who wrote a famous commentary on Beccaria's book that was then frequently reprinted with it; and Maximilien Robespierre, who advocated for the death penalty's abolition in France in 1791.⁶⁰ Beccaria's writings also greatly influenced John Howard, who vocally opposed capital and corporal punishment,⁶¹ as well as his fellow Englishman Jeremy Bentham.⁶²

¶ 16 Voltaire, especially, brought attention to On Crimes and Punishments. After reading Beccaria's book, Voltaire—a popular writer—called Beccaria "a brother" and "a beneficent genius whose excellent book has educated Europe."⁶³ Voltaire successfully campaigned to exonerate a wrongfully condemned man in 1763, wrote on the subject of the death penalty and the need for criminal law reform, and had direct contact with American Founding Fathers, including Benjamin Franklin and Dr. Benjamin Rush.⁶⁴

¶ 17 Across the English Channel, legal scholars were also intrigued by Beccaria's writings. Jeremy Bentham, the noted English philosopher and social reformer, began reading On Crimes and Punishments around the time that he was admitted to the bar in 1769, and was so taken with the book that he wrote of Beccaria: "Oh, my master, first evangelist of Reason . . . you who have made so many useful excursions into the path of utility, what is there left for us to do?"⁶⁵ Bentham—who freely acknowledged Beccaria's influence—was a vocal critic of capital punishment, objecting to its "irremissibility."⁶⁶

¶ 18 William Blackstone's much-revered Commentaries on the Laws of England⁶⁷ also explicitly referred to Beccaria.⁶⁸ Blackstone—the famed Oxford scholar whose writings were frequently consulted by colonial lawyers—called the Italian thinker "an ingenious writer, who seems to have well studied the springs of human action, that crimes are more effectually prevented by the certainty, than by the severity, of punishment."⁶⁹ Blackstone himself criticized the infliction of harsh punishments,⁷⁰ saying that it is "absurd and impolitic to apply the same punishment to crimes of different magnitude."⁷¹ Although he remained supportive of executions and corporal punishments (e.g., the cutting off of the nose and ears),⁷² Blackstone favored the death penalty in only limited circumstances.⁷³ Indeed, he recounted the "melancholy truth" that English law made approximately 160 different crimes punishable by death.⁷⁴

¶ 19 Americans carefully read Beccaria's writings, which profoundly shaped the country's founding era and the Bill of Rights—a fact not lost on scholars⁷⁵ and judges.⁷⁶ One commentator has called On Crimes and Punishments "more influential than any other single book" in America's revolutionary period,⁷⁷ and history shows that early American jurists, as well as the Founders themselves, often turned to Beccaria for guidance.⁷⁸ One study reveals that America's Founders, in their writings and speeches, invoked Beccaria so much that Beccaria ranks seventh overall in frequency of citation—only St. Paul, Montesquieu, Sir William Blackstone, John Locke, David Hume, and Plutarch rank higher.⁷⁹

¶ 20 Beccaria's influence was felt particularly keenly—and quickly—in the American colonies, a landscape already bursting at the seams with revolutionary ideas and impulses. In 1770, the American patriot and lawyer John Adams famously defended the British soldiers accused of murder in the Boston Massacre, and Adams showed close familiarity with the reform-minded Italian criminologist. In taking on this unpopular cause, Adams—though a death penalty supporter⁸⁰—eloquently invoked Beccaria in his opening statement on behalf of his clients:

I am for the prisoners at the bar and shall apologize for it only in the words of the Marquis Beccaria. "If by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessings and years of transport shall be sufficient consolation to me for the contempt of all mankind."⁸¹

Indeed, John Adams was so taken by Beccaria that he had copied Beccaria's words into his diary.⁸² After transcribing them, Adams put down his own thoughts, writing in his diary: "The Sovereign Power is constituted, to defend Individuals against the Tyranny of others. Crimes are acts of Tyranny of one or more on another or more. A Murderer, a Thief, a Robber, a Burglar, is a Tyrant."⁸³ His son, John Quincy Adams, who came to oppose capital punishment,⁸⁴ would later remark on the "electric effect" Beccaria's words—as spoken by his father—had on jurors.⁸⁵ Though John Adams expressed no moral qualms with the death penalty's use, the writings of his wife, Abigail, reveal that the Adams family certainly considered the possibility that America's death penalty might one day be abolished.⁸⁶

¶ 21 Another leading founder, James Wilson, also regularly referred to Beccaria's treatise in his own writings and law lectures.⁸⁷ Wilson—a Pennsylvania native who opposed slavery, served as the College of Philadelphia's first law professor and, in 1789, became a member of the Supreme Court—was thoroughly enamored with Beccaria's ideas.⁸⁸ Wilson expressed reservations about capital punishment, calling the prior English practice of not affording counsel to those accused of capital crimes "unreasonable and severe." He also argued that false confessions were sometimes given, pointing out that one man had shown up alive after three people were hanged for his supposed murder.⁸⁹ In another reflection of the changing times, Wilson's son, a Pennsylvania judge, would later resign his judgeship because of his opposition to capital punishment.⁹⁰

¶ 22 Dr. Benjamin Rush—a friend of John Adams and an ardent death penalty foe—was also an admirer of Beccaria's work.⁹¹ Dr. Rush invoked Beccaria's name at a reading he gave at the house of Benjamin Franklin—another Beccaria admirer—in March 1787.⁹² "I have said nothing upon the manner of inflicting death as a punishment for crimes, because I consider it as an improper punishment for any crime," Rush explained, going on to cite the death penalty's abolition in Tuscany.⁹³ A devout Christian, Rush often expressed his faith and his anti-death penalty views in his correspondence⁹⁴ and invoked Beccaria in his writings more than once.⁹⁵

¶ 23 John Hancock—a signatory to the Declaration of Independence—and leaders such as William Bradford⁹⁶ and Thomas Paine carefully read Beccaria's writings, too.⁹⁷ A former Pennsylvania Attorney General, Bradford penned An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania in 1793 that echoed many of Beccaria's arguments.⁹⁸ He questioned the necessity of capital punishment and argued for the elimination of it for all offenses except high treason and murder until more information could be obtained. Paine, like Dr. Rush, was an ardent abolitionist. He opposed Louis XVI's execution,⁹⁹ regretted the French Assembly's vote to impose a death sentence,¹⁰⁰ as Thomas Jefferson did,¹⁰¹ and ended up risking his own life in the process.¹⁰² In 1793, in a speech before a joint session of the legislature, Massachusetts governor John Hancock also asked legislators to follow Beccaria's call for less discretion in sentencing.¹⁰³

¶ 24 Thomas Jefferson was especially fascinated by Beccaria's ideas.¹⁰⁴ Between 1774 and 1776, Thomas Jefferson—the drafter of the Declaration of Independence¹⁰⁵ and the future U.S. president—actually copied twenty-six different passages from Beccaria's text into his Commonplace Book by hand.¹⁰⁶ Jefferson drafted three proposals for Virginia's constitution that would have curtailed the death penalty's use,¹⁰⁷ and the Declaration of Independence famously recites the "inalienable" right to life.¹⁰⁸ While Jefferson was part of a committee that expanded the death penalty's availability in wartime,¹⁰⁹ he also became a member of the Virginia Committee of Revisors for legal reform, drafting a bill for Virginia's legislature specifically calling for proportionate punishments.¹¹⁰

¶ 25 Jefferson's bill, plainly inspired by Beccaria's treatise, called for "a corresponding gradation of punishments" in relation to the seriousness of the offense.¹¹¹ Though the legislation called for the death penalty for treason and murder¹¹² and contained draconian¹¹³ and controversial provisions,¹¹⁴ it was still quite progressive for the age.¹¹⁵ The bill ultimately failed to pass by a single vote,¹¹⁶ but it undeniably marked an attempt by Jefferson to drastically scale back the availability of death sentences. In a draft autobiography, written in the twilight of his life, Jefferson would reflect on the bill's narrow defeat even as he rejected the doctrine of lex talionis¹¹⁷ and credited Beccaria's book for being the catalyst for his anti-death penalty stance.¹¹⁸ As Jefferson wrote: "Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death."¹¹⁹ Noting that "hard labor on roads, canals and other public works, had been suggested as a proper substitute," Jefferson pointed out that "[t]he Revisors had adopted these opinions; but the general idea of our country had not yet advanced to that point."¹²⁰

¶ 26 Only many years after it was first introduced did Jefferson's bill for proportionate punishments gain passage in Virginia. In 1821 Jefferson explained, again in his draft autobiography, that after his bill failed, "the public opinion was ripening, by time, by reflection, and by the example of Pennsylvania." Jefferson specifically noted that "[i]n 1796 our legislature resumed the subject, and passed the law for amending the penal laws of the Commonwealth."¹²¹ By then, Jefferson had already shown his distaste for the death penalty, including in his private correspondence. In 1816, Jefferson penned a letter to William Wirt, the author of a biography of Patrick Henry. In that letter, Jefferson said, with obvious satisfaction, that Virginia "justly prides itself on having gone thro' the revolution without a single example of capital punishment connected with that."¹²²

¶ 27 Thomas Jefferson also revealed his genuine affection for Beccaria's book in another piece of correspondence. As president, Jefferson, an avid book collector and one of the most well-read men of his time, would write a telling letter in 1807 recommending that its recipient, one John Norvell, read "Beccaria on crimes & punishments"—one of only a handful of books Jefferson recommended on the principles of government. Jefferson did so, he said, "because of the demonstrative manner" in which Beccaria "has treated that branch of the subject."¹²³ By singling out On Crimes and Punishments, Jefferson made especially clear that he treasured Beccaria's treatise, which had condemned the use of both torture and state-sanctioned executions.

III. The History of the Abolition Movement

¶ 28 Every culture has seen executions in one form or another. Early Native American communities allowed families of murder victims to kill the perpetrators,¹²⁸ and the Babylonian Code of Hammurabi, circa 1750 B.C., punished over twenty offenses with death, including perjury, adultery, theft, harboring runaway slaves, and even faulty home construction.¹²⁹ Over the centuries, in fact, death sentences have been handed out for all sorts of transgressions—from serious offenses, to vices, to nearly everything else. Tobacco users and those who cursed or sold bad beer, for example, faced execution.¹³⁰ In India, the death penalty was inflicted for killing a cow or spreading false rumors.¹³¹ Executions could be terrifically brutal as well. Asian offenders were skinned alive or tied to stakes, smeared with honey, and left for wild animals to eat, while Persian offenders were crucified, trampled by elephants, smothered with hot ashes or heavy stones, or buried alive.¹³² The Pharaohs embalmed criminals alive for giving false testimony,¹³³ and mass drownings took place during the French Revolution.¹³⁴

¶ 29 In England, America's mother country, an eighteenth-century "Bloody Code" made nearly every felony a capital crime.¹³⁵ Death sentences could be imposed in England for everything from treason and murder to disturbing a fish-pond, killing or maiming cattle, shooting a rabbit, setting a cornfield on fire or cutting down trees.¹³⁶ English subjects were hanged, burned, boiled, disemboweled, or drawn and quartered—with human bodies violently torn apart, limb-by-limb, by horses.¹³⁷ The dead bodies of the condemned were sometimes publicly dissected, desecrated, or gibbeted.¹³⁸

¶ 30 Early and medieval civilizations used torture, and acts of torture were once common in Europe.¹³⁹ The Greeks and the Romans, for example, systematically tortured people, with the Romans applying red hot metals and hooks to tear skin and routinely using the rack—a wooden frame mounted on rails that caused the victim's joints and muscles to become painfully distended.¹⁴⁰ Other medieval European forms of torture included leg-screws, thumbscrews, water torture, the binding of wrists with cords, the lighting of a flammable substance on the soles of the accused's feet, beatings with fists, hangings of individuals by their feet, and sleep deprivation for as long as forty hours.¹⁴¹ As one commentator has written: "Until the mid-eighteenth century, torture was widely used and accepted throughout Europe, in a variety of contexts, including the procurement of testimony and confessions from criminal defendants."¹⁴²

¶ 31 This was as true for England and its colonial empire as it was in continental Europe. In England, those escaping death—either through royal pardon or "benefit of clergy"¹⁴³—could have their genitals or tongues cut off or be whipped or branded on the forehead or thumb.¹⁴⁴ The American colonies, which borrowed England's harsh criminal codes, were no exception; corporal punishments such as branding, flogging, forced labor, maiming and whipping, particularly of slaves, were inflicted frequently.¹⁴⁵ These types of punishments—in addition to gags, stocks, the scarlet letter, and the ducking stool—were designed to cause pain and to publicly humiliate offenders.¹⁴⁶ Many methods of torture, such as waterboarding or placing heavy stones on someone's chest, would lead to death—something that can, and does, still occur when these forms of torture are employed.¹⁴⁷

¶ 32 Executions in colonial days and early America were public affairs, and the occasion for sermons and considerable pomp and circumstance as the condemned prisoners were taken to the gallows.¹⁴⁸ Mandatory death sentences were meted out for violent offenses, such as murder and rape, but also for less serious crimes.¹⁴⁹ The Massachusetts Bay Colony's "Capitall Lawes of New-England," from 1636, listed these capital crimes: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, manstealing, perjury in a capital case, and rebellion.¹⁵⁰ The codification of each crime was accompanied in the statute by an Old Testament verse as authority,¹⁵¹ and judges used such draconian laws, most memorably in Salem, Massachusetts, in sentencing those convicted of heresy and witchcraft.¹⁵²

¶ 33 As in Europe, offenders in the American colonies were hanged, disemboweled, or drawn and quartered,¹⁵³ and many offenses were punishable by death. In an era rife with superstition—American executions have frequently taken place on Fridays¹⁵⁴—executions of many different types of offenders took place. Thomas Graunger, a teenager, was convicted in the Plymouth Colony in 1642 of committing "buggery" with "a mare, a cowe, two goates" and "a turkey." George Spencer was executed in New Haven in the seventeenth century for bestiality based on a recanted confession and because both he and a piglet were found to have a deformed eye.¹⁵⁵ And in Massachusetts, four Quakers were executed in the seventeenth century for returning to the colony after being banished, while in 1643 James Britton and Mary Latham were hanged there for adultery.¹⁵⁶

¶ 34 As history shows, state-sanctioned executions have been used for centuries to punish criminals, political dissidents, and social outcasts, mostly men.¹⁵⁷ In England, public executions were carried out at Tyburn, on Tower Hill, or in front of Newgate prison. Some fifty thousand people were publicly hanged at Tyburn, though on rare occasions, royal figures were hanged privately within the Tower of London.¹⁵⁸ Offenders were frequently put to death—sometimes even burned at the stake¹⁵⁹—not necessarily because of the seriousness of the offense, but because prisons were not then thought of as places to house unsavory criminals for long periods of time.¹⁶⁰

¶ 35 These ritualistic killings, however, were destined to be removed from the public eye. As morals and sensibilities changed in the Victorian Era and people grew more and more uncomfortable with executions, these macabre spectacles were moved into prisons or behind walled enclosures adjoining courthouses, jails, or prisons.¹⁶¹ Public executions in England came to an abrupt end in 1868 with the passage of national legislation, though public executions in America took much longer to disappear from the scene. Private execution laws were first enacted in the northeastern part of the United States in the 1830s, with the last American public execution—of a black man, Rainey Bethea, before a jeering crowd of 10,000 to 20,000 spectators—taking place in Kentucky in 1936.¹⁶²

¶ 36 A few early Christians opposed executions,¹⁶³ but Cesare Beccaria is widely credited as the first Enlightenment thinker to call for the death penalty's abolition.¹⁶⁴ Born in Milan in 1738, Beccaria—a Roman Catholic and a voracious reader of philosophy¹⁶⁵—attended a Jesuit school in Parma before attending the University of Pavia from 1754 to 1758.¹⁶⁶ After graduating with a degree in law, he first joined one social academy, the Accademia dei Trasformati (Academy of the Transformed), run by a wealthy count, then another, the Accademia dei Pugni (Academy of Fists), one of the many European salons and literary and reading societies of the 1700s.¹⁶⁷

¶ 37 Formed by Beccaria's friend, Pietro Verri, the Academy of Fists held reformist views that did not find favor elsewhere.¹⁶⁸ The small group, which included Pietro's brother Alessandro and other men, mostly in their twenties, dedicated itself to contributing to the public good.¹⁶⁹ In particular, they sought to win over the Austrian rulers of Lombardy to a program of reform.¹⁷⁰ Though the group was short-lived, the ideas Beccaria produced as a result of his association with the Academy of Fists still endure, continuing to shape the world's death penalty debate.

¶ 38 The members of the Academy of Fists wrote on an array of topics, ranging from political and economic theories to literary and scientific matters.¹⁷¹ Every ten days the group published a periodical, Il Caffe, the inaugural edition¹⁷² of which was aimed at accomplishing "what good we can for our country" through the distribution of "useful knowledge."¹⁷³ Beccaria's own writings were diverse. After falling in love with the daughter of an army colonel, Beccaria published his first pamphlet, a study of currency problems in Milan, in 1762.¹⁷⁴ In all, Beccaria wrote seven articles for Il Caffe on topics ranging from the trivial and whimsical—the statistical probabilities of winning a card game and an "Essay on Odors"—to the literary—a "Fragment on Style"—to the serious—an essay on smuggling.¹⁷⁵

¶ 39 One product of the Academy of Fists was the publication of Beccaria's landmark treatise, Dei delitti e delle pene, at first published anonymously due to fear of persecution and ecclesiastical censorship.¹⁷⁶ "While writing my book," Beccaria later told his French translator, "I had before my eyes the examples of Galileo, Machiavelli, and Giannone," all of whom faced dire consequences for their views.¹⁷⁷ In his book, Beccaria dealt with his subject in a comprehensive and philosophical manner, advocating trials by jury¹⁷⁸ and condemning torture and execution as antiquated practices.¹⁷⁹

¶ 40 In the section "On Torture," Beccaria wrote about a "strange consequence" of torture: "[T]he innocent individual is placed in a worse condition than the guilty; for if both are tortured, every outcome is stacked against him, because either he confesses to a crime and is convicted or he is declared innocent and has suffered an undeserved punishment."¹⁸⁰ Beccaria saw torture as "a cruelty," believing only the guilty should be punished, and he worried considerably about false confessions.¹⁸¹ Beccaria wrote: "[T]he impression of pain may increase to such a degree that, filling the entire sensory capacity, it leaves the torture victim no liberty but to choose the shortest route to relieve his pain momentarily."¹⁸² "Under these circumstances," Beccaria concluded, "the statements made by the accused are as inevitable as the impressions made by fire and water."¹⁸³

¶ 41 In the section "On the Death Penalty," Beccaria wrote, "[t]his futile excess of punishments, which have never made men better, has impelled me to consider whether the death penalty is really useful and just in a well-organized state."¹⁸⁴ "The death penalty," Beccaria argued, "is not useful because of the example of cruelty that it gives to men."¹⁸⁵ "If one were to raise the objection that in almost all ages and almost all nations the death penalty has been prescribed for some crimes," Beccaria continued, "I would reply that this objection amounts to nothing in the face of the truth—against which there is no legal remedy—and that the history of mankind gives us the impression of a vast sea of errors, in which a few confused truths float about with large and distant gaps between them."¹⁸⁶

¶ 42 Beccaria believed violent crimes should be punished severely.¹⁸⁷ But he also believed that "the purpose of punishment is neither to torment and afflict a sentient being, nor to undo a crime already committed."¹⁸⁸ For Beccaria, "perpetual penal servitude"—or life imprisonment, in today's parlance—was the best, and most just, way to deter others.¹⁸⁹ Echoing Montesquieu, Beccaria emphasized that "every act of authority of one man over another that does not derive from absolute necessity is tyrannical."¹⁹⁰ "For a punishment to be just," Beccaria wrote, "it must have only that degree of intensity that suffices to deter men from crime."¹⁹¹

¶ 43 Beccaria emphasized perpetual imprisonment as a viable alternative to executions. "It is not the terrible but fleeting spectacle of a criminal's death that is the most powerful brake on crimes," he reasoned, "but the long and arduous example of a man deprived of his liberty, who, having become a beast of burden, repays the society he has offended through his toils."¹⁹² "It is not the intensity of the punishment that has the greatest effect on the human mind," Beccaria wrote, "but its extension, for our sensibility is more easily and firmly affected by small but repeated impressions than by a strong but fleeting action."¹⁹³ Seeing executions as both ineffective and counterproductive, Beccaria observed: "With the death penalty, every example given to the nation requires a crime; with permanent penal servitude, a single crime provides many and lasting examples."¹⁹⁴

¶ 44 Beccaria thought a criminal's death justifiable only in times of anarchy to protect national security, or if the death penalty could be shown to deter others from committing crimes.¹⁹⁵ "The death of a citizen," Beccaria wrote, "cannot be deemed necessary, except on two grounds."¹⁹⁶ "The first," he opined, "is when he retains such connections and such power that he endangers the security of the nation even when deprived of his liberty, that is, when his very existence can provoke a dangerous revolution in the established form of government."¹⁹⁷ In that extremely limited circumstance, Beccaria felt, the citizen's death "becomes necessary when a nation is recovering or losing its liberty, or in time of anarchy, when disorder itself takes the place of laws."¹⁹⁸ The "second reason for believing that the death penalty could be just and necessary," Beccaria wrote, was deterrence, though Beccaria emphasized that "centuries of experience" had taught that "the ultimate punishment has never deterred men determined to harm society."¹⁹⁹

¶ 45 Beccaria would repeat these views—and add one more, the irrevocability of capital punishment—in a government report he co-authored in 1792.²⁰⁰ The report, written by Beccaria, Francesco Gallarati Scotti, and Paolo Risi, articulated the minority position of a committee charged with drafting a new penal code for Austrian Lombardy.²⁰¹ The minority report favored "perpetual enslavement" and "forced labour" for the most serious crimes, finding that "the death penalty should not be prescribed except in the case of absolute necessity."²⁰² But Beccaria and his co-authors were quick to note:

[I]n the peaceful circumstances of our society, and with the regular administration of justice, we could not think of any case of absolute necessity other than the situation in which the accused, in plotting the subversion of the state, was capable, either through his external or internal relationships, of disturbing and endangering society even while imprisoned and closely watched.²⁰³

Citing "the Austrian and Tuscan codes that we have received as models," Beccaria and his two colleagues felt compelled "to expose candidly and succinctly" their anti-death penalty views.²⁰⁴ "[W]e believe that the death penalty is not suitable," they wrote, "because it is not just, since it is not necessary"; "because it is less efficacious than perpetual punishment equipped with a good deal of continuous publicity"; and "because it cannot be undone."²⁰⁵

¶ 46 Right from its publication, On Crimes and Punishments—as Beccaria no doubt expected—generated enormous controversy and decidedly mixed reviews.²⁰⁶ The Venetian Inquisition blocked importation of the book into Venetian territory in August 1764; an Italian monk, Ferdinando Facchinei, anonymously published a harsh rebuke of it in 1765; the Roman Inquisition banned the book in February 1766; and in 1777, a Spanish translation of the book was banned in Spain.²⁰⁷ Voltaire, however, adored Beccaria's book, and drew on his own considerable fame to promote it.²⁰⁸ In Milan, the reformer Count Carlo Firmian, the plenipotentiary of Empress Maria Theresa, defended Beccaria against charges of subversion and sacrilege.²⁰⁹

¶ 47 Beccaria's book quickly garnered the attention of monarchs²¹⁰ and led to calls for criminal law reform and the death penalty's abolition in Europe.²¹¹ The book even led Empress Catherine II to invite Beccaria to assist in the reform of Russia's penal code—an offer he considered for some time before turning it down.²¹² In pre- and post-revolutionary America, Beccaria's novel ideas also shaped the views of the Founding Fathers—determined men who risked everything, including being hanged, to form a new republic.²¹³ Beccaria's book would be read and admired by this illustrious group of well-educated men—men who felt intense anger at the way the English crown had treated them and who were highly receptive to an Enlightenment agenda.²¹⁴

¶ 48 George Washington and Thomas Jefferson both bought copies of Beccaria's book, most likely in 1769,²¹⁵ and by the 1770s it was clear that Beccaria's calls for criminal justice reform were having a major impact across the Atlantic.²¹⁶ Between 1776 and 1779, Thomas Jefferson absorbed On Crimes and Punishments, intensely studying Beccaria's book as he drafted a bill calling for more proportionate punishments in Virginia.²¹⁷ Other American leaders—both before and after the 1770s—called for reform of death penalty laws or engaged in individual acts of mercy.²¹⁸ For example, early American presidents—who often used or threatened military force or called out the militia to put down rebellious activities²¹⁹—frequently made use of the clemency powers granted by Article II of the Constitution.²²⁰ They showed this lenience in spite of a long-standing tradition of using the death penalty to punish rebels.²²¹

¶ 49 President George Washington—a death penalty supporter²²² who had to oversee the articles of war and cases of desertion²²³—felt executions were too frequently employed. He sometimes favored setting aside soldiers' death sentences,²²⁴ and in 1778 he called for more proportionate punishments²²⁵ and the curtailment of death sentences.²²⁶ In his seventh annual message to Congress, delivered in Philadelphia on December 8, 1795, President Washington also said this in regard to the pardoning of capital offenders:

It is a valuable ingredient in the general estimate of our welfare that the part of our country which was lately the scene of disorder and insurrection now enjoys the blessings of quiet and order. The misled have abandoned their errors, and pay the respect to our Constitution and laws which is due from good citizens to the public authorities of the society. These circumstances have induced me to pardon generally the offenders here referred to, and to extend forgiveness to those who had been adjudged to capital punishment. For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.²²⁷

Washington thus viewed executions as a last resort—and then only if he felt them absolutely necessary.²²⁸

¶ 50 Alexander Hamilton—another death penalty supporter²²⁹—also made clear before the century's end that he, too, felt death sentences could be too harsh in some instances. A defender of the presidential pardoning power,²³⁰ Hamilton did not hesitate to support the use of capital punishment if he felt it would be effective. For example, Hamilton—who served as a general of the army under President Adams—wrote in support of using executions to prevent desertion:

I have heretofore spoken to you of the frequency of desertion, and of the necessity of repressing it by severe punishment. It is not my wish to influence opinion in any particular case, but I believe that a few examples of capital punishment, perhaps one in each regiment, will be found indispensable.²³¹

¶ 51 Yet Hamilton, like others in early America, also recognized that "[t]he temper of our country is not a little opposed to the frequency of capital punishment,"²³² and recommended in 1799 that a deserter's life be spared.²³³ In that case, after John Adams reluctantly approved the death sentence for a deserter, Sergeant Richard Hunt, Adams wrote a letter to Secretary of War James McHenry: "Yet if you and General Hamilton, think that one example, may suffice, for the purposes of public justice, the execution of Hunt . . . may yet be respited."²³⁴ Upon receiving the death warrant, Hamilton, in turn, wrote to McHenry—a signer of the U.S. Constitution and an army surgeon who studied medicine under Dr. Benjamin Rush in Philadelphia.²³⁵ In that letter, Hamilton laid out his view that the death penalty should be used sparingly, arguing that public opinion "is not wholly to be disregarded" and that there must be "some caution not to render our military system odious by giving it the appearance of being sanguinary." "The idea of cruelty," Hamilton wrote, "inspires disgust, and ultimately is not much more favourable to authority than the excess of lenity."²³⁶ "To disseminate the examples of executions so far as they shall be indispensable," Hamilton emphasized, "will serve to render them more efficacious."²³⁷ Hamilton ended his letter by urging mercy for the soldier:

Under these impressions, if I hear nothing to the contrary from you by the return of the post, I shall issue an order to the following effect: "That, though the President has fully approved the sentence of Sergeant Hunt, and, from the heinous nature of his conduct, considers him a very fit subject for punishment; yet, being unwilling to multiply examples of severity, however just, beyond what experience may show to be indispensable, and hoping that the good faith and patriotism of the soldiery will spare him the painful necessity of frequently resorting to them, he has thought fit to authorize a remission of the punishment; directing, nevertheless, that Sergeant Hunt be degraded from his station."²³⁸

¶ 52 Even Southern Founding Fathers, such as Charles Pinckney and Pierce Butler of South Carolina, opposed capital punishment for certain categories of offenders—at least when it came to punishing whites.²⁴⁰ Pierce Butler, one of South Carolina's four delegates at the 1787 Constitutional Convention, actually wrote a letter in 1791 to his quick-tempered friend, Col. James Gunn, in which he advised against capital punishment for a man alleged to have had an affair with the colonel's wife. As Butler wrote: "The chastising of a bad Man, or still worse, putting him to death will not restore to You the domestic happiness You have lost."²⁴¹ Another Southerner, William Few of Georgia, no doubt also felt ambivalent about capital punishment. Although Few, a signer of the U.S. Constitution and later a superior court judge in Georgia, sentenced a murderer and a horse thief to death (sentences that were later set aside), his elder brother, James, had been executed on the orders of a Tory governor. In fact, Few's biographer notes that Few himself often called for sentences he handed down to be remitted.²⁴²

¶ 53 Dr. Benjamin Rush, a signer of the Declaration of Independence, was one of the first Americans to call for the death penalty's total abolition.²⁴³ He spoke out against the death penalty for murderers at the end of a paper advocating private punishments that was read at Benjamin Franklin's house on March 9, 1787.²⁴⁴ And he elaborated on his ideas in an essay titled "Considerations of the Injustice and Impolicy of Punishing Murder by Death," published in the July 1788 edition of American Museum magazine.²⁴⁵ Dr. Rush distributed these essays and America's abolitionist campaign, focused initially in New York and Pennsylvania, took off, soon to be joined and invigorated by other leaders.²⁴⁶ Due to Dr. Rush's advocacy, in 1794, the year of Beccaria's death, Pennsylvania took the novel step of dividing murder into degrees and restricted capital punishment to first-degree murder.²⁴⁷

¶ 54 In the 1790s and early 1800s, significant efforts were made in many locales, including Pennsylvania, New York and Louisiana, to curtail or end capital punishment altogether.²⁴⁸ In fact, America's abolition movement greatly intensified in the 1830s, with considerable anti-death penalty agitation taking place in many parts of the country.²⁴⁹ By the 1840s, anti-gallows societies had been formed in Massachusetts and New York,²⁵⁰ though success would first be obtained far away, in the Upper Midwest. In 1846, Michigan became the first American state—indeed, the first English-speaking jurisdiction—to abolish capital punishment for murder.²⁵¹ In the 1850s two other states, Rhode Island and Wisconsin, followed suit, with societies for the abolition of capital punishment steadily growing in number nationwide.²⁵²

¶ 55 The anti-death penalty crusade, however, soon came to an abrupt halt. The onset of the Civil War delayed the progress of America's abolition movement,²⁵³ with abolition efforts, led by Wisconsin state legislator Marvin Bovee, not resuming until after the war.²⁵⁴ Bovee even delayed the publication of his anti-death penalty manifesto until 1869,²⁵⁵ saying that to have presented such a work during the Civil War "would have been 'ill-timed,' to say the least."²⁵⁶

¶ 56 It took some time for the abolitionist movement to regain its footing, but once it did, things moved rapidly. In the Progressive Era, ten states abolished the death penalty, though widespread societal fears quickly overcame that momentum, with all but two of those states soon reinstating capital punishment.²⁵⁷ America's entry into World War I and the country's hard economic times, culminating in the Great Depression, dealt another blow to the movement, making criminal law reform excruciatingly difficult. The country's focus on the war and people's struggle to find work and support their families ultimately deflated the abolitionist cause, at least for a time.²⁵⁸

¶ 57 Although the privatization of executions reduced public consciousness of them, the end of World War II saw a rebirth of the anti-death penalty movement.²⁵⁹ From 1958 to 1965, four states—Delaware, Oregon, Iowa and West Virginia—abandoned capital punishment, executions became less frequent, and it looked to many in the media and in the courts like the beginning of the end for America's death penalty.²⁶⁰ Oregon's abolition had come through a public referendum and public opinion was turning against capital punishment.²⁶¹

¶ 58 Other developments in the turbulent 1960s also pointed to the death penalty's demise. The first edition of Hugo Adam Bedau's influential book, The Death Penalty in America, hit shelves in 1964,²⁶² and in 1966, more people opposed the death penalty than favored it.²⁶³ In 1968—the same year that United States Attorney General Ramsey Clark asked Congress to abolish the federal death penalty²⁶⁴—the Supreme Court itself observed that death penalty advocates were a "distinct and dwindling minority."²⁶⁵ The number of executions fell off still more, then came to a complete standstill as the NAACP,²⁶⁶ a handful of lawyers, and the crusading law professor Anthony Amsterdam led a litigation effort that culminated with the Supreme Court's landmark decision in Furman v. Georgia.²⁶⁷

IV. The Post-Furman Period

¶ 59 Modern death penalty jurisprudence traces its origins to Furman, the case that declared death penalty laws nationwide unconstitutional as applied.²⁶⁸ At stake in Furman was the fate of three black defendants: a convicted murderer and two men sentenced to death for raping white women.²⁶⁹ By a five-to-four vote, the Supreme Court set aside all three death sentences, though the rationales for the Court's judgment varied considerably, with all nine Justices issuing their own individual opinions.²⁷⁰ In a terse, one-paragraph per curiam ruling, the majority held simply that "the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."²⁷¹ After reversing the judgments and cursorily remanding the cases, the Court punctuated its decision with every winning lawyer's favorite words: "So ordered." But the concurring and dissenting opinions, full of back-and-forth sparring, took up more than 200 pages, a record length.²⁷²Furman effectively set aside every U.S. death sentence, more than 500 in all, thus clearing out America's death row.²⁷³

¶ 60 The Justices' opinions in Furman reflected Americans' own diverse and conflicted views on capital punishment. Justice William O. Douglas said death penalty statutes were "pregnant with discrimination" and "unconstitutional in their operation."²⁷⁴ It violates the Eighth Amendment, he wrote, to apply the death penalty "selectively to minorities."²⁷⁵ Justice Brennan, in his opinion, concluded that "the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments."²⁷⁶ "A punishment is 'cruel and unusual,'" Brennan wrote, "if it does not comport with human dignity."²⁷⁷ Calling the "calculated killing of a human being" by the State "uniquely degrading to human dignity," he said the death penalty was rare, unnecessary, and "smacks of little more than a lottery system."²⁷⁸ "[I]t is certainly doubtful," Brennan concluded, "that the infliction of death by the State does in fact strengthen the community's moral code; if the deliberate extinguishment of human life has any effect at all, it more likely tends to lower our respect for human life and brutalize our values."²⁷⁹

¶ 61 Justice Potter Stewart called capital punishment "unique in its total irrevocability" and felt death sentences were cruel and unusual "in the same way that being struck by lightning is cruel and unusual."²⁸⁰ "For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these," Justice Stewart wrote, "the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed."²⁸¹ "[I]f any basis can be discerned for the selection of these few to be sentenced to die," Stewart noted, "it is the constitutionally impermissible basis of race."²⁸² "I simply conclude," Stewart wrote, "that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."²⁸³

¶ 62 For Justice Byron White, death sentences were so infrequently imposed that they became "pointless and needless," with White concluding that "the threat of execution is too attenuated to be of substantial service to criminal justice."²⁸⁴ For Justice Thurgood Marshall, the question was "not whether we condone rape or murder, for surely we do not; it is whether capital punishment is 'a punishment no longer consistent with our own self-respect' and, therefore, violative of the Eighth Amendment."²⁸⁵ "The criminal acts with which we are confronted are ugly, vicious, reprehensible acts," Marshall wrote, adding that "[t]heir sheer brutality cannot and should not be minimized."²⁸⁶ But to Marshall, "[t]he 'cruel and unusual' language limits the avenues through which vengeance can be channeled."²⁸⁷ "Were this not so," he wrote, "the language would be empty and a return to the rack and other tortures would be possible in a given case."²⁸⁸ Finding death sentences to be imposed in a discriminatory manner, mostly upon "the poor" and "the ignorant," Marshall found evidence that innocent people had been executed²⁸⁹ and concluded that "the death penalty is an excessive and unnecessary punishment."²⁹⁰

¶ 63 Justice Marshall—who, along with Justice Brennan, relentlessly contended that the death penalty is unconstitutional per se²⁹¹—set forth an extended discussion of his views on the Cruel and Unusual Punishments Clause. "[T]he Eighth Amendment is our insulation from our baser selves," Justice Marshall wrote,²⁹² adding that "whether or not a punishment is cruel and unusual depends, not on whether its mere mention 'shocks the conscience and sense of justice of the people,' but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust and unacceptable."²⁹³ "Assuming knowledge of all the facts presently available regarding capital punishment," Marshall wrote, "the average citizen would, in my opinion, find it shocking to his conscience and sense of justice."²⁹⁴ "There is no rational basis for concluding that capital punishment is not excessive," Marshall held.²⁹⁵ "The point has now been reached," he opined, "at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the Constitution."²⁹⁶

¶ 64 Justice Marshall opined that "a penalty that was permissible at one time in our Nation's history is not necessarily permissible today."²⁹⁷ He also wrote that capital punishment "violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history."²⁹⁸ For Marshall, public opinion polls were not decisive. Instead, Marshall's analysis focused on whether people, if fully informed, would find the death penalty unjust and unacceptable.²⁹⁹ "So few people have been executed in the past decade," Marshall explained, "that capital punishment is a subject only rarely brought to the attention of the average American."³⁰⁰ Accurate information about capital punishment, Marshall believed, would convince Americans that the death penalty was "unwise" and "immoral."³⁰¹ Marshall concluded: "In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute."³⁰²

¶ 65 On the flip side, the dissenters in Furman saw the majority's position as an affront to legislative judgments. Chief Justice Warren Burger found "no authority suggesting that the Eighth Amendment was intended to purge the law of its retributive element,"³⁰³ and concluded that "the constitutional prohibition against 'cruel and unusual punishments' cannot be construed to bar the imposition of the punishment of death."³⁰⁴ He lamented that only one year earlier, in McGautha v. California,³⁰⁵ the Court had upheld the prevailing sentencing scheme in capital cases, finding it "impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution."³⁰⁶ Burger believed jurors were "the keystone in our system of criminal justice,"³⁰⁷ and thought it "remarkable" that "it should now be suggested that we take the most sensitive and important of all decisions away from them."³⁰⁸ Burger, in fact, saw the rarity of death sentences as a good thing, not a constitutional infirmity. "The very infrequency of death penalties imposed by jurors attests their cautious and discriminating reservation of that penalty for the most extreme cases," Burger wrote.³⁰⁹

¶ 66 The other dissenters echoed Burger's sentiments. Justice Powell saw the majority ruling as "the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped,"³¹⁰ and Justice Rehnquist wrote that the task of judging "must surely be approached with the deepest humility and genuine deference to legislative judgment."³¹¹ Although Justice Harry Blackmun personally "rejoice[d]" at the Court's result,³¹² he, too, found himself unable to accept that result "as a matter of history, of law, or of constitutional pronouncement."³¹³ While he agreed that the Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," he took umbrage with "the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago."³¹⁴ "We should not," he concluded, "allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these."³¹⁵

¶ 67 Despite his disagreement with the Supreme Court's ruling, Justice Blackmun took time to give a lengthy explanation of his personal opposition to capital punishment. Foreshadowing his later rejection of capital punishment before his retirement, Blackmun forcefully wrote:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments.³¹⁶

¶ 68 The Furman decision, though closely divided, was widely seen as the death knell for America's death penalty. When the first English-language biography of Cesare Beccaria was published in Philadelphia in 1973, the well-known University of Chicago criminologist, Norval Morris, wrote the foreword, referring to America's death penalty in the past tense. "Beccaria was, of course, one of the leading early opponents of capital punishment," Morris wrote, confidently proclaiming, "[t]he final vindication by the Supreme Court of his view of the social inutility of this punishment, and of its unconstitutionality, confirmed the quality of Beccaria's perceptive vision."³¹⁷ Even many of the Justices themselves privately predicted that America would never witness another execution.³¹⁸ But state legislatures around the country did not see it that way, with thirty-five States quickly reenacting death penalty laws—all in response to the Furman decision.³¹⁹ This would lead to yet another round of high-profile, high-stakes litigation before the nation's highest court.

¶ 69 As Americans prepared for Bicentennial picnics and celebrations, the Supreme Court reversed course on capital punishment in Gregg v. Georgia,³²⁰ handed down on July 2, 1976. In that case, the Court defined a "cruel" punishment as one "so totally without penological justification that it results in the gratuitous infliction of suffering."³²¹ Though mandatory death penalty laws were struck down that same day in cases originating in Louisiana and North Carolina,³²²Gregg and two other simultaneously issued rulings, Jurek v. Texas³²³ and Proffit v. Florida,³²⁴ upheld capital punishment statutes that guided, or channeled, sentencing discretion.³²⁵Gregg upheld the constitutionality of Georgia's new death penalty law, which required jurors to find at least one "aggravating circumstance" before imposing a death sentence.³²⁶ The Court ruled that "the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance."³²⁷ "No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines," the Court ruled, finding that "a large proportion of American society" continues to regard executions "as an appropriate and necessary criminal sanction."³²⁸

¶ 70 Apart from the recent Eighth Amendment challenge to lethal injection, McCleskey v. Kemp³²⁹ was the last major systemic challenge to the death penalty to be heard by the Supreme Court. In that case, an African-American, Warren McCleskey, argued that Georgia's capital punishment scheme was administered in a racially discriminatory fashion. The Court, however, rejected reliance on reliable statistical data from the Baldus study showing that blacks who killed whites were sentenced to death "at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks."³³⁰ The majority opinion held that, troubling statistics notwithstanding, McCleskey had to prove discriminatory motive in his case, blandly noting that "[a]t most, the Baldus study indicates a discrepancy that appears to correlate with race," and stating with bald resignation that racial disparities in sentencing "are an inevitable part of our criminal justice system."³³¹ Years later, Justice Lewis Powell—the author of the McCleskey opinion and the deciding vote in that sharply divided 5-4 decision—would actually express regret at his vote in the case.³³²

¶ 71 The Gregg and McCleskey cases, which dashed abolitionist hopes that death sentences would be outlawed once and for all, forced death penalty opponents to open new fronts. Capital litigation continued unabated in individual cases, as it does today, but abolitionists had no choice but to find new ways to press their cause. In fact, the abolition movement—and its companion campaign, seeking a moratorium on executions—has only intensified in the last two decades.³³³ Not only has the abolition movement attracted new leadership, but it has also witnessed some important milestones since the late 1980s as death penalty foes have begun appealing directly to the American public.

¶ 72 Some specific events stand out, though any movement's success is always, in the end, a collective effort. Certainly much credit goes to Sister Helen Prejean for bringing new energy to the abolitionist fight. Sister Prejean's 1993 book, Dead Man Walking,³³⁴ became an instant New York Times bestseller and was made into an Academy Award-winning motion picture; her many speeches and public appearances have inspired a new generation of abolition leaders.³³⁵ Also, in 1994, Justice Harry Blackmun—still a sitting member of the Supreme Court—followed up, roundly condemning the death penalty in one of his judicial opinions. In his now famous dissent in Callins v. Collins,³³⁶ Blackmun succinctly stated:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.³³⁷

The American Bar Association, after studying the issue, stepped into the fray in 1997, calling for a moratorium on executions and setting off yet another round of questions and introspection about America's death penalty.³³⁸

¶ 73 Anti-death penalty efforts in the last ten years have been particularly notable. Bills to abolish the death penalty were considered in twelve states in 1999 alone;³³⁹ in 2000, Illinois Governor George Ryan imposed a statewide moratorium on executions;³⁴⁰ and that same year New Hampshire's legislature voted for abolition, though the state's governor later vetoed the bill.³⁴¹ As the twenty-first century began, at least 1000 grassroots organizations were pushing for a moratorium on executions,³⁴² and in 2007, the State of New Jersey—led by Governor Jon Corzine—abolished capital punishment entirely.³⁴³ More recently, Governor Bill Richardson of New Mexico signed a bill outlawing executions in that state.³⁴⁴ Multiple Supreme Court Justices have added their own voices to the debate, questioning the death penalty's continued use.³⁴⁵ Meanwhile, a spate of exonerations has laid bare the criminal justice system's human imperfections,³⁴⁶ with DNA evidence proving beyond any doubt that innocent people have been sent to death row.³⁴⁷

¶ 74 Indeed, as death row exonerations have surpassed one hundred,³⁴⁸ the number of death sentences handed out by American juries has fallen precipitously. From 1993 to 2000, more than 200 death sentences were handed out each year, with the number actually exceeding 300 in 1994, 1995, 1996, and 1998.³⁴⁹ But the number of American death sentences fell to 167 in 2001, to 153 by 2003, and to 115 in 2006.³⁵⁰ This decline reflects the American public's growing ambivalence toward the death penalty itself.

¶ 75 In a 2006 Gallup Poll, when offered a choice, forty-eight percent of survey respondents chose life-without-parole over death sentences; in contrast, only forty-seven percent of respondents chose the death penalty.³⁵¹ That marked the first time in twenty years that the death penalty came in second place.³⁵² A 2007 poll also found that eighty-seven percent of Americans believe innocent people have been executed in recent years; that sixty percent of respondents either strengthened their opposition to the death penalty or reduced their support for it because of news of wrongful convictions; and that fifty-eight percent of respondents were supportive of imposing a moratorium on executions.³⁵³

V. The Influence of International Law

¶ 76 Before World War II, international law failed to systematically address human rights issues and was silent on the death penalty.³⁵⁴ Sovereign states treated their citizens as they pleased, with Nazi courts and dictators like Stalin routinely imposing death sentences.³⁵⁵ Hitler and the Holocaust, however, changed all that, sparking worldwide calls for an end to such atrocities.³⁵⁶ The United Nations Charter, requiring states to promote human rights, was adopted in 1945,³⁵⁷ and in 1948 the post-war Universal Declaration of Human Rights proudly proclaimed, "[e]veryone has the right to life, liberty and security of the person."³⁵⁸ That landmark declaration was shepherded through the United Nations by Eleanor Roosevelt,³⁵⁹ who successfully moved to delete any reference to the death penalty in that document because of the "movement underway in some states to wipe out the death penalty completely."³⁶⁰

¶ 77 Other instruments of international law have also sought to end the culture of State impunity and to safeguard the right to life, thus shaping world opinion. The Geneva Conventions, for example, provide procedural protections for prisoners of war and civilians relative to the imposition of the death penalty.³⁶¹ One article states that "[t]o the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence relating to the armed conflict" and that "[t]he death penalty for such offences shall not be executed on such women."³⁶² Likewise, another article states: "The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed."³⁶³

¶ 78 The United States itself has recognized the "right to life" in the context of international law. In 1966, the United Nations General Assembly adopted a binding treaty, the International Covenant on Civil and Political Rights (ICCPR), which specifically instructs that "[e]very human being has the inherent right to life" and provides that "[n]o one shall be arbitrarily deprived of his life."³⁶⁴ The United States ratified that treaty,³⁶⁵ which also prohibits "torture" and "cruel, inhuman or degrading treatment or punishment"³⁶⁶ and bars the execution of pregnant women and those committing crimes below the age of eighteen.³⁶⁷

¶ 79 The Optional Protocol to the ICCPR, entered into force in 1976,³⁶⁸ authorized individual communications or petitions to the Human Rights Committee for treaty violations,³⁶⁹ and the Second Optional Protocol, adopted at the United Nations in 1989, is specifically aimed at the abolition of the death penalty.³⁷⁰ The United Nations General Assembly has also adopted resolutions pertaining to the death penalty's abolition,³⁷¹ with one U.N. body, the Economic and Social Council, adopting specific safeguards pertaining to the death penalty's imposition and use.³⁷² Indeed, in December 2007, the General Assembly passed a resolution calling upon member states that retain the death penalty "[t]o establish a moratorium on executions with a view to abolishing the death penalty."³⁷³

¶ 80 The U.N. Convention on the Rights of the Child (CRC), entered into force in 1990³⁷⁴ and ratified by every country save the United States and Somalia,³⁷⁵ expressly forbade capital punishment for juvenile offenders. According to Article 37 of the CRC: "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment shall be imposed for offences committed by persons below 18 years of age."³⁷⁶ This treaty, barring the execution of children and highlighting how out of step the United States has become in the world's eyes, no doubt played a role in the Supreme Court's decision to bar the practice.³⁷⁷

¶ 81 International tribunals formed to prosecute genocide, crimes against humanity, and war crimes also no longer allow death sentences. Article 77 of the Rome Statute of the International Criminal Court, which came into force in 2002, made "life imprisonment" the maximum penalty.³⁷⁸ Other ad hoc tribunals of international justice, including the ones for Rwanda and the former Yugoslavia, have not allowed the imposition of the death penalty either.³⁷⁹ This means that the world's worst human rights offenders—including men such as Slobodan Milosevic, whose trial in The Hague came to an abrupt end after he was found dead in his cell³⁸⁰—no longer face capital charges.

¶ 82 Regional human rights systems have also contributed to reform efforts by adopting treaties restricting the death penalty's use. In Europe, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty came into force in 1985.³⁸¹ That protocol, now ratified by forty-six countries,³⁸² explicitly provides in Article 1: "The death penalty shall be abolished. No one shall be condemned to such penalty or executed."³⁸³ The only circumstances under which the death penalty can be imposed under Protocol No. 6 are set forth in Article 2, which reads: "A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions."³⁸⁴

¶ 83 But Europe went even further at the dawn of the new century. Protocol No. 13 to the European Convention, adopted in 2003 and quickly ratified by forty countries,³⁸⁵ now unequivocally—even in wartime—bars the punishment of death. It eliminates any caveat or exception and simply reads: "The death penalty shall be abolished. No one shall be condemned to such penalty or executed."³⁸⁶ The European Union now actively pushes for the death penalty's abolition elsewhere, including in China and the United States, spending substantial sums of money towards that end and even appearing as amicus curiae before the Supreme Court.³⁸⁷

¶ 84 A large number of countries in the Organization of American States (OAS) have also abolished the death penalty.³⁸⁸ The Inter-American human rights system specifically protects "the right to life,"³⁸⁹ and the American Convention on Human Rights bars the death penalty's infliction in certain instances.³⁹⁰ Article 4(2) of that Convention provides that "[i]n countries that have not abolished the death penalty, it may be imposed only for the most serious crimes."³⁹¹ Article 4(3) states that "[t]he death penalty shall not be reestablished in states that have abolished it."³⁹² Article 4(4) states that "[i]n no case shall capital punishment be inflicted for political offenses or related common crimes."³⁹³ And Article 4(5) reads: "Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women."³⁹⁴ An Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, entered into force in 1991, categorically forbids the death penalty in times of peace.³⁹⁵

¶ 85 African and Arab countries have also promulgated treaties that impose certain restrictions on the death penalty's imposition. The African Charter on the Rights and Welfare of the Child, which came into force in 1999, states that "[e]very child has an inherent right to life" and further provides: "Death sentence shall not be pronounced for crimes committed by children."³⁹⁶ The Arab Charter on Human Rights, which entered into force in 2008,³⁹⁷ states that "[e]very human being has the inherent right to life," that "[t]his right shall be protected by law," and that "[n]o one shall be arbitrarily deprived of his life."³⁹⁸ The Arab Charter further provides that "[s]entence of death may be imposed only for the most serious crimes," and that "[a]nyone sentenced to death shall have the right to seek pardon or commutation of the sentence."³⁹⁹ In addition, the Arab Charter states that "[s]entence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime," and that "[t]he death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery."⁴⁰⁰

¶ 86 Around the globe, the death penalty is being utilized in fewer countries—and for fewer and fewer offenses. Saudi Arabia still beheads people,⁴⁰¹ and China still frequently conducts executions⁴⁰² using mobile execution vehicles to facilitate the harvest of organs for sale on the black market.⁴⁰³ It is increasingly clear, however, that capital punishment is falling out of favor around the world. According to Amnesty International, in 2008 at least 8864 people were sentenced to death in fifty-two countries. Perhaps more telling, only twenty-five countries actually carried out executions in 2008, and of the 2390 known executions that year ninety-three percent of them took place in just five nations: China, Iran, Saudia Arabia, Pakistan, and the United States.⁴⁰⁴ In 1999, the African Commission on Human and Peoples' Rights took the extraordinary step of adopting a resolution specifically urging African countries to put a moratorium on executions and to "reflect on the possibility of abolishing the death penalty."⁴⁰⁵

¶ 87 In Africa and Asia, the death penalty is still in use, but the abolitionist movement is taking hold even on those continents. "An emerging international trend towards abolition has found support on African soil," writes Frans Vilgoen at the University of Pretoria's Centre for Human Rights.⁴⁰⁶ Although death sentences under Islamic, or Shari'a, law are still common in places like Nigeria and Sudan,⁴⁰⁷ the country of Liberia—with its historic U.S. ties⁴⁰⁸—chose to ban executions in 2005, further lengthening the list of abolitionist countries in Africa.⁴⁰⁹ In South Korea, a strong anti-death penalty campaign has emerged, and no execution has taken place since December 1997.⁴¹⁰ Executions are also waning in Central and South America,⁴¹¹ though many Caribbean countries continue to resist legal reform.⁴¹² Even China—the world's execution leader⁴¹³—is considering reform.⁴¹⁴

¶ 88 America's death penalty, plagued by wrongful convictions, legal errors, and the intractable problems of arbitrariness, unfairness and racial bias,⁴¹⁵ has come under intense criticism both at home and abroad. Not only do executions raise all manner of moral questions, but death sentences cost more to carry out than life-without-parole sentences—and oftentimes condemned prisoners die of natural causes due to inevitable delays.⁴¹⁶ A recent report on California's death penalty, issued in 2008, found that thirty persons have been on California's death row for more than twenty-five years; 119 for more than twenty years; and 240 for more than fifteen years.⁴¹⁷ The national average for time elapsing between sentencing and execution is approximately twelve years.⁴¹⁸

¶ 89 Foreign courts even recognize what is known as "the death row phenomenon"—the prolonged wait between sentence and execution that America's condemned inmates face.⁴¹⁹ In Soering v. United Kingdom,⁴²⁰ the European Court of Human Rights refused to extradite a German national from the United Kingdom to Virginia out of concern over the prolonged stay on death row an individual would face if sentenced to death.⁴²¹ A number of foreign governments—U.S. allies like Canada, England, Italy and France—have actually refused to extradite people to the United States in the absence of assurances that the death penalty would not be sought.⁴²²

¶ 90 As a result of another line of cases, the United States has also come under criticism—and been rebuked by the International Court of Justice (ICJ)—for its handling of foreign nationals arrested for capital crimes. Article 36 of the Vienna Convention on Consular Relations requires that governments notify detainees from foreign countries of their right to consular assistance.⁴²³ The failure to do so for dozens of foreigners who landed on American death rows led Paraguay, Germany and Mexico to file actions before the ICJ.⁴²⁴ The ICJ—or the World Court, as it is commonly known—expressly determined that the United States violated international law in its handling of these death row inmates.⁴²⁵ Because American courts have sentenced to death more than 100 foreign nationals,⁴²⁶ the United States—in carrying out such executions—has drawn the ire of a number of countries, strained diplomatic relations, and lost respect in the international community.⁴²⁷

VI. The Eighth Amendment

¶ 91 Within the United States, the U.S. Constitution's Eighth Amendment has been a focal point of the contentious death penalty debate. The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."⁴²⁸ The idea behind the Eighth Amendment—of not inflicting draconian punishments—has been around in one form or another for centuries, easily pre-dating Beccaria's writings. The Magna Carta of 1215 guaranteed proportionate fines,⁴²⁹ tying the fine to the "magnitude" or "degree" of the offense.⁴³⁰ The prohibition on "cruel" punishments first found its way into American law through a Puritan attorney, the Cambridge-educated Rev. Nathaniel Ward of Ipswich, Massachusetts. A draft legal code prepared by Ward was enacted into law in 1641 under the title "Body of Liberties"—clause 46 of which reads: "For bodily punishments we allow amongst us none that are inhumane, barbarous or cruel."⁴³¹

¶ 92 The English Bill of Rights of 1689⁴³²—the predecessor of the Eighth Amendment and similar state constitutional provisions⁴³³—was enacted after William of Orange took the English throne in 1688.⁴³⁴ It provided: "[E]xcessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted."⁴³⁵ The driving force behind it was abuses by Lord Chief Justice George Jeffreys of the King's Bench during the Stuart reign of James II.⁴³⁶ Jeffreys presided over the "Bloody Assizes" after the Duke of Monmouth's rebellion in 1685, and a commission he led tried, convicted and oversaw the execution of hundreds of suspected rebels.⁴³⁷ Many of those rebels were executed by horrific means such as disembowelment, beheading, drawing and quartering, and the burning of female offenders—common punishments at the time, but ones that would later fall into disrepute.⁴³⁸

¶ 93 It was actually Jeffreys' arbitrary use of power in the case of Titus Oates—power traditionally exercised by ecclesiastical courts—that led to England's "cruell and unusuall Punishments" provision.⁴³⁹ Oates, a Protestant cleric, had been convicted of two counts of perjury in 1685 and was sentenced to be pilloried four times a year and stripped of his clerical position.⁴⁴⁰ Oates had made false allegations in 1678, causing the execution of fifteen Catholics for allegedly organizing a "Popish Plot" to overthrown King Charles II.⁴⁴¹ Sentenced to be whipped by "the common hangman," Oates did not die from these corporal punishments, and he petitioned both houses of Parliament to set aside his sentence as illegal after the adoption of the English Bill of Rights.⁴⁴²

¶ 94 The House of Lords affirmed the judgment, but a minority of the Lords dissented, calling Oates' punishment "barbarous, inhuman, and unchristian" and "contrary" to the English Bill of Rights, adding that "there is no Precedent to warrant the Punishments of whipping and committing to Prison for Life, for the Crime of Perjury." The dissenters saw the judgment of the King's Bench, which divested Oates of "his canonical and priestly Habit," as "a Matter wholly out of their Power, belonging to the Ecclesiastical Courts only." "Unless this Judgment be reversed," the dissenters intoned, "cruel, barbarous and illegal Judgments" would be encouraged. The House of Commons, after conducting its review, passed a bill to annul Oates' sentence, and Oates was released in 1689. The House of Commons specifically invoked England's new "cruell and unusuall" punishments clause, calling Oates' punishment "barbarous," an "ill Example to future Ages" and "unusual" in that "an Englishman should be exposed upon a Pillory, so many times a Year, during his Life."⁴⁴³

¶ 95 The U.S. Constitution's Eighth Amendment—added to assuage the concerns of Anti-federalists who worried about abuses of power⁴⁴⁴—was adopted against that historical backdrop. In 1791, when the Eighth Amendment was ratified, five state constitutions already prohibited "cruel or unusual punishments"⁴⁴⁵ and two others prohibited merely "cruel" punishments.⁴⁴⁶ The Eighth Amendment, however, was directly based on the Virginia Declaration of Rights, authored by George Mason, which prohibited "cruel and unusual punishments."⁴⁴⁷ Mason, a plantation owner from Fairfax County, had no formal training in law, and had simply adopted verbatim the language of the English Bill of Rights.⁴⁴⁸ This has led one scholar to conclude that the "cruel and unusual punishments" language—particularly to non-lawyers like George Mason—might have been seen as constitutional "boilerplate."⁴⁴⁹ Indeed, Thomas Jefferson later pointed out that when it came time to reform Virginia's laws, Mason withdrew from the task—seeing himself as unqualified because of his lack of legal training.⁴⁵⁰

¶ 96 In drafting Virginia's declaration, Mason wanted to ensure that American colonists would be on equal footing with other English subjects. Mason had asserted as early as 1766 that American colonists "claim Nothing but the Liberty & Privileges of Englishmen, in the same degree, as if we had still continued among our Brethren in Great Britain."⁴⁵¹ Indeed, in 1774, Mason had stated that colonists were entitled to all the "Privileges, Immunities and Advantages" of English law,⁴⁵² and certainly felt it important enough to include the "cruel and unusual punishments" language to protect Virginians' rights.⁴⁵³ "We have received the ancient constitutional and common-law rights of Englishmen from our Ancestors," Mason said, adding that "with God's Leave, we will transmit them, unimpaired to our Posterity."⁴⁵⁴

¶ 97 It is clear that many early American lawyers and jurists viewed the Eighth Amendment as barring vile methods of punishment—a fact revealed by a review of early American case reports. An 1801 case report from North Carolina cites a lawyer's argument that the common law punishment of "pressing to death" would violate the "cruel and unusual punishments" clause of the state constitution.⁴⁵⁵ A court decision from 1824, interpreting Virginia's cruel and unusual punishments clause, likewise opined that the provision was "merely applicable to the modes of punishment."⁴⁵⁶ The court ruled that "the best heads and hearts of the land of our ancestors, had long and loudly declaimed against the wanton cruelty of many of the punishments practised in other countries," with the court declaring that the clause "was framed effectually to exclude these, so that no future Legislature, in a moment perhaps of great and general excitement, should be tempted to disgrace our Code by the introduction of any of those odious modes of punishment."⁴⁵⁷

¶ 98 Although the Framers—men like James Madison, the principal drafter of the Constitution,⁴⁵⁸ and James Wilson, a gifted lawyer and legal scholar⁴⁵⁹—despised governmental abuses of power and excessive punishments,⁴⁶⁰ there exists very little legislative history as regards the Eighth Amendment.⁴⁶¹ The only recorded materials in the debates of the First Congress on the Bill of Rights are two comments about the vagueness of the clause by opponents of it.⁴⁶² This is all that appears:

Mr. Smith, of South Carolina, objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite.

Mr. Livermore [of New Hampshire]: The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.⁴⁶³

The record reveals that after these brief comments were made, the Eighth Amendment "was agreed to by a considerable majority."⁴⁶⁴

¶ 99 The absence of such a restraint in the Constitution as originally conceived is mentioned in only two of the state ratifying conventions. At the Massachusetts convention, Abraham Holmes spoke out against the possibility of barbaric punishments. An Anti-federalist and one of 364 delegates to the Massachusetts ratifying convention, Holmes expressed concern that the "diabolical institution" of the Spanish Inquisition—what he called "the disgrace of Christendom"—might be replicated in America.⁴⁶⁵ Holmes protested:

What gives an additional glare of horror to these gloomy circumstances is the consideration, that Congress have to ascertain, point out, and determine, what kinds of punishments shall be inflicted on persons convicted of crimes. They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.⁴⁶⁶

¶ 100 At Virginia's convention, Patrick Henry also expressed the fear that Congress would have unlimited power to prescribe punishments. Henry vehemently objected to the lack of a Bill of Rights, fearing "tortures" and "cruel and barbarous" punishments.⁴⁶⁷ Henry emphasized: "What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment."⁴⁶⁸ For example, Henry feared that Congress might "introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime."⁴⁶⁹ In discussing the proposed power of Congress to raise armies, Henry added:

Your men who go to Congress are not restrained by a bill of rights. They are not restrained from inflicting unusual and severe punishments, though the bill of rights of Virginia forbids it. What will be the consequence? They may inflict the most cruel and ignominious punishments on the militia, and they will tell you that it is necessary for their discipline.⁴⁷⁰

"[W]hen we come to punishments," Henry said, "no latitude ought to be left, nor dependence put on the virtue of representatives."⁴⁷¹ Emphasizing that Virginia barred "cruel and unusual punishments," Henry passionately pled his case: "Are you not, therefore, now calling on those gentlemen who are to compose Congress, to . . . define punishments without this control?"⁴⁷²

¶ 101 In the same debate, George Mason also expressed the view that "there were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation within ten miles square" as it "may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes."⁴⁷³ "Now, sir," Mason argued, "if an attempt should be made to establish tyranny over the people, here are ten miles square where the greatest offender may meet protection."⁴⁷⁴ Mason further opined that the Virginia Declaration of Rights prohibited torture, arguing in Virginia's ratifying convention in 1788 that a "clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition."⁴⁷⁵

¶ 102 Many Founding Fathers, including signers of the U.S. Constitution, did not oppose executions for certain crimes.⁴⁷⁶ For example, John Jay, the first President of the Continental Congress and the first Chief Justice of the Supreme Court, was asked whether he thought the death penalty violated the commandment against taking life. Jay replied it did not, saying, "[a]s to murderers, I think it not only lawful for government, but that it is the duty of government, to put them to death."⁴⁷⁷ Indeed, the First Congress made several crimes punishable by hanging, among them treason, murder on federal land, forgery, uttering forged securities, counterfeiting, and piracy on the high seas.⁴⁷⁸ However, many of America's Founders were deeply troubled by capital punishment for other classes of offenders. For instance, as New York's governor, Jay opposed capital punishment for lower-level offenders, arguing that "establishments for confining, employing, and reforming criminals" were "indispensible."⁴⁷⁹

¶ 103 According to one historian, James Madison—principal author of the U.S. Constitution and central actor in framing the Bill of Rights—"favored abandoning capital punishment altogether," though Madison himself wrote little on the subject and may not, in fact, have opposed executions for every category of offender.⁴⁸⁰ After Jefferson's bill for more proportionate punishments failed by a single vote in 1785, for example, Madison lamented to Jefferson that "our old bloody code is by this event fully restored."⁴⁸¹ Madison also told Dr. Benjamin Rush that he favored reforming criminals instead of executing them.⁴⁸² Likewise, in 1788, Madison—concerned about the severity of executions yet maybe still unsure of where he himself stood on the issue—made these remarks on a draft Virginia constitution prepared by Thomas Jefferson:

It is at least questionable whether death ought to be confined to "Treason and murder." It would not therefore be prudent to tie the hands of Government in the manner here proposed. The prohibition of pardon, however specious in theory would have practical consequences which render it inadmissible. A single instance is a sufficient proof. The crime of treason is generally shared by a number, and often a very great number. It would be politically if not morally wrong to take away the lives of all even if every individual were equally guilty. What name would be given to a severity which made no distinction between the legal & the moral offence—between the deluded multitude and their wicked leaders. A second trial would not avoid the difficulty; because the oaths of the jury would not permit them to hearken to any voice but the inexorable voice of the law.⁴⁸³

¶ 104 Perhaps the best statement of Madison's views on the death penalty was expressed privately. After he finished his presidential term, Madison wrote a letter to a war veteran who had solicited Madison's views on the subject. In 1823, G. F. H. Crockett, a Kentuckian, wrote to Madison, enclosing a copy of Crockett's address to the Kentucky legislature on the abolition of capital punishment.⁴⁸⁴ Madison wrote back later that year, noting receipt of Crockett's letter and his legislative address and referring to his "enlightened opinions."⁴⁸⁵ Madison noted the "innovations" that can be brought about by "the legislative power" of "each confederated member"—a clear reference to federalism—with Madison emphasizing the potential "extension" of such policies "to the whole if found to be improvements."⁴⁸⁶ Madison then commented:

I should not regret a fair and full trial of the entire abolition of capital punishments, by any State willing to make it: tho' I do not see the injustice of such punishments in one case at least. But it is not my purpose to enter into the important discussion. Nor do I know that I could furnish you with any new ideas or hints such as you ask, if there were time for the task. You seem to have consulted some of the sources where they were most likely to be found.⁴⁸⁷

Elsewhere, Madison would describe "capital punishments" as "one of the most solemn acts of sovereign authority."⁴⁸⁸

¶ 105 Another leading founder, James Wilson, expressed the view that America's criminal law "greatly needs reformation." He said that "the seeds of reformation are sown" but quickly cautioned: "Those seeds, and the tender plants which from some of them are now beginning to spring, let it be our care to discover and to cultivate."⁴⁸⁹ After calling the law of England "defective to a degree both gross and cruel" and citing Sabacos, who, in Egypt, replaced capital punishment with life sentences to be carried out "in the publick works," Wilson called for proportionate punishments and expressed the view that "[p]unishments ought unquestionably to be moderate and mild."⁴⁹⁰ Although Wilson supported the passage of the Pennsylvania law limiting the death penalty to first-degree murder, he acknowledged in his extensive writings that premeditated murder was still commonly punished by death.⁴⁹¹

¶ 106 But Wilson also took pride in progressive ideas and how few American crimes were punishable by death. In charging a Virginia grand jury in 1791, Wilson began with two directives: "To prevent crimes is the noblest end and aim of criminal jurisprudence." "To punish them is one of the means necessary for the accomplishment of this noble end and aim."⁴⁹² Near the end of his address, Wilson specifically invoked Beccaria, calling him "eloquent and benevolent," and echoed Beccaria's approach, saying, "[l]et the punishment be proportioned—let it be analogous—to the crime."⁴⁹³ Wilson also proudly proclaimed: "How few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England!"⁴⁹⁴

¶ 107 In discussing punishments, Wilson contrasted "moderate and mild" sentences with more severe sanctions, noting how "one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law."⁴⁹⁵ Telling grand jurors that "cruelty" is the "parent of slavery," Wilson called "cruel" punishments "dastardly and contemptible."⁴⁹⁶ "It is the opinion of some writers, highly respected for their good sense, as well as for their humanity," Wilson noted, no doubt alluding once more to Beccaria, "that capital punishments are, in no case, necessary. It is an opinion, which I am certainly well warranted in offering—that nothing but the most absolute necessity can authorize them."⁴⁹⁷ Decrying any "tyrant" who gave "standing instructions to his executioners" to "protract the expiring moments of the tortured criminal" and to "manage the butchering business with such studied and slow barbarity" as to prolong the pain, Wilson also added, speaking again of executions: "Another opinion I am equally warranted in offering—that they should not be aggravated by any sufferings, except those which are inseparably attached to a violent death."⁴⁹⁸

¶ 108 Even though the punishment of crime is a central role of government, federal criminal law issues were debated only modestly at the Constitutional Convention.⁴⁹⁹ The words "punish" and "Punishment" appear in the Constitution, but capital punishment is not mentioned in connection with those particular references.⁵⁰⁰ Limited discussion of the death penalty, however, did occur at the Convention on clauses other than the Eighth Amendment.⁵⁰¹ For instance, the Bankruptcy Clause was adopted on September 3, 1787 over the recorded dissent of Roger Sherman⁵⁰² of Connecticut: "Mr. Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England & He did not chuse to grant a power by which that might be done here."⁵⁰³ Similarly, the debate over the Treason Clause centered on how "Treason" should be defined and "whether treason committed against a State (as opposed to against the United States) could be separately punished."⁵⁰⁴ After the Framers debated the scope of the Treason Clause, the First Congress passed a law making treason punishable by death—though, at the Constitutional Convention of 1787, the Framers themselves rejected an attempt to exclude "cases of treason" from the President's pardoning power.⁵⁰⁵

¶ 109 Outside the Convention, anti-Federalist George Mason feared that Congress would use the Necessary and Proper Clause to create "new Crimes" or "inflict unusual and severe Punishments."⁵⁰⁶ In the campaign for ratification of the original Constitution, James Iredell, an ardent Federalist writing under the alias of "Marcus," replied to Mason's concern, trying to meet it: "The expressions 'unusual and severe' or 'cruel and unusual' surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification."⁵⁰⁷ "If to guard against punishments being too severe, the Convention had enumerated a vast variety of cruel punishments, and prohibited the use of any of them, let the number have been ever so great," Iredell mused, "an inexhaustible fund must have been unmentioned, and if our government had been disposed to be cruel their invention would only have been put to a little more trouble."⁵⁰⁸ Iredell—who thought "a labyrinth of detail" in "the original constitution of a government would have appeared perfectly ridiculous"—thus believed the amendment unnecessary, saying, "Let us also remember, that as those who are to make those laws must themselves be subject to them, their own interest and feelings will dictate to them not to make them unnecessarily severe . . . ."⁵⁰⁹

¶ 110 What can be said with certainty about the Eighth Amendment is that in America's founding era the words "cruel" and "unusual" had a number of common, everyday uses, as is still the case today.⁵¹⁰ Benjamin Franklin, for instance, called it "unjust and cruel" to punish a man on account of the guilt of another, and he referred to "cruel, unjust and barbarous Tempers."⁵¹¹ He also penned phrases such as "cruel Animosities,"⁵¹² "cruel Captivity,"⁵¹³ and "cruel treatment,"⁵¹⁴ and even referred to a "cruel Mother-in-Law."⁵¹⁵ In his writings, he also used the phrases "cruel Murders,"⁵¹⁶ "that cruel Disease,"⁵¹⁷ and "that cruel Gout,"⁵¹⁸ and made reference to "unusual Treatment,"⁵¹⁹ "unusual Quantities of Ice,"⁵²⁰ and "unusual Words in the Pamphlet."⁵²¹ In an American case reporter, published in 1796, a solicitor-general referred to a "beating" as "cruel or unusual."⁵²² There is even evidence that the framers of the English Bill of Rights and the Eighth Amendment may have understood the concept of "cruel and unusual" punishments as a unitary concept of inhumane or cruel punishment.⁵²³

¶ 111 Interestingly, some state constitutional provisions enacted shortly before and after the Eighth Amendment's ratification simply prohibited "cruel punishments," dropping any reference to the term "unusual."⁵²⁴ This suggests that some legislators may have viewed the "unusual" language as mere surplusage. Over time, of course, the various language variants—"cruel or unusual," "cruel and unusual," and simply "cruel"—all persisted, even finding their way into federal and state laws.⁵²⁵ By 1790, nine states had constitutional provisions barring "cruel and unusual," "cruel or unusual," or "cruel" punishments.⁵²⁶ And by the time the Fourteenth Amendment was adopted in 1868, seventeen state constitutions banned cruel and unusual punishments, fourteen state constitutions banned cruel or unusual punishments, and four state constitutions banned cruel punishments without any reference to the "unusual" terminology.⁵²⁷ Although a "cruel" or "unusual" punishment may itself imply a disproportionate one, some state constitutions, including New Hampshire's 1783 constitution, specifically called for "proportioned" punishments.⁵²⁸

¶ 112 Recently, the Eighth Amendment's use of the word "unusual" has attracted a lot of scholarly attention.⁵²⁹ One academic writes that "unusual" as used in the Eighth Amendment was "a term of art that referred to government practices that are contrary to 'long usage' or 'immemorial usage.'"⁵³⁰ "The opposite of a practice that enjoyed 'long usage," law professor John Stinneford wrote in 2008, "was an 'unusual' practice, or in other words, an innovation."⁵³¹ The term "unusual" itself, of course, has always had—and continues to have—a straightforward dictionary definition.⁵³² In common parlance, the word simply means "not usual," "not common" or "rare."⁵³³

VII. The Supreme Court's Eighth Amendment Jurisprudence

¶ 113 The meaning of the Eighth Amendment and similar state-law provisions has been the subject of much controversy. "The feeling that modern Eighth Amendment jurisprudence has gone off the rails," notes one commentator, "has arisen, at least in part, from the wildly inconsistent rulings that have emanated from the Supreme Court over the past few decades, particularly regarding proportionality in sentencing and the death penalty."⁵³⁴ That commentator also writes that "[a] number of scholars have previously pointed out the cruel irony inherent in the fact that the evolving standards of decency test ties the rights of criminal defendants to the very same majority opinion from which the Eighth Amendment is supposed to protect them."⁵³⁵

¶ 114 Judicial decisions give some flavor for how the Eighth Amendment was understood in the early days of the republic. For example, in 1825, the Pennsylvania Supreme Court struck down the punishment of Nancy James. Adjudged "a common scold" in 1824, James had been sentenced "to be placed in a certain engine of correction, called a cucking or ducking-stool . . . and being so placed therein, to be plunged three times into the water."⁵³⁶ In striking down the punishment, the Pennsylvania Supreme Court did not rely on constitutional grounds but noted:

The object of the framers of the act of 1790, was the abolition of all infamous, disgraceful, public punishments—all cruel and unnatural punishments—for all the classes of minor offences and misdemeanors, to which they had been before applied.

In coming to the conclusion, that the ducking-stool is not the punishment of scolds, I do not take into consideration the humane provisions of the constitutions of the United States and of this state, as to cruel and unusual punishments, further than they show the sense of the whole community. If the reformation of the culprit, and prevention of the crime, be the just foundation and object of all punishments, nothing could be further removed from these salutary ends, than the infliction in question. It destroys all personal respect; the women thus punished would scold on for life, and the exhibition would be far from being beneficial to the spectators. What a spectacle would it exhibit!⁵³⁷

¶ 115 The Supreme Court first examined the Eighth Amendment's history in Weems v. United States.⁵³⁸ In that case, the Court held that a fifteen-year sentence in irons and shackles⁵³⁹ for falsifying a document was excessive.⁵⁴⁰ "[I]t is a precept of justice," the Court ruled, echoing back to Beccaria, "that punishment for crime should be graduated and proportioned to offense."⁵⁴¹ After citing a legal scholar for the proposition that the Eighth Amendment was "'adopted as an admonition to all departments of the national government, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts,'"⁵⁴² the Court held that "a principle, to be vital, must be capable of wider application than the mischief which gave it birth."⁵⁴³

¶ 116 The Court in Weems found that the Eighth Amendment was originally motivated by a distrust of power—a distrust deeply felt by Patrick Henry and others.⁵⁴⁴ "[I]t was believed," the Court explained, "that power might be tempted to cruelty."⁵⁴⁵ In fact, as Virginia's governor, Patrick Henry himself had advocated for reform of the state's death penalty laws. As one of Henry's biographers has written:

As governor, Henry attempted to reform a number of British laws he considered harsh. The death penalty, for example, was imposed for many felonies, regardless of the severity of the crime. This was a practice that Henry felt was both unjust and cruel. He thus developed a plan of granting pardons, after hard labor, for lesser crimes. Writing to Charles Pearson, who was in charge of the pardoned prisoners, Henry commanded him "to observe such a degree of humanity towards these people as their condition will permit, in everything that relates to them." They are to have "plenty of wholesome food" and their clothes are to be "warm and comfortable."⁵⁴⁶

¶ 117 After noting the Founders' distrust of power, the Supreme Court in Weems then offered its own interpretive guidance. "Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken," the Court ruled.⁵⁴⁷ "This is peculiarly true of constitutions," the Court went on to explain, adding: "They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.'"⁵⁴⁸ In other words, the Constitution must be viewed as a vibrant, living document, not an antiquated catalog of eighteenth-century thought.

¶ 118 The Supreme Court has thus held that the Eighth Amendment bars not only "barbaric" punishments but also those that are "excessive" or "disproportionate" to the crime.⁵⁴⁹ Under Gregg, a punishment is "excessive" if it (1) "makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless infliction of pain and suffering," or (2) "is grossly out of proportion to the severity of the crime."⁵⁵⁰ Whether a death sentence is "disproportionate" to the crime committed depends on societal standards, controlling precedents, and the individual views of the Supreme Court Justices themselves.⁵⁵¹ A government must—it has been said more than once—exercise its power to punish "within the limits of civilized standards."⁵⁵²

¶ 119 A claim that a punishment is excessive is not judged by the standards that prevailed in pre-Revolutionary War times or when the Bill of Rights was adopted.⁵⁵³ Instead, the "basic concept" underlying the Eighth Amendment is "human dignity," and the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."⁵⁵⁴ The Supreme Court thus looks to the "norms" that "currently prevail,"⁵⁵⁵ frequently trying to discern whether or not there is a "national consensus" against one kind of punishment or another.⁵⁵⁶ But "[c]onsensus is not dispositive," and in assessing whether a punishment is disproportionate to the crime, it is "the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose" that must be consulted.⁵⁵⁷ The "'standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment,'" the Court has emphasized, explaining that "[t]he standard itself remains the same, but its applicability must change as the basic mores of society change."⁵⁵⁸

¶ 120 To assess the proportionality of a particular punishment, the Supreme Court once noted that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices," but "should be informed by objective factors to the maximum extent possible."⁵⁵⁹ While Supreme Court Justices now explicitly reserve the right to consult their own sense of morality in making these judgments, more often than not the Court weighs a host of "objective" criteria before reaching its decisions.⁵⁶⁰ As the Court has held: "When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized."⁵⁶¹

¶ 121 Over the years, the nation's highest court has consulted many different measures. In its cases, the Supreme Court has examined the gravity of the offense,⁵⁶² a penalty's severity,⁵⁶³ the circumstances of the defendant's crime,⁵⁶⁴ public attitudes,⁵⁶⁵ state practice,⁵⁶⁶ legislative acts,⁵⁶⁷ and jury verdicts.⁵⁶⁸ The Court has also compared the sentences imposed on other criminals in the same jurisdiction or in other jurisdictions.⁵⁶⁹ But no one factor or criterion is dispositive in a given case,⁵⁷⁰ no penalty is per se constitutional, and it is the "independent judgment" of Justices themselves that must be brought to bear in deciding a punishment's acceptability under the Eighth Amendment.⁵⁷¹

¶ 122 Ironically, by allowing the use of "death-qualified" juries, whereby death penalty opponents are excluded from capital juries, the Supreme Court has skewed some of the very data it considers in making Eighth Amendment judgments. Indeed, because capital juries are usually required to reach unanimous verdicts, death-qualified juries lead to more death sentences than might otherwise be expected as any potential hold-outs are eliminated from the jury pool at the outset.⁵⁷² "Litigation involving both challenges for cause and peremptory changes," Justice John Paul Stevens has written, "has persuaded me that the process of obtaining a 'death qualified jury' is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction."⁵⁷³ "The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors," Justice Stevens concluded, "should be viewed as objective evidence supporting the conclusion that the penalty is excessive."⁵⁷⁴

¶ 123 Since Weems, the Eighth Amendment has been interpreted—and applied—in a variety of contexts by the Supreme Court. In Trop v. Dulles,⁵⁷⁵ a U.S. Army private was court-martialed, convicted of desertion, given a dishonorable discharge, and sentenced to "three years at hard labor" with "forfeiture of all pay and allowances."⁵⁷⁶ He was also stripped of his American citizenship.⁵⁷⁷ Finding an Eighth Amendment violation, the Supreme Court held that "the total destruction of the individual's status in organized society" is "a form of punishment more primitive than torture."⁵⁷⁸ "[T]he expatriate has lost the right to have rights," the Court ruled.⁵⁷⁹ The scope of the Eighth Amendment, the Court emphasized, "is not static," with the Court noting that "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man."⁵⁸⁰ "While the State has the power to punish," the Court stated, "the Amendment stands to assure that this power be exercised within the limits of civilized standards."⁵⁸¹ The Court also remarked that "[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime."⁵⁸²

¶ 124 Also in the non-capital context, Robinson v. California⁵⁸³ struck down a criminal sentence and held that while "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual," it may not be imposed for the "status" of being "addicted to the use of narcotics."⁵⁸⁴ As Justice Stewart explained in Robinson: "Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."⁵⁸⁵ And in Solem v. Helm,⁵⁸⁶ the Court held that imposing a life-without-possibility-of-parole sentence upon a repeat offender for uttering a $100 no-account check was prohibited by the Eighth Amendment.⁵⁸⁷ "Incarcerating him for life without possibility of parole," the Court ruled, "is unlikely to advance the goals of our criminal justice system in any substantial way" and was found to be "disproportionate" and "therefore prohibited by the Eighth Amendment."⁵⁸⁸

¶ 125 In capital cases, the Supreme Court has frequently used the Eighth Amendment to restrict the categories of death-eligible offenses.⁵⁸⁹Ford v. Wainwright⁵⁹⁰ barred the execution of the insane.⁵⁹¹Atkins v. Virginia,⁵⁹² in which the Court overruled a prior precedent, citing a "dramatic shift in the state legislative landscape,"⁵⁹³ outlawed the execution of the mentally retarded.⁵⁹⁴Roper v. Simmons⁵⁹⁵ barred the execution of offenders who were under the age of eighteen at the time of their crimes.⁵⁹⁶Enmund v. Florida⁵⁹⁷ forbade the execution of a defendant who aided and abetted a robbery during which a murder took place but in which that defendant did not take life, attempt to kill, or intend that lethal force be used in the commission of the crime.⁵⁹⁸ The thread running through these Supreme Court cases is that the offender—as the Court itself has acknowledged—had "a diminished personal responsibility for the crime."⁵⁹⁹

¶ 126 In Coker v. Georgia,⁶⁰⁰ the Supreme Court also held that a death sentence was "grossly disproportionate and excessive punishment" for the rape of an "adult woman."⁶⁰¹ Emphasizing that Georgia, where the rape took place, was the sole U.S. jurisdiction authorizing a sentence of death for that crime,⁶⁰² the Court held that the sentence violated the Eighth Amendment's cruel and unusual punishments clause.⁶⁰³ As the Court ruled: "The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."⁶⁰⁴ And in 2008, the Coker ruling was extended to acts of child rape.⁶⁰⁵ The Court held that, at least with respect to cases that involve individual crimes, the death penalty would not be permitted for a non-homicidal act.⁶⁰⁶

¶ 127 The Supreme Court has also used the Eighth Amendment to "ensure consistency in determining who receives a death sentence."⁶⁰⁷ To guarantee "restraint and moderation in use of capital punishment,"⁶⁰⁸ the Supreme Court has insisted on judging the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."⁶⁰⁹ Thus, a defendant in a capital trial has the right to raise as a mitigating factor any aspect of his or her character or record and any circumstances of the offense that might be a basis for a sentence less than death.⁶¹⁰ The inherent conflict between these constitutional principles—that defendants be treated alike, to avoid racial bias and other inequities, yet also be treated as individuals, to recognize their humanity and unique characteristics—led Justice Blackmun to conclude the death penalty itself is unconstitutional.⁶¹¹

¶ 128 In its rulings, the Supreme Court often starts by looking at how many states either prohibit or permit a particular punishment.⁶¹² When Atkins was decided in 2002, the Court noted that thirty states, including twelve abolitionist ones, prohibited the death penalty for mentally retarded offenders, whereas only twenty states permitted that punishment.⁶¹³ When Roper was handed down in 2005, the Court observed that thirty states prohibited the death penalty for juveniles, whereas only twenty states authorized such a sentence.⁶¹⁴ In Enmund, the Court also emphasized that only eight jurisdictions authorized a death sentence solely for participation in a robbery during which an accomplice committed a murder.⁶¹⁵ And in Kennedy the Court emphasized that "it is of significance that, in forty five jurisdictions, petitioner could not be executed for child rape of any kind"—a number that "surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered."⁶¹⁶

¶ 129 The counting of states permitting or prohibiting a death sentence is definitely part of the Eighth Amendment calculus, but the Supreme Court's opinions make clear that such a mechanical count is not the decisive factor. For example, in Atkins, after noting that fifteen states had recently barred the execution of the mentally retarded,⁶¹⁷ the Court held that "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change."⁶¹⁸ Likewise, in Roper, the Court acknowledged that "the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it," had been "slower" than in the mental retardation context,⁶¹⁹ but noted the "less dramatic" change was still "significant" and that "the same consistency of direction of change has been demonstrated."⁶²⁰ In Kennedy, after acknowledging that a handful of states had passed new laws making child rape a capital crime,⁶²¹ the Court put it this way: "The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it."⁶²² Thus, the fact that one or more states permit a particular punishment is not dispositive.⁶²³

¶ 130 The Court also looks carefully at how often a particular punishment is actually meted out. In Enmund, only six defendants could be identified who had been sentenced to death between 1954 and 1982 for felony murder where the defendant did not personally commit the homicidal act.⁶²⁴ In Roper, though just five additional states had outlawed juvenile executions in the preceding fifteen years,⁶²⁵ the evidence showed the execution of juvenile offenders was extremely rare.⁶²⁶ In the prior ten years, only three states, Oklahoma, Texas and Virginia, had executed juvenile offenders.⁶²⁷ In Atkins, only five states had executed offenders known to have an IQ below seventy⁶²⁸ between 1989 and 2002.⁶²⁹ And in Kennedy, the Court emphasized that "[s]tatistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society."⁶³⁰ The Court noted that "no individual has been executed for the rape of an adult or child since 1964" and that "no execution for any other non-homicide offense has been conducted since 1963."⁶³¹

¶ 131 Although it has found capital punishment in these situations to violate the Eighth Amendment, the Supreme Court has indicated that the death penalty is not per se unconstitutional.⁶³² For example, in Trop, the Court stated in dicta:

Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.⁶³³

In Gregg, the Supreme Court also stated that "[t]he Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment"—though the Court, in upholding Georgia's death penalty law, acknowledged that until Furman it had not "confronted squarely" the claim that the death penalty was per se unconstitutional.⁶³⁴ The Baze decision, which set off a new round of American executions,⁶³⁵ also reaffirmed that the Supreme Court now does not view the death penalty itself as unconstitutional.⁶³⁶

¶ 132 The Supreme Court, in fact, has upheld the constitutionality of more than one method of execution. In Wilkerson v. Utah,⁶³⁷ the Court approved the use of a public firing squad, finding that execution by shooting or hanging was a customary military practice.⁶³⁸ In In re Kemmler,⁶³⁹ the Court rejected an Eighth Amendment challenge to the use of the electric chair.⁶⁴⁰Holden v. Minnesota⁶⁴¹ approved laws requiring private, nighttime executions,⁶⁴² thus accelerating the passage of such laws.⁶⁴³ Another Eighth Amendment challenge, to a New York law requiring solitary confinement of convicted murderers prior to their execution, was rejected in McElvaine v. Brush.⁶⁴⁴ In Louisiana ex rel. Francis v. Resweber,⁶⁴⁵ the Court held that it was not "cruel and unusual punishment" to carry out an inmate's execution after the first attempt to electrocute him failed to cause the inmate's death.⁶⁴⁶ And in Baze, the Supreme Court upheld Kentucky's lethal injection protocol.⁶⁴⁷ What remains to be seen, of course, is how the Supreme Court will deal with future challenges, whether to other lethal injection protocols,⁶⁴⁸ to the execution of mentally ill inmates,⁶⁴⁹ or to the death penalty itself.

VIII. From Beccaria to Baze

¶ 133 The young Italian philosopher, Cesare Beccaria, identified or anticipated nearly all of the problems that have plagued—and continue to plague—capital punishment. He identified the barbaric example that the death penalty sets, arguing that executions do not deter crime any better than life imprisonment.⁶⁵⁰ "[T]he strongest impediment to crimes is not the terrible and fleeting spectacle of death of a wretch," Beccaria believed, "but the long and repeated example of a man deprived of his liberty. . . ."⁶⁵¹ He condemned the arbitrariness and unfettered discretion that is so often present in the law—and that has particularly deadly consequences when a person's life is at stake.⁶⁵² He railed against the inequalities he saw in the legal system⁶⁵³—prejudices that have been associated with capital punishment for centuries.⁶⁵⁴ And he recognized the death penalty's "irreparability," the ever-present possibility of human error, and thus the continual risk of condemning or executing the innocent.⁶⁵⁵

¶ 134 Beccaria's part utilitarian/part retributivist philosophy⁶⁵⁶ was focused not only on enforcing the rule of law and punishing crime, but also on preventing crime. Swift, proportionate punishments, not barbaric ones, Beccaria believed, were "more just and useful."⁶⁵⁷ Today, of course, the handful of inmates who are executed in America—and often in the most arbitrary and capricious manner imaginable⁶⁵⁸—spend years on death row before being executed.⁶⁵⁹ "Do you want to prevent crimes?" Beccaria wrote. "Then see to it that enlightenment accompanies liberty."⁶⁶⁰ Beccaria saw education as a key to preventing crime,⁶⁶¹ and viewed executions as unnecessary and ineffective deterrents.⁶⁶² He went on to say: "[W]hile the death penalty may be the most rapid way of getting rid of guilty people, it is not the most useful to deter crimes."⁶⁶³

¶ 135 Beccaria detailed his ideas in On Crimes and Punishments. "For the death penalty to be deemed necessary to serve as an example capable of discouraging the most serious crimes," Beccaria wrote, "it would be necessary to prove with facts, showing that where the death penalty has been most frequently employed, such crimes were far fewer in number than in places where the same death penalty was used less or not at all."⁶⁶⁴ Just as Beccaria found the opposite to be true,⁶⁶⁵ modern-day statistics consistently show that, in America, death penalty states have far worse homicide rates than abolitionist states.⁶⁶⁶ Some studies even conclude that executions, far from deterring crime, actually have a brutalizing effect, causing more homicides.⁶⁶⁷ The long-standing and persistent focus on statistical data, of course, glosses over the real moral and human rights issues raised by the death penalty.

¶ 136 Beccaria's far-reaching influence on Anglo-American law—and on the death penalty debate—is demonstrated by the sheer number of references to him. Many American judges have cited Beccaria,⁶⁶⁸ and his name appears in multiple Supreme Court cases.⁶⁶⁹ In Ullmann v. United States,⁶⁷⁰ for example, the petitioner claimed that the Immunity Act of 1954, making it a crime to refuse to testify about matters of national security, violated the Fifth Amendment privilege against self-incrimination.⁶⁷¹ The Supreme Court upheld the Act,⁶⁷² but Justices William O. Douglas and Hugo Black dissented, invoking Beccaria, calling for the reversal of the petitioner's conviction, and arguing that "[t]he Fifth Amendment was designed to protect against infamy⁶⁷³ as well as prosecution."⁶⁷⁴ Beccaria was "well known" in America, particularly to Jefferson, the dissenters argued, noting that the Italian thinker "was the main voice against the use of infamy as punishment."⁶⁷⁵

¶ 137 The other Beccaria mentions are brief, but still show the man's considerable influence among liberals and conservatives alike. In Furman v. Georgia,⁶⁷⁶ Beccaria was relegated to a footnote, cited by Justice Thurgood Marshall for the proposition that "[p]unishment as retribution has been condemned by scholars for centuries."⁶⁷⁷ And in Payne v. Tennessee,⁶⁷⁸ Chief Justice William Rehnquist invoked Beccaria in finding that the Eighth Amendment did not prohibit sentencing juries from considering victim impact evidence.⁶⁷⁹ As Chief Justice Rehnquist wrote: "Writing in the 18th century, the Italian criminologist Cesare Beccaria advocated the idea that 'the punishment should fit the crime.' He said that '[w]e have seen that the true measure of crimes is the injury done to society.'"⁶⁸⁰

¶ 138 Since Beccaria's time, American judges have become key participants in the death penalty debate. In Baze v. Rees,⁶⁸¹ death row inmates claimed that Kentucky's three-drug, lethal injection protocol violated the Eighth Amendment's cruel and unusual punishments clause.⁶⁸² The prisoners claimed that Kentucky's protocol posed an unacceptable risk of significant pain.⁶⁸³ Although Kentucky's law did not specify a particular protocol that had to be followed,⁶⁸⁴ state officials developed a protocol that called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride.⁶⁸⁵ Sodium thiopental is a fast-acting sedative that, if properly administered, induces a deep, coma-like unconsciousness;⁶⁸⁶ pancuronium bromide is a paralytic agent that suppresses muscle movements and stops respiration; and potassium chloride induces cardiac arrest.⁶⁸⁷ The death-row inmates in Baze contended that improper administration of sodium thiopental would cause them to suffer severe pain and that the State of Kentucky had failed to take adequate precautions to protect inmates from excruciatingly painful executions.⁶⁸⁸

¶ 139 Part of the inmates' challenge targeted the poor training of execution participants.⁶⁸⁹ In Kentucky, doctors play no role in executions because a state statute bars physicians from participating in the "conduct of an execution," except to certify the cause of death.⁶⁹⁰ A certified phlebotomist and an emergency medical technician were instead tasked with performing the venipunctures necessary for the catheters, with other personnel loading the chemicals into the syringes.⁶⁹¹ In order to reduce the risk of maladministration of the protocol, Kentucky required IV team members to have at least one year of professional experience and to participate, along with other team members, in at least ten practice sessions per year.⁶⁹² The protocol also called for the IV team to establish both primary and back-up lines and prepare two sets of the lethal injection drugs. These measures were intended to ensure that if an insufficient dose of sodium thiopental was initially administered an additional dose could be given through the back-up line.⁶⁹³

¶ 140 The Baze case generated multiple opinions. In a plurality opinion authored by Chief Justice John Roberts, the Supreme Court held that Kentucky's protocol was acceptable and that the state's failure to adopt an alternative, assertedly more humane protocol did not render Kentucky's scheme unconstitutional.⁶⁹⁴ "[A]n inmate cannot succeed on an Eighth Amendment claim," Chief Justice Roberts wrote, "simply by showing one more step the State could take as a failsafe for other, independently adequate measures."⁶⁹⁵ "It is clear," Roberts wrote, "that the Constitution does not demand the avoidance of all risk of pain in carrying out executions."⁶⁹⁶

¶ 141 Kentucky's death row inmates had proposed an alternative, one-drug protocol that would have dispensed with the use of pancuronium and potassium chloride—a protocol never adopted or tested by any State for executions.⁶⁹⁷ In support of this approach, they pointed out that a barbiturate-only protocol is used routinely by veterinarians in putting animals to sleep and that twenty-three States actually bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide.⁶⁹⁸ Affirming the lower court's judgment, however, the Supreme Court ruled that the inmates "have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment."⁶⁹⁹

IX. Where We Stand

¶ 142 In the United States, approximately 3300 people live on death row, though fifteen states and the District of Columbia have now done away with capital punishment.⁷⁰⁰ Thirty-five states, plus the federal government and the U.S. military, still authorize the death penalty,⁷⁰¹ though federal executions are infrequent.⁷⁰² Kansas, New Hampshire and the U.S. military—all of which authorize executions—have actually not seen one in over three decades.⁷⁰³ Since 1976, there have been more than 1100 executions in the U.S., with the annual number peaking at ninety-eight in 1999.⁷⁰⁴ But executions have trailed off since 1999, with the number declining to forty-two in 2007 and falling even further in 2008 as executions were put on hold while the Court considered the challenge to lethal injection.⁷⁰⁵

¶ 143 Although Baze paved the way for more executions by upholding Kentucky's lethal injection protocol, that case drew two dissenters.⁷⁰⁶ Justice John Paul Stevens—writing with candor and passion, though concurring in the result—criticized the way in which capital punishment laws are enforced. He emphasized that America's decision to retain the death penalty is "the product of habit and inattention rather than an acceptable deliberative process,"⁷⁰⁷ and he said that "the imposition of the death penalty represents 'the pointless and needless extinction of life.'"⁷⁰⁸ Noting that Kentucky barred veterinarians from using neuromuscular paralytic agents like pancuronium bromide for animal euthanasia, Justice Stevens wrote pointedly: "It is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets."⁷⁰⁹

¶ 144 Already, the death penalty is largely a regional phenomenon. Just ten states, Alabama, Florida, Georgia, Louisiana, Missouri, Oklahoma, North Carolina, South Carolina, Texas, and Virginia, account for more than eighty percent of all executions nationwide since 1976.⁷¹⁰ Since executions resumed in America in 1977 with Gary Gilmore's execution in Utah,⁷¹¹ Texas alone has carried out over 400 executions (more than one-third of all executions)—making Texas the nation's undisputed execution capital.⁷¹² In fact, since Baze, the first twenty executions all took place in the South, with forty percent of them again taking place in just one locale, the State of Texas.⁷¹³

¶ 145 But even in the Lone Star State—where public opinion polls have consistently shown strong support for capital punishment—things are changing. In 2007, the Dallas Morning News, unable to reconcile the death penalty's imperfections and its irreversibility, changed its position and now advocates abolition. "We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder," the editorial board wrote.⁷¹⁴ And in 2008, after yet another inmate's exoneration, Dallas County District Attorney Craig Watkins announced that his office would review nearly forty death penalty convictions for potential errors and, if necessary, halt executions pending the review.⁷¹⁵

¶ 146 It is clear, now more than ever, that a worldwide trend toward the death penalty's abolition is afoot.⁷¹⁶ The sheer number of countries that have outlawed executions since 1975, in fact, demonstrates just how far the world's abolitionist movement has come.⁷¹⁷ In the late 1970s, Portugal, Denmark, Luxembourg, Nicaragua and Norway abolished the death penalty for all crimes, and Brazil, Fiji and Peru outlawed death sentences for ordinary crimes.⁷¹⁸ In the 1980s, France, The Netherlands, Australia, Haiti, Liechtenstein, the German Democratic Republic, Cambodia, New Zealand, Romania and Slovenia abolished capital punishment for all crimes, and Cyprus, El Salvador and Argentina did away with death sentences for ordinary crimes.⁷¹⁹

¶ 147 This abolitionist trend continued unabated in the 1990s, with thirty-two countries and Hong Kong abolishing capital punishment for all crimes⁷²⁰ and several other countries forbidding death sentences for ordinary crimes.⁷²¹ In the twenty-first century, as of 2008, fifteen more countries abolished the death penalty for all crimes,⁷²² with others outlawing capital punishment for ordinary crimes.⁷²³ Given what has happened thus far, it seems likely that other countries around the world will follow suit in the years to come. For America itself, it is an undeniable reality that the debate is shifting and that many changes have taken place since the time of Beccaria and the Founding Fathers.

¶ 148 Executions in the United States were once rowdy, public affairs, often attended by hundreds or thousands of spectators, and these spectacles were frequently replete with drunkenness, merriment and even acts of crime committed in the very shadow of the gallows.⁷²⁴ At the 1822 execution of John Lechler in Pennsylvania, pickpockets worked the crowd and at least fifteen of the 20,000 spectators were arrested, one for larceny, another for murder, and still others for assault and battery or vagrancy.⁷²⁵ The widespread belief that such scenes only brutalized society is actually what largely prompted legislators to relocate executions indoors, behind thick prison walls.⁷²⁶

¶ 149 As American executions moved into prisons, state legislatures often simultaneously enacted "gag" laws—such as Minnesota's "midnight assassination law," which required private, nighttime executions that could only be witnessed by a few people—to strictly regulate attendance at executions.⁷²⁷ Such laws generally limited attendance to six to twelve "reputable" or "respectable" citizens,⁷²⁸ often barred newspaper reporters from attending executions or otherwise restricted media access, and even made it a crime to report the details of executions.⁷²⁹ Politicians became so concerned after these spectacles that, in 1893, Connecticut, for example, passed a private execution law that only permitted "adult males" to attend executions.⁷³⁰ The ritual of American executions has thus evolved, and is now hidden from public view, visible only to a handful of prison officials, hand-picked media representatives, and official witnesses.⁷³¹

¶ 150 Not only did the privatization of executions radically alter America's death penalty debate, but two other developments—the move to nighttime executions and changes in the method of execution—also shaped that debate in significant ways.⁷³² The passage of nighttime execution laws, requiring hangings "before sunrise" or between, say, midnight and 3:00 a.m., as Delaware law provides,⁷³³ made clear that legislators wanted to shield the public and the press from these gruesome events.⁷³⁴ Such laws, first passed in the 1880s in the Midwestern states of Ohio, Indiana, and Minnesota, were soon enacted around the country, forcing executions into the dead of night.⁷³⁵ From 1977 to 1995, more than eighty percent of all American executions took place between the hours of 11:00 p.m. and 7:30 a.m., with over half taking place between midnight and 1:00 a.m.⁷³⁶ Americans, in other words, were often fast asleep when executions took place.

¶ 151 The continual search for—and implementation of—more "humane" ways to put inmates to death shows the discomfort associated with state-sanctioned killing. The preferred method of execution shifted from the noose⁷³⁷ and firing squad⁷³⁸ to electrocution⁷³⁹ and the gas chamber⁷⁴⁰ to what we predominately use today: lethal injection.⁷⁴¹ Chemically induced death—now the preferred method of execution—attempts to clinically mask the horror of state-sponsored killings, even as many physicians categorically refuse to participate in these veiled rituals that predate the Dark Ages.⁷⁴²

¶ 152 In the last few decades, yet another U.S. development is of note: the frontal assault on habeas corpus. It began with a series of Supreme Court cases curtailing the availability of that venerable, centuries-old remedy.⁷⁴³ The Court in Coleman v. Thompson,⁷⁴⁴ for example, refused to consider a death-row inmate's claims after his lawyer filed the notice of appeal three days late.⁷⁴⁵ In other cases, death-row inmates' claims have been denied on the basis of complex legal doctrines such as the Teague v. Lane⁷⁴⁶ "non-retroactivity" principle.⁷⁴⁷ In one case, the Supreme Court even held that death row inmates—who have no realistic ability to vindicate their habeas corpus rights without a lawyer—have no constitutional right to counsel in habeas corpus proceedings.⁷⁴⁸

¶ 153 The assault continued with the passage of the Antiterrorism and Effective Death Penalty Act of 1996.⁷⁴⁹ That Act contains a one-year statute of limitations, makes it more onerous to file habeas petitions, and requires federal courts to give greater deference to state courts—all in an effort to streamline court proceedings to speed up executions.⁷⁵⁰ The culmination of the assault on habeas corpus came when the Bush Administration determined that detainees in U.S. custody could be held for indefinite periods of time without charge.⁷⁵¹ Only in 2008 did the Supreme Court step in and rule that Guantánamo Bay detainees—some held for over six years—have the constitutional right to file habeas corpus petitions to challenge the legality of their detention.⁷⁵²

¶ 154 Although George W. Bush oversaw many Texas executions as governor and the Bush Administration fervently backed capital prosecutions,⁷⁵³ the abolitionist movement in the United States—and around the world⁷⁵⁴—is still very much alive. The National Coalition to Abolish the Death Penalty⁷⁵⁵ does advocacy work and puts out alerts, and dozens of affiliates and other national and state organizations, including the Campaign to End the Death Penalty⁷⁵⁶ and The Moratorium Campaign,⁷⁵⁷ also work to end capital punishment.⁷⁵⁸ The ACLU also seeks a national moratorium on executions; Murder Victims' Families for Reconciliation,⁷⁵⁹ comprised of the family members of homicide victims, opposes capital punishment; and Amnesty International regularly opposes executions and tracks death penalty developments.⁷⁶⁰ Another non-profit, the Death Penalty Information Center, maintains a comprehensive website providing the latest information on death penalty issues.⁷⁶¹ All of these entities are harnessing the power of the Internet and combating capital punishment with another powerful tool: the facts.

X. What Lies Ahead?

¶ 155 The death penalty has been used for centuries, so it would be naïve to believe that this form of punishment will die out without a difficult and prolonged fight. In the United States, the battles over death sentences were fought first in state legislatures, then moved to the courts, culminating with the challenge to the death penalty's constitutionality in Furman. Although the Supreme Court has rejected constitutional challenges to the death penalty itself and to the most common method of execution—lethal injection—this does not mean that Eighth Amendment challenges are dead letters. On the contrary, the Eighth Amendment continues to have vitality, if for no other reason than because the Eighth Amendment's interpretation is tied to changing public attitudes and the "evolving standards of decency that mark the progress of a maturing society"—the touchstone that the Supreme Court itself has articulated as the law.⁷⁶²

¶ 156 While the Supreme Court may not declare the death penalty unconstitutional anytime soon, its Eighth Amendment jurisprudence is already fraught with irreconcilable contradictions brought about by the inhumanity of executions.⁷⁶³ The Supreme Court, for example, has repeatedly made clear that the Eighth Amendment safeguards a prisoner's treatment and his or her conditions of confinement.⁷⁶⁴ When someone is imprisoned, the Constitution imposes "a corresponding duty" on the government "to assume some responsibility" for that inmate's "safety and general well being."⁷⁶⁵ Thus, the Supreme Court's Eighth Amendment jurisprudence protects inmates from physical harm yet permits their execution.

¶ 157 In Estelle v. Gamble,⁷⁶⁶ the Supreme Court specifically held that "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment because it constitutes the "unnecessary and wanton infliction of pain."⁷⁶⁷ Likewise, in Helling v. McKinney,⁷⁶⁸ the Court held that a prisoner stated a civil rights claim under the Eighth Amendment based on exposure to second-hand smoke.⁷⁶⁹ In yet another case, Hope v. Pelzer,⁷⁷⁰ the Court held that Alabama prison officials violated the Eighth Amendment when they handcuffed a shirtless inmate to a hitching post for seven hours, denied him bathroom breaks, and gave him water only once or twice, which resulted in sunburns and dehydration.⁷⁷¹ Is it not ironic that the Eighth Amendment protects inmates from second-hand smoke and gratuitous, day-long exposure to the hot sun yet allows states to deliberately kill prisoners?⁷⁷²

¶ 158 For now, the battle over America's death penalty will return—as it must—to legislatures across the country. Capital punishment opponents will have to continue to push for moratoriums and continue to expose all of the death penalty's many flaws. Wrongful convictions—such as those uncovered by Northwestern's Center on Wrongful Convictions⁷⁷³—must be better publicized so that the stories of the innocent who spent time on death row are not forgotten.⁷⁷⁴ The full extent of racial discrimination in the death penalty's administration—as found in study after study and recognized by the Supreme Court itself—must be brought to the public's attention.⁷⁷⁵ The arbitrary application of the death penalty—something that has not changed since Furman or, for that matter, since Beccaria's time—also must be highlighted,⁷⁷⁶ as must the enormous financial costs of the death penalty. Dollars now spent on pursuing the death penalty could be better spent to prevent crime, to educate our children, and to further public safety in our communities in concrete ways.⁷⁷⁷ Finally, the emotional toll that executions exact on judges and jurors, as well as on prison guards and executioners, must be brought to light.⁷⁷⁸

¶ 159 As a society, we certainly do not hold up executioners—those who deliver the deadly intravenous drugs at lethal injections—as role models for our children. Why? Because what executioners do—kill people who are strapped down on gurneys—is so undignified, so uncivilized. Even while authorizing them, those most responsible for executions like to keep a safe, respectable distance from them. Neither governors nor federal judges, for example, ever pull the switch or push the buttons that end a person's life, as that would be far too unseemly. Instead, legislators, governors, and judges direct prison guards—whose identities are protected⁷⁷⁹—to carry out executions, something that few people would want to do themselves.⁷⁸⁰ American parents may dream of their children going to college, becoming doctors or lawyers or maybe even growing up to be President one day, but I suspect no mothers or fathers want their children to grow up to be executioners.

¶ 160 Because we let it, the gears of America's death penalty machine thus grind on, churning out execution after execution.⁷⁸¹ And because nothing is done to stop them, executions continue to take place using execution equipment supplied by the likes of Fred Leuchter, a Holocaust denier and designer of execution machines who was found to have practiced engineering without a license.⁷⁸² Meanwhile, the men and women tasked with killing killers suffer headaches, loss of sleep and recurring nightmares, even debilitating mental breakdowns after they perform the ugly work asked of them.⁷⁸³

¶ 161 Everywhere the death penalty is still in use, executioners are left to grapple with what they do—and with what they have done. In Uganda, a prison official who oversaw what he called a "debasing and dehumanizing" execution vowed to never attend one again, saying he did not sleep for two days after witnessing it, and that it was "particularly unnerving" to have to command others to carry it out because—as he attested in his affidavit—"my conscience tells me that killing is wrong."⁷⁸⁴ Executioners in the United States have also expressed qualms or deep personal reservations about what they do, with many coming to oppose executions altogether.⁷⁸⁵ For example, Jeanne Woodford—San Quentin's former warden—wrote that she "came to believe that the death penalty should be replaced with life without the possibility of parole." "To take a life in order to prove how much we value another life does not strengthen our society," she explained, saying that the death penalty "devalues our very being and detracts crucial resources from programs that could truly make our communities safer."⁷⁸⁶

¶ 162 Over two centuries ago, Beccaria himself recognized the ambivalence ordinary citizens feel towards executioners. "What are the sentiments of each individual regarding the death penalty?" Beccaria asked. "We may read them," he offered, "in the attitudes of indignation and contempt with which everyone views the hangman, who is, to be sure, an innocent executor of the public will."⁷⁸⁷ Lawyers—who keep executioners in business—would be well advised to take a cue from what is already happening in the medical profession. Physicians—who once played prominent roles at executions, standing by to pronounce the hour and minute of an inmate's death—now regularly refuse to participate.⁷⁸⁸ Following the Hippocratic Oath,⁷⁸⁹ the American Medical Association considers it an ethical violation for doctors to take part in these rituals.⁷⁹⁰ How long, one wonders, will it take for judges and lawyers to follow suit? Why, after all, should members of the bar have to advocate that other human beings die as part of their jobs?

¶ 163 In the eighteenth century, the death penalty was often used in place of imprisonment—and to prevent anarchy or revolution. Whatever rationales existed in Beccaria's day for the death penalty's use, however, no longer apply in the modern era. In Beccaria's time, well-developed prison systems to incarcerate criminals for long periods of time did not exist.⁷⁹¹ In contrast, the United States now has multiple maximum-security prisons capable of housing murderers, terrorists and other violent offenders. Likewise, whereas political instability and revolutions were extremely common in the eighteenth century, the United States is now a stable, well-developed democracy, the exact opposite of a country at risk of falling into a state of anarchy. Thus, executions are unnecessary and unwarranted in this day and age—a time in which we all share a heightened awareness of the concepts of human dignity and human rights.

¶ 164 The heinous crimes committed by the occupants of America's death rows—comprised mostly of men who grew up learning that violence and abuse was the way to solve problems⁷⁹²—are unspeakable. These murderers have, in cold blood, killed another human being, sometimes more than one. And the manner in which they have done so—with semi-automatic assault rifles or sawed-off shotguns, with switchblades or scissors, with rat poison or their own bare hands—never ceases to shock and offend our collective sensibilities and humanity.⁷⁹³ One need only read judicial opinions in homicide cases—in particular, the portions recounting the facts of brutal, cold-blooded murders—to know the horror of any murder.

¶ 165 The people we execute are killers, to be sure—sometimes even grisly serial killers whose horrendous crimes have claimed multiple lives.⁷⁹⁴ But convicted murderers are also deeply troubled people who have often suffered unspeakable acts of child abuse⁷⁹⁵—horrific abuse that is well-documented.⁷⁹⁶ Those who end up on death row have so frequently suffered severe physical or sexual abuse⁷⁹⁷ that the profound abuse found in the ranks of death row inmates almost qualifies as a cliche.⁷⁹⁸ One study of fourteen juveniles on death row found twelve had been "brutally" abused and five had been sodomized by older family members.⁷⁹⁹ Frontal lobe dysfunction and other disorders are common, with clinicians routinely identifying child abuse and traumatic brain injuries.⁸⁰⁰ Once studied, the disturbing backgrounds of death row inmates give added force to the memorable lines of the poet W. H. Auden: I and the public know / What all schoolchildren learn / Those to whom evil is done / Do evil in return.⁸⁰¹

¶ 166 Indeed, as a class, killers are often drug addicts and alcoholics,⁸⁰² poor and mostly uneducated,⁸⁰³ and often suffer from head injuries and brain damage.⁸⁰⁴ Many are mentally retarded,⁸⁰⁵ homeless,⁸⁰⁶ illiterate,⁸⁰⁷ exhibit suicidal tendencies,⁸⁰⁸ have profound depression or suffer from debilitating diseases like paranoid schizophrenia,⁸⁰⁹ Post-Traumatic Stress Disorder (PTSD)⁸¹⁰ or other severe mental illnesses.⁸¹¹ Given their backgrounds, perhaps it should come as no surprise that many death row inmates engage in violent behavior or even go insane.⁸¹²

¶ 167 Many death row inmates, in the depths of despair and having previously attempted to kill themselves, formally abandon their appeals and "volunteer" to die, leading to a bizarre form of state-assisted suicide.⁸¹³ One man, David Rice, was actually sentenced to death in absentia—that is, not in the jury's presence—after he ingested a nicotine drink brewed from cigarettes and had to be hospitalized.⁸¹⁴ In other cases, intermittently insane death-row inmates are forcibly medicated solely for the purpose of making them mentally competent to be executed.⁸¹⁵ That is precisely what happened in 2003 when the Eighth Circuit, on a closely divided, six-to-five vote, approved the forcible medication and execution of Charles Singleton.⁸¹⁶

¶ 168 The personal histories of death row inmates stand in sharp contrast with the backgrounds of the Supreme Court Justices who sit in judgment in capital cases. The nine Justices were educated at renowned institutions of higher education, with Ivy League schools and diplomas galore. They received undergraduate degrees at Harvard College, Princeton University, Stanford University, Cornell University, Georgetown University, Holy Cross College, and The University of Chicago. They studied overseas at the London School of Economics, Oxford University, and the University of Fribourg in Switzerland. They earned law degrees from Harvard Law School, Yale Law School, Columbia Law School, and Northwestern University. Before joining the nation's highest court, they worked as judicial clerks, as corporate counsel, at major law firms or as law professors, and as high-level officials serving the U.S. Department of Justice, the U.S. Courts of Appeals, and the President.⁸¹⁷

¶ 169 It seems incongruous that judges with such respected pedigrees should spend their days donning black robes and deciding whether poor, overwhelmingly uneducated inmates, should live or die.⁸¹⁸ Isn't there something terribly amiss when such highly educated people spend their time parsing the lexicon of death, arguing over "special issues" and "aggravating" and "mitigating" factors,⁸¹⁹ as human lives—already shattered by abuse and poverty and prison life—literally hang in the balance? It goes without saying that murderers are sick people who have committed horrific acts. After all, if not for severe mental illness, why would they have acted the way they have? When our most respected figures, our governors and our state and federal judges, execute death warrants or cause the death penalty to be carried out, what does that say about our culture and society?⁸²⁰ And what does it say about our legal culture when four Supreme Court Justices—the number necessary for a grant of certiorari—agree to hear a death penalty case, only to have the execution go forward anyway because a fifth vote cannot be mustered to impose a stay until the appeal can be heard?⁸²¹

¶ 170 The use of the death penalty raises all kinds of moral and ethical questions. Should we derive any satisfaction from the fact that deranged people—and no doubt a few innocent ones—are being put to death on our behalf?⁸²² Or should we take any solace in the fact that we, in executing inmates, are stooping to the level of the killers themselves? And what about the stigma and pain society inflicts on the families of those we execute?⁸²³

¶ 171 Just as homicides inflict untold suffering on murder victims' families, the family members of death row inmates experience grief and anguish after an execution. In fact, relatives and friends of death row inmates—stigmatized and depressed by executions—are known to have committed suicide after executions.⁸²⁴ Given the mental distress caused by executions, perhaps it's time to ponder again the eighteenth-century words of Dr. James McHenry, a close friend of Dr. Benjamin Rush, who once said this in urging mercy for Pennsylvania mutineers: "Our national character can never be supported by a sacrifice of national humanity. I have always thought, and the history of all nations teach me that I am right that acts of mercy serve more to dignify and raise the character of a government than acts of blood."⁸²⁵

¶ 172 The last chapter of the abolition movement has yet to be written. Even after the Supreme Court's approval of lethal injection in Baze, the Eighth Amendment may yet prove instrumental in future challenges to the death penalty. If enough states were to do away with capital punishment, the Supreme Court could conceivably strike down the death penalty altogether—just as it has for certain categories of offenders, such as juveniles, the mentally retarded, those who did not take life, and the insane.⁸²⁶ Likewise, if American juries routinely stopped imposing death sentences, leaving just a small number of people sentenced to death each year, the Supreme Court might declare the death penalty unconstitutional because of how rarely it is inflicted.⁸²⁷ Given that the federal government and thirty-five states still have death penalty laws—and that death sentences are still being handed down, if only sporadically—it seems unlikely that a categorical ruling to that effect will be made anytime soon. But the future is hard to predict, and it is certainly within the realm of possibility that the nation's highest court will once again take up the issue of the death penalty's constitutionality.⁸²⁸

¶ 173 Some argue that the U.S. Constitution's text precludes the Supreme Court from ever declaring the death penalty unconstitutional.⁸²⁹ They argue that the Framers clearly contemplated the infliction of death as a punishment, as reflected in the language of the Bill of Rights.⁸³⁰ In particular, they cite the Constitution's use of the words "capital," "life," and "life or limb,"⁸³¹ saying those words lead to the inexorable conclusion that the death penalty itself is constitutional.⁸³²

¶ 174 Though some Founders, like Dr. Benjamin Rush, categorically opposed capital punishment, it is certainly true that in the late eighteenth century the death penalty was widely accepted in American life as a punishment for murder.⁸³³ However, people in the founding era also envisioned punishing people by cutting off ears and limbs—something no one today would argue is constitutionally permissible.⁸³⁴ If the state can no longer cut off body parts, as even the well-known originalist Robert Bork once conceded should not be done,⁸³⁵ why should the state be perpetually authorized to take life?⁸³⁶ In fact, given that the death penalty was authorized in America by numerous eighteenth-century laws, it would have been surprising had the Bill of Rights not guaranteed due process protections against the taking of "life," the state's ultimate sanction.

¶ 175 In fact, the Bill of Rights was put in place to protect individual rights, not to affirmatively deprive individuals of their property, their liberty or their lives. And the list of protected rights is impressive. The First Amendment protects the freedoms of religion, speech and the press and the right of people to assemble and petition for redress of grievances.⁸³⁷ The Second Amendment protects "the right of the people to keep and bear Arms,"⁸³⁸ and the Fourth Amendment protects against "unreasonable searches and seizures."⁸³⁹ The Fifth Amendment confers due process rights, requires grand jury indictments for certain crimes, and guards against double jeopardy, self-incrimination, and takings without just compensation.⁸⁴⁰ The Sixth Amendment guarantees speedy and public trials before impartial juries, the assistance of counsel, and confrontation and process rights.⁸⁴¹ The Seventh Amendment guarantees the right to trial by jury in certain cases,⁸⁴² and the Ninth and Tenth Amendments speak of rights "retained by the people"⁸⁴³ or "reserved to the States . . . or to the people."⁸⁴⁴

¶ 176 The Eighth Amendment—like all the others—is an integral part of the Bill of Rights that cannot be ignored by judges or legislators. Thus, if a fine is "excessive" or a punishment is found to be "cruel and unusual" it violates the Eighth Amendment and is unconstitutional—with no further analysis required. The Eighth Amendment plainly does not say that only those punishments deemed cruel and unusual in 1791 are prohibited. On the contrary, the Eighth Amendment uses common words like "excessive" and "cruel and unusual" that successive generations can interpret for themselves—something the Supreme Court itself has recognized in its decisions.⁸⁴⁵ Indeed, early American jurists routinely used the everyday words "cruel" and "unusual" in their judicial opinions⁸⁴⁶ just as legislators used—and continue to use—those words in legislation.⁸⁴⁷

¶ 177 In interpreting the Eighth Amendment, it is also important to keep in mind what else the Constitution does not say. The Constitution does not say that murderers or other criminals shall be punished by death,⁸⁴⁸ and it certainly does not say that capital punishment shall be deemed constitutional in perpetuity, regardless of how society may evolve and change.⁸⁴⁹ The Constitution and the Bill of Rights protect individual rights, they do not forever enshrine the death penalty in American law.⁸⁵⁰ In the end, it is for the Supreme Court Justices to decide—as their solemn oaths to uphold the Constitution require⁸⁵¹—whether death sentences constitute "cruel and unusual punishments."⁸⁵²

¶ 178 All of the powers granted in the Constitution—as every civics student learns—come from "We the People of the United States."⁸⁵³ That means, of course, that so long as death penalty laws exist, it is we, the American people, who are allowing executions to occur. But do we really want our government—the one we empower—to be killing in our names? In reality, doesn't the death penalty only demean us? In effect, doesn't the death penalty only bring us down to the level of killers? By allowing executions in our constitutional form of government, it is, after all, "We the People" who become the executioners—those dark, shadowy figures from the Dark Ages who have been shunned throughout history.⁸⁵⁴ Fortunately, with maximum-security prisons and life-without-parole statutes, we now have a viable alternative to executions—locking up violent offenders—that we can use.

¶ 179 America's death penalty, a vestige of harsh English criminal codes that no longer exist, has corrupted Eighth Amendment jurisprudence and become our national shame. Capital punishment laws, which gratuitously take life, are morally bankrupt, do nothing to further public safety, and only lessen America's credibility abroad when we talk about promoting human rights. There is, in fact, no persuasive scientific proof that executions deter violent crime more effectively than life-without-parole sentences.⁸⁵⁵ A few recent studies, roundly criticized for their methodologies, make wild and reckless claims that frequent executions deter homicidal acts and—in the words of the researchers—"save" lives.⁸⁵⁶ But such studies fail to consider the powerful deterrent effect of life-without-parole statutes and sentences.⁸⁵⁷

¶ 180 The "deterrence" hypothesis is particularly weak in the modern-day context in which capital punishment is administered. First, executions are now carried out in private—a change initiated by nineteenth-century American legislators who themselves found executions to be brutalizing.⁸⁵⁸ The publicity surrounding executions is thus reduced or, in some cases, almost non-existent. Second, only a tiny percentage of American murderers are ever executed, making the "deterrence" theory all the more implausible.⁸⁵⁹ It thus makes no sense to craft social policy and continue to put people to death on the basis of outlier studies purporting to find a greater deterrent effect for executions than for imprisonment.

¶ 181 Indeed, murderers are the exact opposite of rational actors, and the very fact that they have murdered people shows their utter lack of judgment. There is thus little reason to believe that poorly educated, hot-headed killers, who often suffer from brain damage and severe mental illnesses, ever rationally weigh the consequences of their actions—especially when drunk or on drugs, as they frequently are when they commit their crimes.⁸⁶⁰ Perhaps that explains why the vast majority of police chiefs and criminologists do not believe executions effectively deter murder.⁸⁶¹ Given the lack of credible evidence demonstrating any causal relationship between death sentences and lower murder rates, it seems rather Orwellian—to say the least—to contend that state-sanctioned killing "saves" lives.⁸⁶²

¶ 182 In actuality, death sentences have become a burdensome distraction—and at times, even an outright impediment—to law enforcement efforts. The death penalty saps the resources of America's criminal justice system, and at bottom, death sentences are only corrosive of our efforts to build a more just and less violent society. As Justice Louis Brandeis once wrote: "Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen."⁸⁶³ "Our government," he explained, "is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."⁸⁶⁴

¶ 183 In pondering what comes next in the centuries-old death penalty debate, Americans should not delude themselves as to their own role in executions. Neither should we, as Americans, turn a blind eye to what is happening in our nation's prisons or to what is at stake from a moral standpoint. It is our nation's citizenry who, as their own governors, bear collective responsibility for the delivery of deadly chemicals to inmates strapped down on prison gurneys. Executioners may do the work, perhaps reluctantly or in conflict with their own consciences, but they do so only in accordance with statutes, death warrants, and court orders. Because the people's representatives pass those laws and issue those directives, it is not the laws or the pieces of paper that kill. Instead, it is we as American citizens who, through our authorized agents, the executioners, bear responsibility for such killings. As George Bernard Shaw, Great Britain's Nobel Laureate in Literature, once remarked: "Criminals do not die by the hands of the law. They die by the hands of other men."⁸⁶⁵

¶ 184 The Founding Fathers foresaw a future—for themselves and for future generations—where Americans would not only govern themselves, but would live in an enlightened, prosperous, and civilized society, where cruel and barbarous conditions would not be tolerated. The Founders—who began their struggle for human rights by signing the Declaration of Independence⁸⁶⁶—knew they would have to fight to realize their vision, but that it was one worth fighting for.⁸⁶⁷ The key to that vision was—and remains—an informed citizenry. As James Madison so eloquently articulated generations ago: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."⁸⁶⁸

¶ 185 Ideally, the standards and mores of Americans will evolve to the point where death sentences come to be abhorred as much as lynchings are now. Until that happens, however, the lofty language in the Universal Declaration of Human Rights⁸⁶⁹ about the "right to life"—as well as similar aspirational words from the Declaration of Independence⁸⁷⁰—will be mere words, nothing more than a goal to be sought after, and certainly not a reality achieved. Wouldn't it be nice to see those high-minded words matched with deeds, to see that inspiring language become fully operational? If executions were at long last banned, it would finally fulfill the dreams of those Enlightenment thinkers and drafters of the Universal Declaration of Human Rights who either fought for the death penalty's abolition or foresaw the end of executions.⁸⁷¹

¶ 186 If history is any indication, American executions are destined to disappear. In fact, in assessing the abolition movement's prospects of success, it may be instructive to recall another hard-fought crusade: the anti-lynching movement.⁸⁷² Until the NAACP launched a movement to end them, extra-judicial lynchings in America were common.⁸⁷³ Described as "an established custom" by the end of the colonial period,⁸⁷⁴ such lawless spectacles—often fueled by racism and perpetrated by groups like the Ku Klux Klan—once pockmarked the American landscape and often took place before unruly mobs.⁸⁷⁵ Lynch mobs and other acts of "frontier justice"—often targeted at blacks⁸⁷⁶—grabbed newspaper headlines in the South⁸⁷⁷ and West⁸⁷⁸ and even as far north as Minnesota⁸⁷⁹ well into the twentieth century, with 4743 lynchings recorded nationwide from 1882 to 1968.⁸⁸⁰

¶ 187 Although large segments of the American public paid little attention to the evils of lynching in the early nineteenth century,⁸⁸¹ as the anti-lynching movement gained steam, public attitudes changed and progress was gradually made. Today, of course, lynchings are a thing of the past and lynching is universally viewed with disdain and horror.⁸⁸² So long ago did this sad chapter in American history occur that lynching no longer draws the attention of social activists, but rather of historians.⁸⁸³ Indeed, a widely accepted legal norm against lynchings—or any criminal proceedings dominated by a mob atmosphere—already exists in American law.⁸⁸⁴ Change may come slowly or incrementally, as it did in Beccaria's day⁸⁸⁵ or in the case of the anti-lynching movement, but one thing is for certain: change comes.⁸⁸⁶ As Martin Luther King Jr. so eloquently pointed out: "The moral arc of the universe is long, but it bends towards justice."⁸⁸⁷

XI. Conclusion

¶ 188 The death penalty has been debated for centuries, with the first recorded parliamentary debate occurring in 427 B.C. in Athens, Greece.⁸⁸⁸ Cesare Beccaria, the great Italian criminologist, made the first fully formulated arguments against capital punishment and set the modern abolition movement in motion. Though Beccaria authored On Crimes and Punishments in his twenties, his vision was unfulfilled in his lifetime—and it was left to future generations to pick up the torch where he left off. In America, the Founding Fathers were especially intrigued by Beccaria's ideas, and many of them came to oppose executions, either altogether or for certain categories of offenders. Though they narrowed the death penalty's use and often expressed ambivalence towards or deep revulsion for executions, they, too, were unable to slay the death penalty beast. Instead, in drafting the Constitution and the Bill of Rights, they deliberately left it to future generations to decide what constitutes "cruel and unusual" punishment. The choice we face today—whether to retain capital punishment or to abolish it—was thus a choice our forefathers intended for us to make unrestrained by eighteenth-century mores.

¶ 189 Progress toward abolition has been slow until recently. Yet the anti-death penalty movement is now gathering renewed momentum and strength—rapidly in the international community and slowly but surely in American communities.⁸⁸⁹ The U.N. Secretary-General has noted "a considerable shift towards the abolition of the death penalty both de jure and in practice."⁸⁹⁰ That trend is accelerating as new scientific tools, like DNA evidence, prove the law's fallibility; the death penalty is now no longer even authorized by international war crimes tribunals.⁸⁹¹ With U.S. death sentences and executions down in numbers, the latest public opinion polls show that Americans are increasingly divided and ambivalent about capital punishment.⁸⁹²

¶ 190 As the abolition movement Beccaria began braces for its 250th anniversary, abolitionists must continue to agitate and seek to re-frame the death penalty debate. As the deterrence debate rages on,⁸⁹³ abolitionists must convince the American public that advocating life-without-parole sentences for society's worst offenders is not synonymous with being soft on crime.⁸⁹⁴ As the moral and philosophical debate continues, abolitionists must convince the public that the death penalty is, fundamentally, a human rights issue and that the death penalty's abolition must be considered in that context and in the context of Martin Luther King Jr.'s non-violence movement.⁸⁹⁵ Even as legal arguments about the Eighth Amendment are made by lawyers and academics,⁸⁹⁶ abolitionists must fight on in the legislative arena and mount challenges to the discriminatory exclusion from juries of those who oppose capital punishment.⁸⁹⁷

¶ 191 Juries provide a unique window into societal standards because they make real decisions in real cases. Citizen-jurors do not have the luxury of answering a series of abstract questions about the death penalty—as some Americans do in response to telephone pollsters.⁸⁹⁸ Instead, they are asked by our legal system to make gut-wrenching, life-and-death decisions in concrete cases, to decide whether a particular man or woman, with a name and a family, should live or die.⁸⁹⁹ Polling results may move up and down, whether in response to a horrific crime or to a series of DNA exonerations, but jurors in capital cases confront the most serious moral questions imaginable when filling out a verdict form. Since jury verdicts are such a crucial aspect of the Supreme Court's Eighth Amendment analysis in capital litigation, the Court deserves to get an accurate picture of how randomly selected jurors in American society really feel about executions.⁹⁰⁰

¶ 192 A snapshot of jury decisions from randomly selected juries (as opposed to "death-qualified" ones) would reveal a sharply divided public deeply conflicted about executions.⁹⁰¹ Given the unanimity requirement for jury verdicts, many truly representative juries would be unable to agree on whether a death sentence should be imposed, thus resulting in more life sentences.⁹⁰² That would be very useful information for the Supreme Court to have as it hears future Eighth Amendment cases and makes judgments about the death penalty's constitutionality.⁹⁰³ Thus, to get an accurate, unbiased picture of the views of American juries, the Supreme Court should no longer allow death penalty opponents to be excluded from jury service.⁹⁰⁴

¶ 193 In reflecting on just how far the anti-death penalty movement has come, abolitionists should take solace and a measure of pride in what has been accomplished so far. The death penalty's long, sordid history is one marked by successive restrictions on its use—a pattern that continues today. No longer are petty thefts or non-homicidal crimes punished by death in the United States, and no longer does American society countenance the execution of juveniles, the insane or the mentally retarded.

¶ 194 In fact, such modern-day developments in criminal law would hardly come as a surprise to the Framers. Enlightenment thinkers, such as Thomas Jefferson, James Madison, and Thomas Paine, recognized that all societies evolve and must think for themselves, and that to lock in future generations to eighteenth-century mores and ethics would be absurd.⁹⁰⁵ For example, Jefferson foresaw that the lex talionis doctrine "will be revolting to the humanized feelings of modern times." "An eye for an eye, and a hand for a hand," he wrote in 1778, "will exhibit spectacles in execution whose moral effect would be questionable."⁹⁰⁶ Other Founding Fathers, such as James Wilson, also looked to future generations to make more enlightened social policy.⁹⁰⁷ It is no accident, then, that the Constitution itself explicitly refers to future generations by referencing "our Posterity" in its preamble.⁹⁰⁸

¶ 195 Even the Supreme Court—which still sanctions executions—has clearly indicated that any further expansion of America's death penalty is intolerable.⁹⁰⁹ That signal—coming in 2008 in the Kennedy case—is significant, as is the particular language from that decision. "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment," the Court held, "means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application."⁹¹⁰ As the Court emphasized: "Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime."⁹¹¹ Though the Court continues to allow executions to occur, it appears that there will be no turning back of the clock.

¶ 196 The death penalty has been abolished at different times in different places for different reasons. Sometimes a botched execution prompts soul-searching and a re-examination of State policy.⁹¹² In my home state, the State of Minnesota, the last execution to be carried out was the bungled hanging of William Williams, who dangled on a noose for nearly fifteen minutes before dying of strangulation. The sheriff had miscalculated the length of the rope, requiring it to be manually hoisted up by his deputies as Williams hung in the air.⁹¹³ In other instances, the execution of innocent men has prompted reform.⁹¹⁴ In England, for example, the death penalty was abolished in 1956 after a series of cases focused public attention on wrongful convictions.⁹¹⁵

¶ 197 What happened in Great Britain highlights what could happen in the United States. In one case, Timothy Evans was hanged for murder in 1950, but another man, John Halliday Christie, confessed to the murder three years later.⁹¹⁶ A mentally disabled teenager, Derek Bentley, was also hanged in 1953 for killing a police officer even though another teen had actually been the one to pull the trigger.⁹¹⁷ Because capital murder convictions often rely on the testimony of eyewitnesses or jailhouse informants whose testimony can be unreliable, wrongful convictions in the United States remain a distinct, ever-present possibility.⁹¹⁸

¶ 198 When abolition occurs, it is never because guilty criminals are particularly sympathetic figures. They are not—and never will be—because their murderous acts are so vile and reprehensible.⁹¹⁹ On the contrary, abolition occurs because civic leaders and ordinary citizens come to see that the death penalty debases and demeans those who inflict it.⁹²⁰ A society that bars executions has decided that killing deranged and mentally ill criminals who are already safely behind bars is nothing short of senseless barbarism.⁹²¹

¶ 199 As Americans, we should continue studying criminals for clues as to why they do what they do so that we can prevent crimes in the future. Already, we have learned a great deal about brain dysfunction and head injuries and frontal-lobe damage in death row inmates.⁹²² Mental health experts are now a staple at capital trials,⁹²³ and a growing body of scientific literature exists on the connection between damage to the frontal lobes of the brain and violent criminality. With Super Max prisons and life-without-parole sentences now readily available, however, it is clearer than ever that the bizarre ritual of state-sanctioned executions should be relegated to the past.⁹²⁴ No longer should the law require lawyers to plead for their clients' lives. And no longer should the law permit human hands to sign death warrants or load syringes full of lethal chemicals deliberately calculated to take human life.

¶ 200 The United States has yet to abolish capital punishment, but it only seems a matter of time before the American death penalty goes the way of the stocks, the pillory, and the whipping post.⁹²⁵ Perhaps a single event, such as the execution of an innocent man or woman, will trigger abolition, or perhaps the moratorium movement will take firmer hold and U.S. executions will simply wither away as lynchings did decades ago.⁹²⁶ As it is, many U.S. locales no longer use capital punishment,⁹²⁷ either because of weighty moral concerns or for practical public policy reasons. Some locales, for example, do not seek death sentences because of the views of a particular prosecutor or the prohibitive cost of capital litigation,⁹²⁸ making the geographic disparity associated with capital punishment all the more stark with each passing year.⁹²⁹ While some prosecutors seek the death penalty as often as the law will allow, others never seek it, making the locale of the crime—and not the crime itself—determinative as to whether a death sentence is sought.⁹³⁰

¶ 201 Down the road, the Supreme Court—using the Eighth Amendment—might declare executions unconstitutional. That may not happen soon, but if the death penalty's use continues to decline—leaving only a handful of States or counties that inflict it—the Court might feel compelled to outlaw executions altogether, finding death sentences too arbitrarily imposed to remain legal.⁹³¹ Or perhaps the death penalty—as one scholar suggests—will "fade slowly" away, going out "with a whimper and not a bang."⁹³² Whatever the scenario, it seems inevitable that human progress will eventually claim capital punishment just as it did lynching.

¶ 202 In this Internet-driven era, human rights activism has proliferated and abolitionists have more and more tools at their disposal with which to build stronger networks and fight for social justice.⁹³³ As the death penalty's many flaws are exposed by NGOs, courts, and individual activists, the death penalty's demise draws closer and closer. In fact, often all it takes is one particularly memorable event or blunder—such as Virginia Governor George Allen's infamous use of the word "Macaca" to derogatorily describe one of his opponent's staffers—for a news story to suddenly be everywhere, to "go viral."⁹³⁴ One commentator has aptly spoken of a similar "snowball effect" that followed Justice Blackmun's dissent in Callins v. Collins.⁹³⁵ Soon after that decision, the ABA sought a moratorium on executions and Governor Ryan imposed one, leading other states to consider the same thing.⁹³⁶

¶ 203 In The Tipping Point, best-selling author Malcolm Gladwell describes dramatic moments "when everything can change all at once."⁹³⁷ The question that arises in the capital punishment context is whether Americans are on the cusp of just such a moment. Will there be an event, or perhaps a series of events, that lead to that magical point-of-no-return and the death penalty's abolition? Will Americans be horrified by a wrongful execution? Or will juries just stop sentencing people to death to such an extent that any death sentence that is handed out looks like a freakish outlier? Anything might happen, though one thing remains clear: In retaining capital punishment, America has, through its silence and inaction, chosen a path that requires the continued employment of executioners—and that lessens us all by the justice system's resort to violence, the very thing that we condemn in killers.

¶ 204 Already, international law is trending heavily towards abolition, and the swiftly moving current of change has already swept many nations into the abolitionist column. America's death penalty will no doubt eventually collapse under the heavy weight of all of its intractable problems. Over thirty-five years after Furman, America's death penalty is still as arbitrary and capricious as ever. Who gets the death penalty is often more a function of poverty, geography, or the quality of the defense lawyer⁹³⁸ than it is a function of the nature of the crime or anything having to do with logic or rationality. And nearly 250 years after the publication of Beccaria's seminal work, the operation of the death penalty is still rife with wrongful death sentences and widespread racial discrimination and abuse.⁹³⁹ In executing people, America now stands in the dubious company of some of the worst human rights offenders, including the People's Republic of China—a country that has used executions for over 5000 years to terrorize its citizens and crack down on political dissidents.⁹⁴⁰

¶ 205 I have no doubt that a day will come—if not in this generation, then perhaps in the next—when the death penalty will be abolished in the United States and be held to violate international law.⁹⁴¹ The climb will be steep because capital punishment is so deeply engrained in American life and because the urge for revenge—to see a killer's life cut short—runs so deep for so many people. As Benjamin Cardozo—who sought the death penalty's demise—told a group of New York physicians back in 1928: "The thirst for vengeance is a very real, even if a hideous, thing; and states may not ignore it till humanity has been raised to greater heights than any that have yet been scaled in all the long ages of struggle and ascent."⁹⁴² Those heights were not reached during the Enlightenment or in the twentieth century, and for now they still remain a somewhat distant summit in the annals of American law.

¶ 206 But the world community—including the United States—has already acted in concert to ratify U.N. conventions barring genocide, slavery, torture, and other forms of cruel and degrading punishments.⁹⁴³ The death penalty's abolition would be yet another step in the direction of a more civilized and humane world and would no doubt please Enlightenment thinkers such as Cesare Beccaria, Thomas Jefferson and Dr. Benjamin Rush, if only from the grave.⁹⁴⁴ Already, modern-day Italians—the descendents of Beccaria's fellow citizens—have lit up the Coliseum in Rome, once the venue of horrific killings, to honor countries banning executions and to pay homage to the moratorium and commutation of death sentences that took place in Illinois.⁹⁴⁵

¶ 207 As Americans recall the publication of On Crimes and Punishments, Beccaria's words—taken to heart by so many of America's Founding Fathers—are just as relevant today as they were almost 250 years ago. The future is impossible to predict, but as abolitionists everywhere look back—and simultaneously look ahead—there is much reason to hope and continue to press for reform even though America's last execution is still over the horizon. The world's anti-death penalty movement continues apace—as it has for nearly two and a half centuries—and progress, if sometimes painfully slow, is still being made. News stories about capital punishment have proliferated exponentially in just the past few years,⁹⁴⁶ and there is every reason to believe that America's death penalty may finally be in its death throes. I can only say that, when the United States of America finally musters up the humanity, fortitude, and courage to do away with state-sanctioned killing, it will be a glorious sight indeed to behold the Roman Coliseum all lit up once more in bright, golden light, no doubt in Beccaria's honor.

ENDNOTES

^* Visiting Associate Professor of Law, The George Washington University Law School, Washington, D.C. The author has taught a death penalty seminar since 1998, first as an adjunct professor at the University of Minnesota Law School and later at The George Washington University Law School. The author extends a special thanks to Dean Frederick Lawrence for making available a summer research grant; research assistants Michael Ansell, Jonathan Auerbach and Mark Taticchi; his many former students for their thoughtful in-class participation; and the guest speakers who shared their own insights—both in class and in their writings—over the years: the late Hon. Donald P. Lay of the U.S. Court of Appeals for the Eighth Circuit; Sandra Babcock and Joseph Margulies at the Northwestern University School of Law; Robin Maher, Director of the ABA's Death Penalty Representation Project; Richard Dieter, Executive Director of the Death Penalty Information Center; David Lillehaug, former U.S. Attorney for the District of Minnesota; Susan Karamanian, GW's Associate Dean for International and Comparative Legal Studies; the Hon. Bruce Peterson; and Tom Fraser, John Getsinger, Andre Hanson, Tom Johnson, Steven Kaplan, Steve Pincus, Tim Rank, Jim Volling and Steve Wells—all lawyers in private practice who have worked on capital cases. The author also thanks the Journal's staff, especially George Balgobin, Jason Britt, Sarah Hoffman, Amanda Inskeep, David King, Lauren Matecki, Michelle Olson, and Heather Renwick, for their invaluable editorial assistance. The views expressed here are solely those of the author.

^** Letter from Thomas Jefferson to Samuel Kercheval, July 12, 1816. This excerpt from Jefferson's letter is one of four inscriptions chiseled in stone at the Jefferson Memorial in Washington, D.C.

^*** Benjamin N. Cardozo, Law and Literature 93-94 (1931). Cardozo made this prediction in 1931, a year before his appointment to the Supreme Court. Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 Or. L. Rev. 97, 97 (2002).

¹ Cesare Beccaria, On Crimes and Punishments and Other Writings xxxi (Richard Bellamy ed., Richard Davies trans., 1995) [hereinafter Beccaria (Bellamy ed.)]; see also Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform 5 (1973) ("Born in Milan on March 15, 1738, he was the first son of aristocratic though not very wealthy parents, Giovanni Saverio and Maria Beccaria. His full name and title were Marchese Cesare Beccaria Bonesana."). The first Italian edition of Beccaria's book—a slender volume coming in at slightly more than 100 pages—was published by Aubert of Leghorn and was received in Milan on July 16, 1764. Id. at 20. The first English translation of the book became available in the United States in the 1770s. See id. at 43 n.10; Capital Punishment in the United States: A Documentary History 4 (Bryan Vila & Cynthia Morris, eds.,1997); Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865, at 52 (1989). By the end of the eighteenth century approximately sixty editions of On Crimes and Punishments had been published. Maestro, supra, at 43. A more complete history of Beccaria's book—and additional information about the editions and translations of it—can be found elsewhere. See, e.g., Beccaria (Bellamy ed.) supra, at xli-xliv, xlvi-xlvii; Stuart Banner, The Death Penalty: An American History 91 (2002).

There are multiple English translations of Beccaria's On Crimes and Punishments. Cesare Beccaria, On Crimes and Punishments and Other Writings xxx (Aaron Thomas, ed., Aaron Thomas & Jeremy Parzen, trans., 2008) [hereineafter Beccaria (Thomas ed.)]. I have chosen to utilize the most recent one, a translation published in 2008 by the University of Toronto Press as part of the Lorenzo Da Ponte Italian library series. Andre Morellet completed a French translation of the book in 1765, and German, Swedish, Russian, Spanish and early English translations were often based on that French translation, which radically reorganized Beccaria's book and transposed whole paragraphs and sentences. Id. at xxvii-xxx; Maestro, supra, at 40-43. The French translation of Beccaria's book, prepared by Morellet, was not even sent to Beccaria until after its publication in France. Beccaria (Bellamy ed.), supra, at 119-20 n.4; Maestro, supra, at 40. What has been described as the "authoritative Italian edition" of Dei delitti e delle pene—one that Beccaria himself had a hand in revising—came out in 1766 as Beccaria's fame was growing around the globe. Aside from the translation utilized here, only two other English translations of that authoritative Italian text exist. Beccaria, (Thomas ed.), supra, at xxx & n.48 (citing Beccaria (Bellamy ed.), supra & Cesare Beccaria, On Crimes and Punishments (David Young trans., 1986) [hereineafter Beccaria (Young trans.)]).

² Beccaria (Thomas ed.), supra note 1, at 17. Beccaria believed that crimes are "distributed across a scale that moves imperceptibly by diminishing degrees from the highest to the lowest" and that "[i]f geometry were applicable to the infinite and obscure combinations of human actions, there would be a corresponding scale of punishments, descending from the most severe to the mildest." Id. at 18.

³See William A. Schabas, The Abolition of the Death Penalty in International Law 5 (3d ed. 2002); Hugo Adam Bedau, Interpreting the Eighth Amendment: Principled vs. Populist Strategies, 13 T.M. Cooley L. Rev. 789, 805 (1996) ("The original impetus to abolish the death penalty two hundred years ago in Europe was fueled by Cesare Beccaria's little book, On Crimes and Punishments, and by Jeremy Bentham in England.").

The term "abolitionist" is commonly used to refer to opponents of slavery or to opponents of capital punishment. See Krista L. Patterson, Acculturation and the Development of Death Penalty Doctrine in the United States, 55 Duke L.J. 1217, 1226 (2006). It is used here to refer to anti-death penalty advocates.

The connection between opponents of slavery and the death penalty is a long-standing one. Anti-slavery activists, such as Frederick Douglass, often also opposed capital punishment. See William S. McFeely, Frederick Douglass 189 (1991); Frederick Douglass, The Life and Writings of Frederick Douglass 418 (Phillip S. Foner, ed., 1950); Dr. James J. Megivern, Our National Shame: The Death Penalty and the Disuse of Clemency, 28 Cap. U. L. Rev. 595, 595-96 (2000) (citing 3 The Frederick Douglass Papers 242-48 (John W. Blassingame ed., 1979)).

⁴ Beccaria (Thomas ed.), supra note 1, at 26 (italics in original).

⁹ Id. at 52. Similar views were also expressed by Dr. Benjamin Rush, an early American physician who believed that "[t]he punishment of death has been proved to be contrary to the order and happiness of society." Steven H. Jupiter, Constitution Notwithstanding: The Political Illegitimacy of the Death Penalty in American Democracy, 23 Fordham Urb. L.J. 437, 478 n.198 (1996). Dr. Rush wrote: "Every man possesses an absolute power over his own liberty and property, but not over his own life. When he becomes a member of political society, he commits the disposal of his liberty and property to his fellow citizens; but as he has no right to dispose of his life, he cannot commit the power over it to any body of men. To take away life, therefore, for any crime, is a violation of the first political compact." Id.

¹⁰ Beccaria (Thomas ed.), supra note 1, at 61. The concept of "natural rights" was, of course, well-known to the Framers of the U.S. Constitution. See Terry Brennan, Natural Rights and the Constitution: The Original "Original Intent", 15 Harv. J.L. & Pub. Pol'y 965, 971-74 (1992).

¹¹ Beccaria (Thomas ed.), supra note 1, at 61.

¹²Id. at 55. Dr. Benjamin Rush—Thomas Jefferson's friend and correspondent—felt much the same way, saying capital punishment "lessens the horror of taking away human life" and thus "tends to multiply murders." Banner, supra note 1, at 104.

¹³ Beccaria (Thomas ed.), supra note 1, at 26.

¹⁶ Christoph Burchard, Torture in the Jurisprudence of the Ad Hoc Tribunals, 6 J. Int'l Crim. Just. 159, 160 (2008); see also Paola Gaeta, When Is the Involvement of State Officials a Requirement for the Crime of Torture?, 6 J. Int'l Crim. Just. 183 (2008) (discussing the definition of torture).

¹⁷See Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 17 B.C. Int'l & Comp. L. Rev. 275, 281-82 (1994).

¹⁸ Beccaria (Thomas ed.), supra note 1, at 32 (italics in original).

²¹See Gxnter Frankenberg, Torture and Taboo: An Essay Comparing Paradigms of Organized Cruelty, 56 Am. J. Comp. L. 403, 413 (2008); Parker B. Potter, Jr., Antipodal Invective: A Field Guide to Kangaroos in American Courtrooms, 39 Akron L. Rev. 73, 83 (2006); Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 128 U. Pa. L. Rev. 989, 1031 (1978). For graphic descriptions of torture and executions in Europe in the 1700s, see Michel Foucault, Discipline & Punish: The Birth of the Prison 3-6, 12-13 (Alan Sheridan trans., 1995); Maestro, supra note 1, at 14-15.

²² Beccaria (Thomas ed.), supra note 1, at xxi, 3; Beccaria (Bellamy ed.), supra note 1, at xxxiii, 1. The frontispiece to the third edition of Dei delitti e delle pene, published in 1765, was a copperplate engraving based on a sketch Beccaria provided. It depicts a figure, Justice, shunning an executioner who is carrying a sword and axe in his right hand and who is trying to hand Justice a cluster of severed heads with his outstretched left hand. Justice's gaze is instead transfixed on a pile of prisoner's shackles and worker's tools—the instruments symbolizing imprisonment and hard labor. Beccaria (Thomas ed.), supra note 1, at 2.

²³ Isaac A. Linnartz, The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the U.N. Convention Against Torture, 57 Duke L.J. 1485, 1491-93 (2008).

²⁴See Beccaria (Thomas ed.), supra note 1, at 173 n.10; Heikki Pihlajamäki, The Painful Question: The Fate of Judicial Torture in Early Modern Sweden, 25 Law & Hist. Rev. 557, 574 (2007).

²⁵ Frederick II became an admirer of Beccaria. In a September 5, 1777 letter to Voltaire, Frederick II lauded Beccaria, writing: "Beccaria has left nothing to glean after him; we need only to follow what he has so wisely indicated." Maestro, supra note 1, at 134.

²⁶ Maestro, supra note 1, at 18-19, 126-27, 136; Beccaria (Thomas ed.), supra note 1, at 173 n.11; Frankenberg, supra note 21, at 408.

²⁷ Beccaria's book greatly influenced the debate over the use of torture—what Beccaria called "a cruelty condoned by custom in most nations." Beccaria (Thomas ed.), supra note 1, at 32. Most significantly, his book influenced Sonnenfels to fight for the abolition of torture and the death penalty—and inspired him to write a book of his own, On the Abolition of Torture, that was published in 1775.

²⁸ Beccaria (Thomas ed.), supra note 1, at 57.

²⁹ C.H.S. Jayawardene, The Death Penalty in Ceylon, 3 Ceylon J. Hist. Soc. Stud. 166, 185 (1960).

³⁰ David T. Johnson, Japan's Secretive Death Penalty Policy: Contours, Origins, Justifications, and Meanings, 7 Asian-Pac. L. & Pol'y J. 62 n.27 (2006) (citing Damien P. Horigan, Of Compassion and Capital Punishment: A Buddhist Perspective on the Death Penalty, 41 Am. J. of Juris. 271, 283-85 (1996)).

³¹ Taylor Young Hong, Televised Executions and Restoring Accountability to the Death Penalty Debate, 29 Colum. Hum. Rts. L. Rev. 787, 794 n.38 (1998) (reviewing John D. Bessler, Death in the Dark: Midnight Executions in America (1997) [hereinafter Bessler, Death in the Dark] (citation omitted)).

³² Charles Benn, China's Golden Age: Everyday Life in the Tang Dynasty 8 (2002).

³³See Beccaria (Thomas ed.), supra note 1, at 174 n.15; Andrew A. Gentes, Exile to Siberia, 1590-1822: Corporeal Commodification and Administrative Systematization in Russia 51, 78 (2008); Maria Kiriakova, The Death Penalty in Russia 1917-2000: A Bibliographic Survey of English Language Writings, 30 Int'l J. Legal Info. 482, 486-87 (2002). Though Beccaria praised the Russian empress as providing "the leaders of all peoples an illustrious example worth at least as much as many conquests bought with the blood of her country's sons," see Beccaria (Thomas ed.), supra note 1, at 52, the "reality"—as one commentator wrote—was that Russia's death penalty "was replaced by terribly cruel punishments which often resulted in the convict's death." Id. at 174 n.15. As that author writes: "In fact, convicts were beaten with the knut, their nostrils were torn, and then their forehead and cheeks were branded with an iron. Many died and those who survived were usually deported to do forced labour in Siberia." Id.

³⁴ Frederick C. Millett, Will the United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?, 6 Pierce L. Rev. 547, 551 (2008). Henry I ultimately reinstated the death penalty in 1108 and the death penalty was not abolished again in England until 1965. Id.

³⁵ Beccaria (Thomas ed.), supra note 1, at 57.

³⁶Id. The Coliseum in Rome, which gets its name from its colossal size, was originally known as the "Amphitheatre of Titus." It was the emperor's property—a place where slaves were taken to die, where criminals were executed, and where gladiators fought to the death and for their own lives, often against wild beasts. Livaudais v. Municipality No. 2, 16 La. 509, 1840 WL 1413 (1840); Rachel Stevens, The Trafficking of Children: A Modern Form of Slavery, Using the Alien Tort Statute to Provide Legal Recourse, 5 Whittier J. Child & Fam. Advoc. 645, 652 (2006); accord Fik Meijer, The Gladiators: History's Most Deadly Sport (2007).

³⁷ Beccaria (Thomas ed.), supra note 1, at 57.

³⁹ Maestro, supra note 1, at 153-55. In the early 1790s, during the French Revolution's infamous Reign of Terror led by Robespierre, approximately 17,000 executions of presumed enemies of the state took place. William E. Nelson, Marbury v. Madison, Democracy, and the Rule of Law, 71 Tenn. L. Rev. 217, 227 (2004); see also Scott M. Malzahn, State Sponsorship and Support of International Terrorism: Customary Norms of State Responsibility, 26 Hast. Int'l & Comp. L. Rev. 83, 86 (2002).

⁴⁰ Beccaria (Thomas ed.), supra note 1, at xxix; Maestro, supra note 1, at 124, 135; Laurence A. Grayer, A Paradox: Death Penalty Flourishes in U.S. While Declining Worldwide, 23 Denv. J. Int'l L. & Pol'y 555, 557 (1995). The Grand Duke of Tuscany, Pietro Leopold (or Leopold II as he became known in 1790 after succeeding his brother, Joseph II), also ordered the burning of instruments of torture, and was apparently pleased with the results, reporting in 1789 that "mild laws together with a careful vigilance" had reduced common crimes and almost eliminated "the most atrocious" ones. Maestro, supra note 1, at 122, 135; Helen Borowitz & Albert Borowitz, Book Review, 45 Md. L. Rev. 1066, 1070 n.8 (1986) (reviewing Samuel Y. Edgerton, Jr., Pictures and Punishment: Art and Criminal Prosecution During the Florentine Renaissance (1985)).

Other European and American intellectuals, including Jeremy Bentham and Dr. Benjamin Rush, would later cite the Tuscan example in their anti-death penalty advocacy. Joan Fitzpatrick & Alice Miller, International Standards on the Death Penalty: Shifting Discourse, 19 Brook. J. Int'l L. 273, 336 n.289 (1993) (citing Hugo Adam Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment 85-86 (1987)); Maestro, supra note 1, at 140-41; see also Hugo Adam Bedau, Bentham's Utilitarian Critique of the Death Penalty, 74 J. Crim. L. & Criminology 1033, 1033-36 (1983) (describing Bentham's writings against capital punishment, including in his 1775 book, Rationale of Punishment).

⁴¹ Maestro, supra note 1, at 122, 136; see also Patterson, supra note 3, at 1219 n.11 (citing M. Marc Ancel, European Comm'n on Crime Problems, The Death Penalty in European Countries 9 (1962)). Joseph II's mother was Empress Maria Theresa, who died in 1780 after a long reign. Maestro, supra note 1, at 112. Joseph II (1741-1790)—whose sister, Marie Antoinette, was guillotined in France in 1793—ruled for a decade following his mother's death. Id. at 122.

⁴²On Crimes and Punishments went through six editions in just eighteen months and was translated into several languages—a kind of eighteenth-century bestseller. Beccaria (Thomas ed.), supra note 1, at xxix; Cesare Beccaria, On Crimes and Punishments, at x (Henry Paolucci, trans., 1963) [hereinafter Beccaria (Paolucci, trans.); see also Daye v. State, 769 A.2d 630, 637 (Vt. 2000) (noting "the influence of Cesare Beccaria" on the Pennsylvania Constitution of 1776); George Fisher, The Birth of the Prison Retold, 104 Yale L.J. 1235, 1278 (1995) ("Beccaria was enormously influential in Britain."); Matthew A. Pauley, The Jurisprudence of Crime and Punishment from Plato to Hegel, 39 Am. J. Juris. 97, 131 (1994) (discussing Beccaria's influence on monarchs); id. ("Two years after the original anonymous publication, in Tuscany, of Beccaria's On Crimes and Punishments, a French translation was completed by Abbe Morellet. With amazing rapidity, the book became the toast of salons and courts from Paris to Vienna. As Henry Paolucci puts it in the introduction to his contemporary edition of Beccaria's work, 'as if an exposed nerve had been touched, all Europe was stirred to excitement.' Beccaria became a world celebrity. Voltaire praised his book as 'le code de l'humanite,' translating it himself and writing a long commentary on it. Diderot did the same thing.").

On Crimes and Punishments is still considered one of the most influential books of the past three centuries on those subjects. See Beccaria (Thomas ed.), supra note 1, at x.

⁴³See, e.g., Sarah Joseph, Committee Against Torture: Recent Jurisprudence, 6 Hum. Rts. L. Rev. 571 (2006).

⁴⁴See Abolish the Death Penalty, Amnesty International, http://www.amnesty.org/en/death-penalty (last visited Aug. 31, 2009). Nations that are abolitionist for "ordinary crimes" retain the death penalty for crimes such as those committed in wartime or under military law. See Ursula Bentele, Race and Capital Punishment in the United States and Africa, 19 Brook. J. Int'l L. 235, 240 n.15 (1993).

⁴⁵See Abolish the Death Penalty, supra note 44. Amnesty International lists all "Abolitionist" and "Retentionist" countries, breaking down the abolitionist countries into three categories: "Abolitionist for all Crimes," "Abolitionist for Ordinary Crimes only," and "Abolitionist in Practice." Id.

⁴⁶ See Abolitionist and Retentionist Countries, Amnesty International, www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries#retentionist (last visited Aug. 31, 2009). Japan's death penalty—not exactly a model of transparency and accountability—is carried out with utmost secrecy. Until a short time ago, the Japanese government actually did not even publicly disclose when executions would take place, and executed inmates' family members only learned of executions when told to come and pick up the bodies. Bessler, Death in the Dark, supra note 31, at 192. In December 2007, under mounting pressure from critics, Japanese officials finally modified that practice. They now publicly release the names and crimes of those hanged, but only on the day of the execution. Japan, which has 102 people on death row, recently hanged three murderers on the same day—an event reminiscent of a triple execution that took place in Arkansas in 1994. Id. at 77; Blaine Harden, Japan Hangs Three Killers as Pace of Executions Rises, Wash. Post, June 18, 2008, at A10.

⁴⁷ Sangmin Bae, When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment 24-27 (2007). Abolition of the death penalty is now a condition of entry into the European Union. Schabas, supra note 3, at 302-03.

⁴⁸ Canada abolished the death penalty for ordinary crimes in 1976 and for all crimes in 1998. Mexico abolished the death penalty for all crimes in 2005. See Abolitionist and Retentionist Countries, supra note 46.

⁵⁰S v Makwanyane and Another, 1995 (6) BCLR 665 (CC). Interpreting a constitutional bar on "cruel, inhuman or degrading treatment or punishment," South Africa's Constitutional Court declared the death penalty unconstitutional, and in doing so invoked the African concept of "ubuntu"—a concept closely associated with the Western concept of human dignity. John D. Bessler, In the Spirit of Ubuntu: Enforcing the Rights of Orphans and Vulnerable Children Affected by HIV/AIDS in South Africa, 31 Hast. Int'l & Comp. L. Rev. 33, 89 n.274 (2008); accord Ursula Bentele, Back to an International Perspective on the Death Penalty as a Cruel Punishment: The Example of South Africa, 73 Tul. L. Rev. 251 (1998); Peter Norbert Bouchkaert, Shutting Down the Death Factory: The Abolition of Capital Punishment in South Africa, 32 Stan. J. Int'l L. 287 (1996). In American courts, of course, the concept of human dignity has also become a touchstone of Eighth Amendment jurisprudence. Woodson v. North Carolina, 428 U.S. 280, 304 (1976); see also Glass v. Louisiana, 471 U.S. 1080, 1085 (1985) (Brennan, J., dissenting from denial of certiorari) ("[B]asic notions of human dignity command that the State minimize 'mutilation' and 'distortion' of the condemned prisoner's body.").

⁵¹ Beccaria had a special influence on Enlightenment figure Francois-Marie Arouet, better known by his pseudonym, Voltaire. See Joshua E. Kastenberg, An Enlightened Addition to the Original Meaning: Voltaire and the Eighth Amendment's Prohibition Against Cruel and Unusual Punishment, 5 Temp. Pol. & Civ. Rts. L. Rev. 49, 50, 55-56 (1995).

⁵² Maestro, supra note 1, at 140 ("The influence of Beccaria's ideas in Pennsylvania was so great that several prominent men went so far as to follow him in his stand for the complete abolition of the death penalty. In 1792 Dr. Benjamin Rush, a distinguished citizen and professor of clinical medicine at the University of Pennsylvania, published an essay entitled Considerations of the Injustice and Impolicy of Punishing Murder by Death in which he proclaimed that 'the marquis of Beccaria has established a connexion between the abolition of capital punishment, and the order and happiness of society.'").

⁵³See, e.g., Beccaria (Thomas ed.), supra note 1, at xxvii-xxviii (noting the editorial liberties that a French translator took in translating Beccaria's book); Maestro, supra note 1, at 40 (reprinting a letter that a French translator sent to Beccaria informing him of the completed translation, with the translator writing: "Men of letters belong to all nations and to the whole world; they are united by links stronger than those 5which exist among the citizens of one country, the inhabitants of one city, the members of one family."). On Crimes and Punishments would be widely distributed and read in the United States for many decades. See Masur, supra note 1, at 52 ("In the 1780s most catalogues of books for sale in America included an edition of Beccaria's essay, and newspapers such as the New Haven Gazette and Connecticut Magazine serialized Beccaria for their readers."); M.H. Hoeflich, Translation & the Reception of Foreign Law in the Antebellum United States, 50 Am. J. Comp. L. 753, 768-71 (2002) (noting that Joseph Story owned a copy of Beccaria's book).

⁵⁴ Two commentators, Samuel Gross and Phoebe Ellsworth, once quipped—albeit only half-jokingly—that "the last new argument against the death penalty" may have been made by Cesare Beccaria in 1764. See Timothy V. Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 Yale L.J. 681, 685 (2001) (reviewing Austin Sarat, When the State Kills: Capital Punishment and the American Condition (2001)).

⁵⁵ Jefferson is reported to have read Beccaria in Italian. Merrill Peterson, Thomas Jefferson and the New Nation 124 (1970); see also Maestro, supra note 1, at 141 ("We find another proof of Beccaria's early popularity on the American continent in Thomas Jefferson's Commonplace Book which contains several extracts from Montesquieu in French, followed by no less than twenty-six extracts from Beccaria in Italian, all long passages cited in Jefferson's own handwriting. These extracts were written, according to Gilbert Chinard who edited the Commonplace Book, between 1774 and 1776, when Jefferson became a member of the Virginia Committee of Revisors for the reform of the legal system.").

⁵⁶ Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).

⁵⁷ Baze v. Rees, 128 S. Ct. 1520 (2008).

⁵⁸ Boumediene v. Bush, 128 S. Ct. 2229 (2008).

⁵⁹Baze, 128 S. Ct. at 1520.

⁶⁰ Schabas, supra note 3, at 5; Simon Devereaux, Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789, 25 Law. & Hist. Rev. 101, 123 & n.63 (2007) (citing Hugh Dunthorne, "Beccaria and Britain," in Crime, Protest and Police in Modern British Society: Essays in Memory of David J. V. Jones (David W. Howell & Kenneth O. Morgan, eds. 1999) & Anthony J. Draper, Cesare Beccaria's Influence on English Discussions of Punishment, 1764-1789, 26 Hist. of European Ideas 177-99 (2000)).

⁶¹ United States v. Blake, 89 F. Supp. 2d 328, 343 (E.D.N.Y. 2000). In 1777, John Howard—a prison reformer—published a detailed account of the terrible conditions of British prisons and called for changes in the treatment of prisoners. John Howard, The State of the Prisons in England and Wales (1777); Randall McGowen, "The Well-Ordered Prison," in The Oxford History of the Prison 87 (1995); see also Fisher, supra note 42, at 1236 ("Howard decried the filth of the prisons, the avarice of their keepers, and the neglect of the magistrates who were charged with overseeing both. He made detailed recommendations for the proper running of prisons."). Howard, for example, thought day-and-night solitary confinement too harsh. John Howard, An Account of the Principal Lazarettos in Europe 169 n.* (1789).

Early English prisons, which often kept prisoners in irons, were dirty, disease-infested and served mainly to confine debtors and those awaiting trial or execution or, as was commonly the case, transportation to American or Australian penal colonies. Devereaux, supra note 60, at 127-28; Fisher, supra note 42, at 1239, 1267-68. And the situation was much the same in the United States, where the first prisons were not built until the late eighteenth century. Compare Lawrence Friedman, Crime and Punishment in American History 78 (1994) ("In Connecticut, a prison was improvised in 1773 out of certain copper mines at Simsbury. Called 'Newgate' after the English prison, it became the state prison of Connecticut in 1790. This was, by all accounts, a horrendous dungeon, a dark cave of 'horrid gloom.'") with Sara A. Rodriguez, The Impotence of Being Earnest: Status of the United Nations Standard Minimum Rules for the Treatment of Prisoners in Europe and the United States, 33 New Eng. J. on Crim. & Civ. Confinement 61, 68 (2007) ("The first prison in the United States, the Walnut Street Jail in Philadelphia, was built in 1787 and converted in 1790 to include a 'penitentiary house.' It featured a program advocated by Quakers, who wanted to reform offenders 'while also providing humane treatment.'").

⁶² Bentham wrote that punishment is intended "to induce a man to choose always the least mischievous of two offences." Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 168 (J.H. Burns & H.L.A. Hart eds., 1970) (1789); see also Jeremy Bentham, The Theory of Legislation 201 (N. M. Tripathi Private Ltd. 1975) (1802) ("Where two offences are in conjunction, the greater offence ought to be subjected to severer punishment, in order that the delinquent may have a motive to stop at the lesser."); James E. Crimmins, On Bentham 51-57 (2004) (discussing Beccaria's influence on Bentham); H.L.A. Hart, Bentham and Beccaria, in Essays on Bentham: Studies in Jurisprudence and Political Theory 40 (1982) (discussing the relationship between Beccaria and Bentham).

⁶³ Maestro, supra note 1, at 44-45.

⁶⁴ Kastenberg, supra note 51, at 50-51, 58, 61-62; Maestro, supra note 1, at 18-19.

⁶⁵ Beccaria (Paolucci, trans.), supra note 42, at x-xi; Alice Ristroph, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 272 n.27 (2005).

⁶⁶ Jeremy Bentham, Theory of Legislation 353-54 (2d ed. 1874); Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 22 (1987).

⁶⁷ Blackstone became the Vinerian Chair at Oxford in 1758, and the first volume of his Commentaries on the Laws of England—a huge success in the American colonies—was published in 1765. See Daniel R. Coquillette, The Legal Education of a Patriot: Josiah Quincy Jr.'s Law Commonplace (1763), 39 Ariz. St. L.J. 317, 327-28 (2007).

⁶⁸ State v. Wheeler, 175 P.3d 438, 443 (Or. 2007) ("Although Blackstone suggested that fine distinctions in ranges of punishments may be difficult to make and are best left to legislative judgment, he set out a number of principles, at least some of them inspired by his reading of Cesare Beccaria's contemporary treatise on criminal law and punishment, On Crimes and Punishments (1764; first English trans 1767). Blackstone, following Beccaria, emphasized rationality in the imposition of punishments, rather than the indiscriminate application of harsh punishments such as the death penalty. Punishment, in Blackstone's view (as influenced by Beccaria), should take into account the manifold complexities of aggravating and extenuating circumstances, including a weighing of the effectiveness of a particular penalty in preventing future crimes.") (quoting 4 William Blackstone, Commentaries on the Laws of England 15-16 (1769)).

⁶⁹ 4 Blackstone, supra note 68, at 17; see also Markus Dirk Dubber, "The Power to Govern Men and Things"; Patriarchal Origins of the Police Power in American Law, 52 Buff. L. Rev. 1277, 1310 (2004) ("The Americans of the time clearly paid much attention to Cesare Beccaria's Crimes and Punishments (1764), as did everyone else interested in matters of criminal law, including Blackstone.").

⁷⁰ William Blackstone believed that a punishment "ought always to be proportioned to the particular purpose it is meant to serve, and by no means exceed it." 4 Blackstone, supra note 68, at 12.

⁷¹ 4 Blackstone, supra note 68, at 17-18. As Blackstone wrote: "A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislature, or the strength of executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure." Id. Blackstone also wrote that executions should be avoided where "the evil to be prevented is not adequate to the violence of the preventative." Id. at 10. According to Sir William Holdsworth, "it was Beccaria's book which helped Blackstone to crystallize his ideas, and it was Beccaria's influence which helped to give a more critical tone to his treatment of the English criminal law than to his treatment of any other part of English law." Maestro, supra note 1, at 130.

The word "sanguinary"—a term commonly used during the founding era—has long been defined as "bloody," "cruel," or "murderous." A Complete and Universal English Dictionary (1792); see also State v. Newman, 140 N.W.2d 406, 412 (Neb. 1966) (defining "bloodthirstiness" as "[e]ager to shed blood, cruel, sanguinary, murderous"). The New Hampshire, Pennsylvania and South Carolina constitutions all called for less "sanguinary" punishments. See N.H. Const. of 1784, art. XVIII; S.C. Const. of 1778, art. I, § 40 (1790); Pa. Const. of 1776, § 38 (1790); accord Sterling v. Cupp, 625 P.2d 123, 128 (Or. 1981) ("The Pennsylvania Constitution . . . provided that the penal laws were to be reformed and punishments made less 'sanguinary' (i.e., bloody) by substituting imprisonment at hard labor.").

⁷²See Maestro, supra note 1, at 130; Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691, 712 (2003).

⁷³ As Blackstone wrote: "[T]he pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible: which may be collected either from a repetition of minuter offenses; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment and in such cases it would be cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies." 4 Blackstone, supra note 68, at 12.

⁷⁵See Irving Brant, The Bill of Rights: Its Origin and Meaning 464 (1915) ("On Crimes and Punishments helped shape our Fifth and Eighth Amendments."); Deborah A. Schwartz & Jay Wishingrad, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buff. L. Rev. 783, 813 (1975) ("There were three American translations of Beccaria, each coupled with Voltaire's Commentary, which were published in America before the formulation of the Bill of Rights. They became immediately popular at both bookstores and lending libraries.") (citing Mary-Margaret H. Barr, Voltaire in America 1774-1880, at 121 (1941)); id. at 829-30 ("Madison himself had been a member of the committee which drew up the Virginia Declaration of Rights, so it is not surprising that he turned to the state provisions and particularly relied on the amendments of Virginia and Massachusetts for content."); id. at 830 (pointing out that Madison himself noted "the impact of the Enlightenment and specifically Beccaria on the Virginia Revisal of the Laws, and, in fact, had included the treatise of Beccaria in the list of recommended books which he had reported as proper for the use of the Continental Congress") (quoting 8 The Papers of James Madison 393 (W. Hutchinson & W. Rachal eds., 1962) and Brant, supra, at 38-39).

⁷⁶See, e.g., Carmona v. Ward, 576 F.2d 405, 427 (2d Cir. 1978) (Oakes, J., dissenting) (noting that the Framers were familiar with the writings of Beccaria and that James Madison was "a student of Beccaria and had included Beccaria's treatise in the list of recommended books for use by the Continental Congress").

⁷⁷ Adolph Caso, We the People: Formative Documents of America's Democracy 239 (2001).

⁷⁸See People ex rel. Colorado Bar Ass'n v. Irwin, 152 P. 905, 908 (Colo. 1915) (citing a passage of Blackstone referencing Beccaria); Eureka County Bank Habeas Corpus Cases, 126 P. 655, 661 (Nev. 1912) (citing Beccaria); State v. Burlington Drug Co., 78 A. 882, 885 (Vt. 1911) ("While the [state constitutional] provision suggests the immunities of the Great Charter, its language seems due rather to the influence of Beccaria, whose treatise on Crimes and Punishments was translated into English in 1768, and was read avidly by lawyers and jurists everywhere in the latter part of the eighteenth and the earlier part of the nineteenth centuries. This is no fanciful conjecture, for in discussing the subject of penal laws Chipman acknowledges the influence of the Italian writer, quotes from his work, and says in precise terms: 'The world is more indebted to the Marquis Beccaria for this little Treatise on Crimes and Punishments than to all other writers on the subject.'"); Ex parte Smith, 111 P. 930, 936 (Nev. 1910) (citing Beccaria); Ex parte Davis, 110 P. 1131, 1134 (Nev. 1910) (same); Ex parte Rickey, 100 P. 134, 141 (Nev. 1909) (same); People v. Lesser, 27 N.Y.S. 750 (N.Y. Sup. Ct. 1894) (same); Ex parte Deidesheimer, 14 Nev. 311, 1879 WL 3488, at *4 (1879) (same); State v. Deal, 64 N.C. 270, 1870 WL 1723, at *3 (1870) (same); Blair v. Ridgely, 41 Mo. 63, 1867 WL 4732, at *7 (1867) (same); Gordon v. People, 33 N.Y. 501, 514 (1865) (same); Cook v. Board of Chosen Freeholders of Middlesex County, 26 N.J.L. 326, 1857 WL 94, at *4 (N.J. Sup. 1857) (same); State v. Dunning, 9 Ind. 20, 1857 WL 3554, at *4 (1857) (same); Commonwealth v. Anthes, 71 Mass. 185, 225 (1855) (same); Ezekiel v. Dixon, 3 Ga. 146, 1847 WL 1321, at *7 (1847) (same); Commonwealth ex rel. Short v. Deacon, 1823 WL 2218, at *4 (Pa. 1823) (same); New York v. Melvin, 2 Wheeler C.C. 262, Yates Sel. Cas. 112 (1810) (referencing a "saying of the Marquis Beccaria" that "the judicial system of every country is two or three hundred years behind its progress in civilization"); Cunningham v. Caldwell, 3 Ky. 123, 1807 WL 528, at *5 (1807) (citing Beccaria's "celebrated work on Crimes and Punishments"); State v. Hobbs & Return Strong, 1803 WL 184 (Vt. 1803) (quoting Beccaria at length); Brinley v. Avery, 2 Kirby 22, 1786 WL 162, at *1 (Conn. 1786) (citing Beccaria).

⁷⁹ Donald Lutz, a University of Houston political scientist, conducted the examination of the Founding Fathers' writings and speeches. The historical record also shows more than one-third of all libraries in the period 1777-90 contained a copy of Beccaria's now-famous essay, On Crimes and Punishments, and that Beccaria accounted for about one percent of citations to published writers in the 1770s and three percent in the 1780s. See Founding Father's Library, The Forum at The Online Library of Liberty (a project of Liberty Fund, Inc.), http://oll.libertyfund.org/index.php?Itemid=259&id=438&option=com_content&task=view; Donald S. Lutz, The Relative Influence of European Writers on Late Eighteenth Century American Political Thought, 78 Am. Pol. Sci. Rev. 189 (1984); see also Donald Lutz, A Preface to American Political Theory 136, 138 (1992). The Founding Fathers cited the Bible more frequently than any other source. John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers 51-52 (1987).

⁸⁰ Adams thought the death penalty necessary in certain circumstances. See David McCullough, John Adams 540 (2001) ("Capital punishment was part of life. Nor was Adams opposed to it. As President, he had signed death warrants for military deserters."); Letter from John Adams to Colonel Hitchcock, Oct. 1, 1776 ("It is said, there was shameful Cowardice. If any Officer was guilty of it, I sincerely hope he will be punished with death. This most infamous and detestable Crime, must never be forgiven in an Officer."); Letter from John Adams to Henry Knox, Sept. 29, 1776 ("I despize that Panick and those who have been infected with it, and I could almost consent that the good old Roman fashion of decimation should be introduced. The Legion, which ran away, had the name of every Man in it, put into a Box, and then drawn out, and every tenth Man was put to death. The terror of this Uncertainty, whose Lot it would be to die, restrained the whole in the time of danger from indulging their fears."); Autobiography of John Adams, part 1, sheet 20 of 53, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009) (discussing letters of his which were intercepted by the British and later printed) ("The Expressions were Will your judiciary Whip and hang without Scruple. This they construed to mean to excite Cruelty against the Tories, and get some of them punished with Severity. Nothing was farther from my Thoughts. I had no reference to Tories in this. . . . [M]y Question meant no more than 'Will your judges have fortitude enough to inflict the severe punishments when necessary as Death upon Murderers and other capital Criminals, and flaggellation upon such as deserve it.' Nothing could be more false and injurious to me, than the imputation of any sanguinary Zeal against the Tories, for I can truly declare that through the whole Revolution and from that time to this I never committed one Act of Severity against the Tories. On the contrary I was a constant Advocate for all the Mercy and Indulgence consistent with our Safety.").

⁸¹ United States v. Flemmi, 195 F. Supp.2d 243, 253 (D. Mass. 2001) (citing McCullough, supra note 80, at 65-68 and Marvin Wolfgang, Introduction to Cesare Beccaria, Of Crimes and Punishments ii (Marsilo Publishers 1996)); see also Schwartz & Wishingrad, supra note 75, at 814 n.148 ("John Adams made this statement in quoting from Beccaria's treatise which had been translated into English and published in London in 1770. On June 28, 1770, Adams copied a passage from Beccaria into his diary.").

⁸²See Diary of John Adams 15 (diary entry for June 28, 1770), Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009); Schwartz & Wishingrad, supra note 75, at 814 n.148 (citing 1 Diary and Autobiography of John Adams 352-53 n.2 (Butterfield ed., 1961) ("This passage did in fact appear in the opening statement of his October defense of Captain Preston, who was accused and later acquitted in the Boston Massacre trial. Adams bought his own copy of Beccaria's works in the Italian edition in Paris in 1780, and it is among his books in the Boston Public Library.")); see also Pauley, supra note 42, at 132 ("One of the earliest translations of On Crimes and Punishments, a London 1775 edition, was in the library of John Adams. As Adolph Caso tells us in America's Italian Founding Fathers, in that book 'the Coat of Arms of John Adams, stamped on the first page, bears the inscription in Latin: 'Libertatem/ Amicitiam/ Retinebis/ Et Fidem,' which may be translated, 'You will retain liberty, friendship, and faith.'"). Sixteen years later, Adams wrote in his diary, first in English then in the original Italian, another quotation from Beccaria: "Every Act of Authority, of one Man over another for which there is not an absolute Necessity, is tyrannical." Diary of John Adams 44, (diary entry for July 20, 1786), Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009).

⁸³ Diary of John Adams, supra note 82, at 44; see also Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 16 (2008) (quoting John Adams' "lifelong belief that all of history had proved that the People, unrestrained, tend to be 'unjust, tyrannical, brutal, barbarous, and cruel.'").

⁸⁴See 1 Diary and Autobiography of John Adams, supra note 82, at 352, 353 n.2; 2 id. at 440, 442; Nicholas Levi, Veil of Secrecy: Public Executions, Limitations on Reporting Capital Punishment, and the Content-Based Nature of Private Execution Laws, 55 Fed. Comm. L.J. 131, 137 (2002).

⁸⁵ Diary of John Adams, supra note 82, at 44.

⁸⁶See Letter from Abigail Adams to John Adams, 31 March 1797, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009) ("We are suffering under the same apprehensions which have afflicted other places. The attempts to destroy Boston by fire are daily, or rather Nightly repeated. Patroles are constantly kept. They have detected but few. The vile wretches have got into the Country. At Milton they keep a Nightly watch. It is really a distressing calamity, but we shall be infested with more vagabonds, if the states go on to abolish capital punishment."). Her feelings on capital punishment can also be gleaned from another letter she sent her husband. See Letter from Abigail Adams to John Adams, 12 January 1794, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/ (last visited Aug. 31, 2009) ("In France they have at length added the Murder of [the] unfortunate Queen to the measure of their Inequality, Whilst Humanity sickens at the recital of their crimes, her death is less horrible than the cruel imprisonment and indignities she has sustaind.").

⁸⁷ Schabas, supra note 3, at 5; see also Schwartz & Wishingrad, supra note 75, at 823 (noting that James Wilson—famous for his law lectures—spoke at the College of Philadelphia on the "Necessity and Proportion of Punishments" in which he discussed Beccaria's views and that Robert J. Turnbull, in A Visit to the Philadelphia Prison, published in 1796, discussed Pennsylvania's experiment with penal reform and stated that "[s]everal circumstances combined to make the proposed alteration expedient, and among others the small and valuable gift of the immortal Beccaria to the world had its due influence"); Pauley, supra note 42, at 131 ("It is not possible here to survey all of the ways in which Beccaria influenced continental jurisprudence in the late eighteenth century."); id. at 132 ("The influence of Beccaria's book on the American founding fathers was also staggering. Within six years of the first English translation of 1767, a reprint of that edition was issued in New York. In 1776, an edition including Voltaire's commentary appeared in Philadelphia. In the next several years, other editions were published in different American cities. This publication history is significant when one considers how long it took for other important Enlightenment works of philosophy to be published in America—Rousseau's Confessions not until 1796 and Montesquieu's Spirit of the Laws not until 1802.").

⁸⁸ James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments, in 2 Collected Works of James Wilson 240 (Kermit L. Hall & Mark David Hall eds., 2007) ("The theory of criminal law has not, till lately, been a subject of much investigation. The Marquis of Beccaria led the way."); accord Robert Aitken, James Wilson: A Lost American Founder, 29 Litigation 61, 64-65 (2003).

⁸⁹ Wilson, supra note 88, at 307.

⁹⁰ Aitken, supra note 88, at 73.

⁹¹ For additional biographical information about this prominent Philadelphia physician, see Claire G. Fox, Gordon L. Miller & Jacquelyn C. Miller, comp., Benjamin Rush, M.D.: A Bibliographic Guide (1996); Benjamin Rush, Revolutionary Physician: An Interpretation of Religion in the Republic (1984); Donald J. D'Elia, Benjamin Rush: Philosopher of the American Revolution (1974); David Freeman Hawke, Benjamin Rush: Revolutionary Gadfly (1971); Carl Binger, Revolutionary Doctor: Benjamin Rush, 1746-1813 (1966); Sarah R. Riedman & Clarence C. Green, Benjamin Rush, Physician, Patriot, Founding Father (1964).

⁹²See Christopher Hitchens, Thomas Jefferson 39 (2005) ("Benjamin Franklin admired Beccaria hugely."); Benjamin Rush, An Enquiry into the Effects of Public Punishments Upon Criminals, and Upon Society 15 (Mar. 9, 1787).

⁹⁴See 1, 2 Benjamin Rush, Letters at 316, 416-17, 463, 479-82, 490-91, 496, 526-27, 570, 581, 584, 620-21, 628, 799, 874-75, 922-23, 1090-91, 1102, 1114, 1126 (L.H. Butterfield ed., 1951).

⁹⁵ The Selected Writings of Benjamin Rush 41, 46, 97 (Dagobert D. Runes ed., 2007).

⁹⁶ Matthew W. Meskell, The History of Prisons in the United States from 1777 to 1877, 51 Stan. L. Rev. 839, 844 (1999) ("Spurred by Beccaria's essay, William Bradford wrote a widely-circulated article entitled An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania, With Notes and Illustrations in 1793 in which he quoted with approval many of Beccaria's arguments.").

⁹⁷ Oregon v. Hirsch, 114 P.3d 1104, 1132 (Or. 2005); see also Keally D. McBride, Punishment and Political Order 90 (2007) (noting that Thomas Paine was "well acquainted with the work On Crimes and Punishments" and that "Cesare Beccaria's work was mentioned in pamphlet after pamphlet about criminal law in the new republic"). Thomas Paine's Common Sense first appeared on January 9, 1776, and spread with lightning speed throughout the American colonies. The Declaration of Independence and the Constitution of the United States 4 (Pauline Maier ed., 1998) [hereinafter The Declaration of Independence]. Paine also published Rights of Man, a guide to the Enlightenment, in 1791, and shortly thereafter The Age of Reason. See R. B. Bernstein, Rediscovering Thomas Paine, 39 N.Y.L. Sch. L. Rev. 873, 887-89 (1994).

⁹⁸ William Bradford, An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania (1793) (referring to Beccaria in the Introduction, the chapter "On Capital Punishments," and the "Conclusion"); see also Furman v. Georgia, 408 U.S. 238, 336 (1972) (Marshall, J., concurring).

⁹⁹ On January 15, 1793, in France's National Assembly, Paine invoked Robespierre's call for the death penalty's abolition in asking that Louis XVI's life be spared: "It has already been proposed to abolish the punishment of death, and it is with infinite satisfaction that I recollect the humane and excellent oration pronounced by Robespierre on that subject in the Constituent Assembly. This cause must find its advocates in every corner where enlightened politicians and lovers of humanity exist, and it ought above all to find them in this assembly. Monarchical governments have trained the human race, and inured it to the sanguinary arts and refinements of punishment; and it is exactly the same punishment which has so long shocked the sight and tormented the patience of the people, that now, in their turn, they practice in revenge upon their oppressors. But it becomes us to be strictly on our guard against the abomination and perversity of monarchical examples: as France has been the first of European nations to abolish royalty, let her also be the first to abolish the punishment of death, and to find out a milder and more effectual substitute." Thomas Paine, Reasons for Preserving the Life of Louis Capet, in 3 The Writings of Thomas Paine 123-24 (Moncure Daniel Conway ed., 1895).

¹⁰⁰ Schabas, supra note 3, at 5 & n.31 (citations omitted). On January 19, 1793, Paine—an honorary delegate because of his role in the American Revolution—regretted the National Assembly's vote to sentence Louis XVI to death, saying: "I voted against it from both moral motives and motives of public policy." Paine, Shall Louis XVI Have Respite?, supra note 99, at 127; Geoffrey Robertson, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial, 38 Cornell Int'l L.J. 649, 652 (2005). In his speech that day, Paine was twice interrupted by Jean-Paul Marat, who said that Paine was "incompetent to vote on this question" because Paine was a Quaker whose "religious principles" were "opposed to capital punishment." John Keane, Tom Paine: A Political Life 368 (2003). Yet Paine persisted in his oration: "I know that the public mind of France, and particularly that of Paris, has been heated and irritated by the dangers to which they have been exposed; but could we carry our thoughts into the future, when the dangers are ended and the irritations forgotten, what to-day seems an act of justice may then appear an act of vengeance. [Murmurs.] My anxiety for the cause of France has become for the moment concern for her honor. If, on my return to America, I should employ myself on a history of the French Revolution, I had rather record a thousand errors on the side of mercy, than be obliged to tell one act of severe justice. . . . France has but one ally—the United States of America. That is the only nation that can furnish France with naval provisions, for the kingdoms of northern Europe are, or soon will be, at war with her. It unfortunately happens that the person now under discussion is considered by the Americans as having been the friend of their revolution. His execution will be an affliction to them, and it is in your power not to wound the feelings of your ally. Could I speak the French language I would descend to your bar, and in their name become your petitioner to respite the execution of the sentence on Louis." Paine, supra note 99, at 125, 127 (italics in original).

¹⁰¹ Thomas Jefferson felt conflicted and remorseful over the execution of the French king and queen, seeing death as unnecessary. In a draft autobiography written in 1821, Jefferson laid out his feelings: "The deed which closed the mortal course of these sovereigns, I shall neither approve nor condemn. I am not prepared to say that the first magistrate of a nation cannot commit treason against his country, or is unamenable to it's punishment: nor yet that where there is no written law, no regulated tribunal, there is not a law in our hearts, and a power in our hands, given for righteous employment in maintaining right, and redressing wrong. Of those who judged the king, many thought him wilfully criminal, many that his existence would keep the nation in perpetual conflict with the horde of kings, who would war against a regeneration which might come home to themselves, and that it were better that one should die than all. I should not have voted with this portion of the legislature. I should have shut up the Queen in a Convent, putting harm out of her power, and placed the king in his station, investing him with limited powers, which I verily believe he would have honestly exercised, according to the measure of his understanding." Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow "List all Collections" hyperlink; then follow "Jefferson, Thomas ~ Papers ~ 1606-1827" hyperlink; then search "autobiography" in "Search Collection"; then follow "Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27") (last visited Aug. 31, 2009).

¹⁰² Thomas Paine would suffer the consequences for his idealism. See John P. Frank, Book Review, 61 Yale L.J. 1227, 1229 (1952) (reviewing Howard Swiggett, The Extraordinary Mr. Morris (1952)). After being arrested and imprisoned in France in 1793, Paine only narrowly avoided execution through a stroke of luck. A guard walked through the French prison where Paine was held, putting chalk marks on the cell doors of condemned prisoners, but Paine's door was open at the time and when it was closed the mark on it was hidden from view; Paine—released from prison shortly thereafter—was thus fortuitously saved from the executioner. Thomas Clio Rickman, The Life and Writings of Thomas Paine 261-62 (1908); Bernstein, supra note 97, at 889. Ironically, Robespierre—who failed to convince the National Assembly to do away with executions, then later changed his position, calling for the execution of Louis XVI and overseeing France's Reign of Terror—would later be guillotined. Maestro, supra note 1, at 153-54; Schabas, supra note 3, at 5; Paul Rosenzweig, Targeting Terrorists: The Counterrevolution, 34 Wm. Mitchell L. Rev. 5083, 5084 (2008).

¹⁰³See Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1200-01 (1982) ("In a speech before a joint session of the legislature in 1793, Governor Hancock called on the representatives to abandon this system and impose Beccaria's method, but the House failed to comply."); id. at 1201 n.106 (quoting Hancock as saying, "I recommend these ideas to your wise deliberations, that such punishments may be provided as, if administered with certainty and inflexibility, may be sufficient to check the progress of crime."); id. at 1198 ("Beccaria's stand against capital punishment won many adherents in post-Revolutionary Massachusetts.") (citations omitted).

¹⁰⁴See Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1215 (1996) (citing The Commonplace Book of Thomas Jefferson 314 (G. Chinard ed., 1926) (quoting Cesare Beccaria, An Essay on Crimes and Punishments 87-88 (1764))); Pauley, supra note 42, at 131; Schwartz & Wishingrad, supra note 75, at 817.

¹⁰⁵ The Declaration of Independence, supra note 97, at 7-17. It was John Adams who suggested that Thomas Jefferson take the lead role in drafting the Declaration of Independence. J. Harvie Wilkinson, III, Building a Legal Culture of Affection, 99 Nw. U. L. Rev. 1235, 1243 (2005). Building upon George Mason's work with Virginia's constitution, Jefferson took up his pen and built into the Declaration of Independence a natural rights framework, stating that "all men are created equal" and "are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness." Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593, 604 (1993).

¹⁰⁶ Schwartz & Wishingrad, supra note 75, at 817; see also Maestro, supra note 1, at 141 ("Criminal law was Jefferson's field and at the end of 1778 he had already completed his 'Bill for Proportioning Crimes and Punishments in Cases heretofore Capital.' This bill was copiously annotated, and Beccaria's name appears four times in the footnotes, which refer to several passages of his famous treatise. Not until 1785 was the bill introduced in the House of the Virginia Commonwealth; it was rejected then, but it was later approved when presented again in 1796.").

¹⁰⁷ Jefferson's drafts proposed that the state's General Assembly "have no power to pass any law inflicting death for any crime, excepting murder, and those offenses in the military service for which they shall think punishment by death absolutely necessary; and all capital punishments in other cases are hereby abolished." Maestro, supra note 1, at 141 (citing Thomas Jefferson, Third Draft of the Virginia Constitution (1776), reprinted in 1 The Papers of Thomas Jefferson 359 (Julian P. Boyd ed., 1950)). Jefferson also proposed language to forbid the General Assembly from prescribing "torture in any case whatever." 2 The Works of Thomas Jefferson 169 (Paul Leicester Ford ed., 1904). Jefferson's drafts, however, failed to pass. See Alexander Tsesis, Undermining Inalienable Rights: From Dred Scott to the Rehnquist Court, 39 Ariz. St. L.J. 1179, 1188 (2007).

¹⁰⁸ Jefferson's draft of the Declaration of Independence had originally recognized "inherent and inalienable rights." That language morphed into "inherent & unalienable rights," which later became "certain unalienable rights." The Declaration of Independence, supra note 97, at 8, 11, 13. The terms "inalienable" and "unalienable" are used interchangeably in multiple state constitutions with no apparent difference in meaning between the two terms. See David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU J. Pub. L. 43, 102 n.314 & 129 n.444 (2007); Daniel Avila, Assisted Suicide and the Inalienable Right to Life, 16 Issues L. & Med. 111, 112 n.4 & 113 n.6 (2000); Brett W. King, Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules, 2 U. Pa. J. Const. L. 609, 630 n.104 (2000).

¹⁰⁹ Jefferson, who saw executions as warranted during war, helped to revise the Articles of War in 1776, expanding the number of death-eligible offenses in them. John F. O'Connor, Don't Know Much About History: The Constitution, Historical Practice, and the Death Penalty Jurisdiction of Courts-Martial, 52 U. Miami L. Rev. 177 (1997) ("The 1776 Code, drafted by a committee comprised of John Adams, Thomas Jefferson, John Rutledge, James Wilson, and R.R. Livingston, greatly enlarged the class of capital crimes cognizable under military law. Where the 1775 Articles had limited the death penalty to three purely military offenses, the 1776 Articles permitted capital punishment for sixteen different crimes."). At the same time, however, many early American leaders, such as George Washington, were revolted by senseless wartime cruelty and adopted a policy to treat prisoners of war humanely. David Hackett Fischer, Washington's Crossing 378 (2004).

¹¹⁰ Schwartz & Wishingrad, supra note 75, at 817; Jupiter, supra note 9, at 476 n.191. Jefferson's bill for proportionate punishments—as one scholar puts it—"called for punishment based on the theory of prevention outlined by Cesare Beccaria and developed by Jeremy Bentham." Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 New Crim. L. Rev. 319, 321 (2007) (citing Markus D. Dubber, An Extraordinarily Beautiful Document: Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment, in Modern Histories of Crime and Punishment (Markus D. Dubber & Lindsay Farmer eds., 2007)).

¹¹¹ 2 The Works of Thomas Jefferson, supra note 107, at 394. Jefferson himself—in a letter he wrote in August 1776—called for "strict and inflexible punishments," but ones that were "proportioned to the crime," "proportioned to the offense." Letter from Thomas Jefferson to Edmund Pendleton, Aug. 26, 1776, in 1 The Papers of Thomas Jefferson 505 (J. Boyd ed., 1950); see also id. at 490 (reprinting the letter from Edmund Pendleton to Jefferson that Jefferson was responding to, with Pendleton's letter referencing Jefferson's efforts at "reformation as to our criminal system of laws," stating that the criminal law "has hitherto been too Sanguinary, punishing too many crimes with death, I confess, and could wish to see that change for some other mode of Punishment in most cases," but warning Jefferson not to go too far, saying, "if you mean to relax all punishments and rely on virtue and the public good as sufficient to prompt obedience to laws, you must find a new race of men to be the subjects of it").

¹¹² Davison M. Douglas, God and the Executioner: The Influence of Western Religion on the Death Penalty, 9 Wm. & Mary Bill Rts. J. 137, 157 (2000) ("Thomas Jefferson . . . drawing heavily on Beccaria's penal theories, proposed the abolition of all capital crimes except murder and treason in Virginia in 1779.").

¹¹³ The proposed code called for mandatory death sentences for treason and murder, death by poison for those who killed by poisoning, the hanging and gibbeting of any challenger who killed someone in a duel, castration for male rapists and men committing sodomy, and for acts of maiming similar disfigurement. If an offender lacked the body part to be maimed or disfigured, the bill provided that "some other part of at least equal value and estimation, in the opinion of a jury," was to be taken. See Maestro, supra note 1, at 142; Daniel D. Blinka, Jefferson and Juries: The Problem of Law, Reason, and Politics in the New Republic, 47 Am. J. Legal Hist. 35, 89-91 (2005); 2 The Works of Thomas Jefferson, supra note 107, at 396-98, 402-04. In essence, Jefferson's proposed code followed "the Roman lex talionis, the law of the claw, and the Mosaic law, an 'eye for an eye and a tooth for a tooth,' as he put it." Willard Sterne Randall, Thomas Jefferson: A Life 299 (Harper Perrenial 1994). Indeed, Jefferson later conceded that in drafting the bill he "thought it material not to vary the diction of the antient statutes by modernizing it, nor to give rise to new questions by new expressions." See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, Feb. 6 Entry, http://memory.loc.gov/ (follow "List all Collections" hyperlink; then follow "Jefferson, Thomas ~ Papers ~ 1606-1827" hyperlink; then search "autobiography" in "Search Collection"; then follow "Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27") (last visited Aug. 31, 2009). The speed with which executions were to be carried out under the bill certainly showed that Jefferson believed in swift punishments, another concept articulated by Beccaria in On Crimes and Punishments. See Beccaria (Thomas ed.), supra note 1, at 39, 86. Jefferson's bill provided that executions were to be carried out almost immediately—literally within hours or days of sentencing—for those convicted of treason or murder. 2 The Works of Thomas Jefferson, supra note 107, at 401-02.

¹¹⁴ Not only did Jefferson's bill call for castration for males committing sodomy or rape, but under his bill, a female committing rape or a homosexual act was to be punished "by boring through the cartilage of her nose a hole of one half inch in diameter at the least." 2 The Works of Thomas Jefferson, supra note 107, at 403; Elvia Rosales Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority, 14 Women's Rts. L. Rep. 263, 288 n.243 (1992); see also Jeff Broadwater, George Mason, Forgotten Founder 278 (2006) ("Bill No. 64 . . . set the penalties for homosexual acts: 'If a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least.' Because the penalty at common law had been death, this was considered progress.").

After his rape provision came under criticism in Europe, Jefferson recanted his support for it. See Randall, supra note 113, at 299; accord Christopher Bopst, Rape Shield Laws and Prior False Accusations of Rape: The Need for Meaningful Legislative Reform, 24 J. Legis. 125, 126 n.7 (1998) (quoting 9 Thomas Jefferson, Papers of Thomas Jefferson (Julian P. Boyd ed., 1950) (letter to James Madison)).

¹¹⁵ Jefferson's bill proclaimed that a citizen "committing an inferior injury does not wholly forfeit the protection of his fellow citizens, but after suffering punishment in proportion to his offense, is entitled to their protection from all greater pain." Randall, supra note 113, at 298. In limiting the death penalty to treason and murder, Jefferson had thus categorically rejected the imposition of capital punishment for the more than one hundred felonies that carried the possibility of death in England's criminal code. Id. at 300. Jefferson, in the very first section of the bill, specifically noted that "cruel and sanguinary laws defeat their own purpose." 2 The Works of Thomas Jefferson, supra note 107, at 395.

¹¹⁶See Banner, supra note 1, at 96. Although the committee Jefferson chaired to revise Virginia's laws met in early 1777, it was not until late 1778 that a busy Jefferson had the bill drafted. The bill was submitted by the Committee of Revisors in 1779, but was tabled, and it was not until 1785 that the bill was actually introduced in the Virginia legislature. By then, Jefferson was serving as America's ambassador in Paris, so it fell to James Madison to present the bill in Jefferson's absence. Id. at 95-96; Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L. Rev. 937, 952 (2003). Madison—who believed Virginia's revisors "were unfortunately misled into some of the specious errors of Beccaria, then in the zenith of his fame"—wrote after the bill's defeat that the bill's fate was sealed by "[t]he rage against Horse stealers." Letter from James Madison to Thomas Jefferson, Feb. 15, 1787, in 11 The Papers of Thomas Jefferson 152 (J. Boyd ed. 1950); Letter from James Madison to Thomas S. Grimke, Jan. 15, 1828, in 9 The Writings of James Madison: 1808-1819 (Gaillard Hunt ed., 1900). For his part, Jefferson later expressed gratitude to "the unwearied exertions of Mr. Madison" in wrestling with the legislature "in opposition to the endless quibbles, chicaneries, perversions, vexations and delays of lawyers and demilawyers." Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 977 (1965).

¹¹⁷ The ancient doctrine of "lex talionis"—an eye for an eye, a tooth for a tooth—demanded an equivalency between the punishment and the offense. "Talio" is Latin for "equivalent to" or "equal." Carmona v. Ward, 576 F.2d 405, 426 & n. 8 (2d Cir. 1978). In his draft autobiography, Jefferson explicitly rejected the lex talionis doctrine and recorded his own recollections of the lost legislative battle: "On the subject of the Criminal law, all were agreed that the punishment of death should be abolished, except for treason and murder; and that, for other felonies should be substituted hard labor in the public works, and in some cases, the lex talionis. How this last revolting principle came to obtain our approbation, I do not remember." See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow "List all Collections" hyperlink; then follow "Jefferson, Thomas ~ Papers ~ 1606-1827" hyperlink; then search "autobiography" in "Search Collection"; then follow "Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27") (last visited Aug. 31, 2009).

¹¹⁸ Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow "List all Collections" hyperlink; then follow "Jefferson, Thomas ~ Papers ~ 1606-1827" hyperlink; then search "autobiography" in "Search Collection"; then follow "Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27") (last visited Aug. 31, 2009).

¹²⁰Id. Apparently, Virginians found unsatisfactory the following provision in the bill targeted at horse thieves: "Whosoever shall be guilty of horse-stealing, shall be condemned to hard labour three years in the public works, and shall make reparation to the person injured." 2 The Works of Thomas Jefferson, supra note 107, at 408.

¹²¹ 1 The Writings of Thomas Jefferson 67 (1903); Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, http://memory.loc.gov/ (follow "List all Collections" hyperlink; then follow "Jefferson, Thomas ~ Papers ~ 1606-1827" hyperlink; then search "autobiography" in "Search Collection"; then follow "Thomas Jefferson, July 27, 1821, Autobiography Draft Fragment, January 6 through July 27") (last visited Aug. 31, 2009). Jefferson also emphasized that the bill passed with modifications, including eliminating "public labor" in favor of "solitary" punishments. Id. Thus, the bill Jefferson drafted—perhaps too progressive for the citizenry Edmund Pendleton had cautioned Jefferson about in 1776 in the midst of the American Revolution—would become law many years after its initial defeat. Randall, supra note 113, at 300.

¹²² 10 The Writings of Thomas Jefferson, 1816-1826, at 58-63 (Paul Leicester Ford, ed., 1899). Among Enlightenment figures, Jefferson was certainly not alone in rejecting death sentences. Jefferson's friend and correspondent, Marquis de Lafayette—a general in the American Revolutionary War who served in the Continental Army under George Washington, and the man Jefferson assisted in drafting the French Declaration of the Rights of Man and of the Citizen—also opposed executions. See Marcello Maestro, Lafayette as a Reformer of Penal Laws, 39 J. of Hist. of Ideas 503, 503 (1978); James Thuo Gathii, Commerce, Conquest, and Wartime Confiscation, 31 Brook. J. Int'l L. 709, 718 n.46 (2006); Roger P. Alford, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639, 656 (2005). "I shall ask for the abolition of the punishment of death," Lafayette famously said, "until I have the infallibility of human judgment demonstrated to me." Michael A. Cokley, Whatever Happened to that Old Saying "Thou Shall Not Kill?": A Plea for the Abolition of the Death Penalty, 2 Loy. J. Pub. Int. L. 67 (2001) (citing Gardner C. Hanks, Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment 63 (1997)); accord Voices Against Death: American Opposition to Capital Punishment 1787-1975, 98 (Philip English Mackey ed., 1976) (indicating Lafayette uttered those words on August 17, 1830).

Lafayette's words against the death penalty are actually sometimes mistakenly attributed to Jefferson. See District Attorney for Suffolk Dist. v. Watson, 411 N.E.2d 1274, 1287 & n.16 (Mass. 1980) (attributing Lafayette's quote to Thomas Jefferson; quoted by Senator Hart, A Bill to Abolish the Death Penalty Under All Laws of the United States: Hearings on S. 1760 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. 14 (1968)).

¹²³ Letter from Thomas Jefferson to John Norvell dated June 11, 1807. When Jefferson sold his prized collection of books to reconstitute the Library of Congress after British troops burned down the U.S. Capitol in 1814, Jefferson had amassed 6487 books, with titles in multiple languages. John D. Bessler, Writing for Life: The Craft of Writing for Everyday Living 170 (2007).

¹²⁴Furman, 408 U.S. at 333 (Marshall, J., concurring) ("Capital punishment has been used to penalize various forms of conduct by members of society since the beginnings of civilization.").

¹²⁶ Gregg Mayer, The Poet and Death: Literary Reflections on Capital Punishment Through the Sonnets of William Wordsworth, 21 St. John's J. Legal Comment. 727, 728 n.8 (2007).

¹²⁸ John D. Bessler, Legacy of Violence: Lynch Mobs and Executions in Minnesota 2 (2003) [hereinafter Bessler, Legacy of Violence]. In modern times, a few American states—in what might be thought of as part of society's long-standing and deep-seated desire for revenge—have actually allowed murder victims' families to hire and pay private attorneys to prosecute murder defendants in capital cases. John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 513 & n.9 (1994).

¹²⁹ Michael P. Scharf & Ahran Kang, Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR, and SCSL, 38 Cornell Int'l L.J. 911, 915 (2005); Hammurabi's Code of Laws (L.W. King trans.), http://eawc.evansville.edu/anthology/hammurabi.htm (last visited Aug. 31, 2009) (containing an English translation of the Code of Hammurabi).

¹³⁰See James G. Hodge, Jr. & Gabriel B. Eber, Tobacco Control Legislation: Tools for Public Health Improvement, 32 J.L. Med. & Ethics 516, 516 (2004); Rudolph J. Gerber, Death Is Not Worth It, 28 Ariz. St. L.J. 335, 336 (1996).

¹³¹ Gerber, supra note 130, at 336.

¹³⁵ Fisher, supra note 42, at 1238; Hirsch, supra note 103, at 1296 n.90; Harry Potter, Hanging in Judgment: Religion and the Death Penalty in England from the Bloody Code to Abolition (1993). Although fifty capital crimes existed in England as of 1688, that number rose to over 200 in the next century. Millett, supra note 34, at 553. By 1791, the year the Eighth Amendment came into force, more than 200 crimes were punishable by death in England. See Harmelin v. Michigan, 501 U.S. 957, 975 (1991). Americans, by contrast, chose to inflict the death penalty for far few crimes. The relative infrequency of executions in America actually prompted the French political writer, Alexis de Tocqueville, to say this in 1840: "[I]n no other country is criminal justice administered with more mildness than in the United States. While the English seem disposed carefully to retain their bloody traces of the Middle Ages in their penal legislation, the Americans have almost expunged capital punishment from their codes." Robert J. Cottrol, Finality with Ambivalence: The American Death Penalty's Uneasy History, 56 Stan. L. Rev. 1641, 1654 (2004) (reviewing Banner, supra note 1) (citing Alexis de Tocqueville, 2 Democracy in America 176 (1945)).

¹³⁶ Arthur W. Campbell, Law of Sentencing § 1.2 (3d ed. 2004); E.P. Thompson, Whigs and Hunters: The Origin of the Black Act 22 (1975). At one time in America, Asia and Europe, capital punishment was even used against animals. Pigs and dogs and a host of other animals were arrested, assigned defense counsel, put on trial and then, upon conviction, ceremoniously executed, often in public. See Jen Girgen, The Historical and Contemporary Prosecution and Punishment of Animals, 9 Animal L. 97, 98-115, 122-27 (2003); Edward P. Evans, The Criminal Prosecution and Capital Punishment of Animals (Faber & Faber 1987) (1906) (describing the execution of animals); Paul Schiff Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 N.Y.U. L. Rev. 288 (1994) (describing the trials of animals).

¹³⁷ George Ryley Scott, The History of Capital Punishment 155-57 (1950); Shannon D. Gilreath, Cruel and Unusual Punishment and the Eighth Amendment as a Mandate for Human Dignity: Another Look at Original Intent, 25 T. Jefferson L. Rev. 559, 565-66 (2003); Jessica Powley Hayden, The Ties that Bind: The Constitution, Structural Restraints, and Government Action Overseas, 96 Geo. L.J. 237, 251 (2007); see also John Laurence, A History of Capital Punishment 28-69, 220-30 (1950) (describing methods of execution).

¹³⁸ Bessler, Death in the Dark, supra note 31, at 33 ("Not only were murderers in England publicly hanged, but they were often sentenced to be publicly dissected in Surgeons' Hall, where spectators crowded the galleries. In other instances, the executed criminal's body was ordered to be hung in chains near the crime scene as a warning to others."). Gibbeting involved hanging the condemned's body in an iron cage so that it would decompose in public view. Baze v. Rees, 128 S. Ct. 1520, 1557 (2008) (Thomas, J., concurring).

¹³⁹ For instance, the penalty for parricide—the murder of one's parents or children—was "scourging the parricide, and then sewing him up in a leathern sack, with a live dog, a cock, a viper, and an ape, and casting him into the sea." State v. Bilansky, 3 Minn. 246, 1859 WL 3085, at *3 (1859). John Adams actually discussed a variation on this form of punishment in 1779 while in Spain: "There was lately a Sentence for Parricide. The Law required that the Criminal should be headed up in a hogshead, with an Adder, a Toad, a Dog and a Cat and cast into the Sea. But I was much pleased to hear that Spanish humanity had suggested and Spanish Ingenuity invented a Device to avoid some part of the Cruelty and horror of this punishment. They had painted those Animals on the Cask, and the dead body was put into it, without any living Animals to attend it to its watery Grave." John Adams Autobiography, part 3, "Peace," 1779-1780, sheet 6 of 18 [electronic edition], Adams Family Papers: An Electronic Archive, Massachusetts Historical Society, http://www.masshist.org/digitaladams/aea/cfm/doc.cfm?id=A3_6 (last visited Aug. 31, 2009).

¹⁴⁰See Lippman, supra note 17, at 275, 277.

¹⁴¹Id. at 281, 291-92, 305-06. Other forms of torture that have been used over time include rape and other forms of sexual abuse, wall-standing, deprivation of food and water, hooding, subjection to loud noises, attacks by dogs, burning with cigarettes, gouging out of eyes, placing pins under finger- and toenails, and the infliction of electric shocks to sensitive areas of the body, including sexual organs.

¹⁴²See Stephanie J. Spencer, A and Others v. Secretary: The Use of Torture Evidence Against Criminal Defendants, 21 Temp. Int'l & Comp. L.J. 205, 206 (2007); see also Joachim Herrmann, Implementing the Prohibition of Torture on Three Levels: The United Nations, the Council of Europe, and Germany, 31 Hastings Int'l & Comp. L. Rev. 437, 438 (2008) ("Fundamental criticism of torture came with the Enlightenment and the Natural Law philosophy, a human rights oriented philosophy, in the 17th and 18th century.").

¹⁴³ The doctrine of "benefit of clergy" saved clerics from execution, but it evolved to spare condemned prisoners who could read scriptures. Eventually, "benefit of clergy" was extended to persons convicted of capital crimes for the first time, though the doctrine was eventually abolished by statute. Alex Ricciardulli, Getting to the Roots of Judges' Opposition to Drug Treatment Initiatives, 25 Whittier L. Rev. 309, 396 (2003); Fisher, supra note 42, at 1239 n.15. People were branded on the thumb so they could not again claim "benefit of clergy." Id. at 1239. Thomas Jefferson described the doctrine this way in commenting on a European manuscript: "This privilege originally allowed to the clergy, is now extended to every man, & even to women. It is a right of exemption from capital punishment for the first offence in most cases. It is then a pardon by the law. In other cases the Executive gives the pardon. But when laws are made as mild as they should be, both those pardons are absurd. The principle of Beccaria is sound. Let the legislators be merciful but the executors of the law inexorable." Observations on the Article etats-Unis Prepared for the Encyclopedie 1, in 5 The Works of Thomas Jefferson 169 (Paul Leicester Ford ed., 1904-05).

¹⁴⁴ Hayden, supra note 137, at 251; Fisher, supra note 42, at 1238-39, 1266 n.151. In colonial New York, a "P"—for perjurer—was branded on the criminal's forehead. Alexandra Bak-Boychuk, Liar Laws: How MPC § 241.3 and State Unsworn Falsification Statutes Fix the Flaws in the False Statements Act (18 U.S.C. § 1001), 78 Temp. L. Rev. 453, 468 (2005); Alan I. Bigel, Justices William J. Brennan, Jr. and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court, 8 Notre Dame J.L. Ethics & Pub. Pol'y 11, 35 & n.130 (1994) (where under a 1786 North Carolina law, horse thieves subject to pillory, whipping, branding, and having their ears cut off, with execution available for a second offense).

¹⁴⁵E.g., James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe 175 (2003); see also Gilreath, supra note 137, at 565-66 (noting that Indians and slaves were sometimes burned to death). Flogging was not declared unconstitutional until the late 1960s. See Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

¹⁴⁶ Meskell, supra note 96, at 841-42.

¹⁴⁷See Aaron R. Jackson, The White House Counsel Torture Memo: The Final Product of a Flawed System, 42 Cal. W. L. Rev. 149, 150 (2005); Laurence A. Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 Wash. U. L.Q. 59, 71 & n.47 (1998); Dawn E. Johnson, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559, 1571 (2007); see also Stephen C. Sieberson, Foreword, 41 Creighton L. Rev. 575, 576 (2008) (noting that in July 2006, President Bush issued an executive order authorizing "enhanced interrogation techniques," including waterboarding). Waterboarding originated with the Spanish Inquisition and was also systematically used by the Khmer Rouge. Daniel Kanstroom, On "Waterboarding": Legal Interpretation and the Continuing Struggle for Human Rights, 28 B.C. Third World L.J. 269, 271 (2008).

¹⁴⁸ Banner, supra note 1, at 10-15; Bessler, Death in the Dark, supra note 31, at 25-28.

¹⁴⁹ The Death Penalty in America: Current Controversies 4 (Hugu Adam Bedau ed., 1997); Douglas, supra note 112, at 156; Kastenberg, supra note 51, at 63.

¹⁵⁰ Millett, supra note 34, at 585; Furman v. Georgia, 408 U.S. 238, 335 (1972) (Marshall, J., concurring). A 1611 compilation of laws for the Jamestown Colony also provided: "He that upon pretended malice, shall murther or take away the life of any man, shall bee punished with death." Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 109 (2004).

¹⁵¹ Millett, supra note 34, at 585; Furman, 408 U.S. at 335 (Marshall, J., concurring).

¹⁵²See Douglas, supra note 112, at 155 & n.93.

¹⁵³ Cottrol, supra note 135, at 1654.

¹⁵⁴ Anthony V. Baker, Slavery and Tushnet and Mann, Oh Why? Finding "Big Law" in Small Places, 26 Quinnipiac L. Rev. 691, 700 n.39 (2008).

¹⁵⁵ Kastenberg, supra note 51, at 63; Massachusetts Sex Ways: Puritan Ideas of Flesh and the Spirit, http://www.austincc.edu/jdikes/1301readings/Sex%20Ways%20ALL.pdf.

¹⁵⁶Banner, supra note 1, at 6. As Thomas Jefferson pointed out in an autobiographical sketch, prejudice against Quakers also occurred in Virginia. See Thomas Jefferson, Autobiography Draft Fragment, Jan. 6-July 27, 1821, available at http://avalon.law.yale.edu/19th_century/jeffauto.asp ("Towards Quakers who came here they were most cruelly intolerant, driving them from the colony by the severest penalties.").

¹⁵⁷See, e.g., Dr. Kam C. Wong, A Comparative Study of Laws of Assembly in China: Historical Continuity or Political Departure, 7 Asian-Pac. L. & Pol'y J. 184 (2006) (noting that 90,000 political dissidents were arrested in China between 1949 and 1955 and that half of them were executed). The execution of women is rare. See Victor L. Streib, Rare and Inconsistent: The Death Penalty for Women, 33 Fordham Urb. L.J. 609 (2006); Elizabeth Rapaport, Equality of the Damned: The Execution of Women on the Cusp of the 21st Century, 26 Ohio N.U. L. Rev. 581 (2000); Elizabeth Rapaport, The Death Penalty and Gender Discrimination, 25 L. & Soc'y Rev. 367 (1991); Elizabeth Rapaport, Some Questions About Gender and the Death Penalty, 20 Golden Gate U. L. Rev. 501 (1990); Victor L. Streib, Death Penalty for Female Offenders, 58 U. Cin. L. Rev. 845 (1990). In my home state, the State of Minnesota, where many people were executed before the death penalty's abolition in 1911, only one woman, Ann Bilansky, was ever executed. Bessler, Legacy of Violence, supra note 128, at 67-92 (discussing the case of Ann Bilansky).

¹⁵⁸ Bessler, Death in the Dark, supra note 31, at 33; accord V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (1994); Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (1992); Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (1948); see also Steven Wilf, Imagining Justice: Aesthetics and Public Executions in Late Eighteenth-Century England, 5 Yale J.L. & Human. 51 (1993-94).

¹⁵⁹ Maestro, supra note 1, at 4; D. Bruce Hindmarsh, The Evangelical Conversion Narrative: Spiritual Autobiography in Early Modern England 31 (2008).

¹⁶⁰ Hirsch, supra note 103, at 1180.

¹⁶¹Bessler, Death in the Dark, supra note 31, at 40-80.

¹⁶² Id. at 31-33, 40-41.

¹⁶³ Douglas, supra note 112, at 146 ("During the first three centuries of the Christian era, the question of the death penalty was quite real for Christians as they were frequent victims of Roman executions. . . . A few early Christian writers did . . . address the issue of the death penalty. Most argued that killing was contrary to Christian ethics and that Christians must play no role in executions, although they conceded that the state did have the right to impose the death penalty."); id. at 147 ("Writing in the fourth century, John Chrysostom opposed the use of the death penalty to control heresy."); id. at 148 ("Pope Gregory I (590-604) commented that '[s]ince I fear God, I shrink from having anything whatsoever to do with the death of anyone.' Pope Nicholas I in the ninth century recommended abolishing the death penalty: 'You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul.'"); id. at 150 ("[S]ome Christians during the Middle Ages opposed the death penalty.").

¹⁶⁴ Beccaria is also credited with founding the modern field of criminology and as being an early opponent of torture. See Beccaria (Thomas trans.), supra note 1, at xvi; Rachel A. Van Cleave, Rape and the Querela in Italy: False Protection of Victim Agency, 13 Mich. J. Gender & L. 273, 280 (2007); Beccaria (Paolucci trans.), supra note 42, at ix; see also Lawrence M. Friedman, A History of American Law 207 (3d ed. 2005) ("The late eighteenth century . . . was a period in which intellectuals began to rethink the premises on which criminal law rested. Great reformers—men like Cesare Beccaria, whose Treatise on Crime and Punishment was written in Italy in 1764—suggested that at least some of the premises were wrong and argued for a more enlightened criminal law.").

¹⁶⁵ Maestro, supra note 1, at 5-6, 9. Beccaria read Montesquieu's Persian Letters, Rousseau's The Social Contract, and the books of many other writers from France, England and Scotland. Beccaria (Thomas ed.), supra note 1, at xxi. For additional biographical information about Beccaria, see Marcello T. Maestro, Voltaire and Beccaria as Reformers of Criminal Law (1972); Coleman Phillipson, Three Criminal Law Reformers: Beccaria, Bentham, Romilly (1970).

¹⁶⁶ Beccaria (Thomas trans.), supra note 1, at xvi-xvii, xl-xli.

¹⁶⁷Id. at xvii; Maestro, supra note 1, at 6, 8-9. The latter society, which operated from 1762 to 1766, is also translated as the Academy of Fisticuffs. It got its name from the pugilistic debates of its members. Beccaria (Young trans.), supra note 1, at x.

¹⁶⁸ Beccaria (Thomas trans.), supra note 1, at xvii-xviii. Count Pietro Verri was the man who suggested that Beccaria take up the subject of crime and punishment. Id. at xxii-xxiii. He was also the person Beccaria relied upon to help him edit On Crimes and Punishments and to work with the publisher in Livorno. Id. at xxii. From the start, Pietro Verri was very impressed by Beccaria, writing in a letter in April 1762: "Among the gifted young men who are forming a distinguished company at my home I will name a certain Marquis Beccaria, of good family . . . whose vivid imagination together with his careful study of the human heart make of him an exceptionally remarkable man." Maestro, supra note 1, at 9-10.

¹⁶⁹ Beccaria (Young trans.), supra note 1, at xviii; Maestro, supra note 1, at 9. Alessandro Verri worked as a prison inspector and thus was able to share valuable insights with Beccaria as Beccaria worked on his book. Beccaria (Thomas trans.), supra note 1, at xxii-xxiii; see also Maestro, supra note 1, at 12.

¹⁷⁰ Beccaria (Young trans.), supra note 1, at x; see also id. ("The Habsburgs had held Lombardy since 1707, but did not begin the process of reform until the end of the War of the Austrian Succession in 1748. The initial impetus in Lombardy, as elsewhere, was the need to improve the administration of finances and the economy in order to reduce the massive deficit created by the cost of war.").

¹⁷¹ Beccaria (Thomas ed.), supra note 1, at xix, xxxvii.

¹⁷² The inaugural edition—its name inspired by coffeehouse conversations—appeared in June 1764 around the same time that On Crimes and Punishments was published. Beccaria (Young trans.), supra note 1, at xix; Maestro, supra note 1, at 46. Beccaria started working on his book in March 1763, and the first edition of On Crimes and Punishments, published anonymously, began circulating in July 1764, first in Tuscany and then in Lombardy. Beccaria (Thomas trans.), supra note 1, at xxii-xxiii.

¹⁷³ Beccaria (Thomas trans.), supra note 1, at xix.

¹⁷⁴Id. at xviii; see Maestro, supra note 1, at 6. Beccaria's father did not approve of the sixteen-year-old Teresa Blasco, the object of Beccaria's affection. This prompted Beccaria—who would ultimately marry his chosen bride against his father's wishes—to take up his pen and write a letter to his father in a futile attempt to gain his father's blessing. "Please be assured that only death can destroy my resolution, and the idea of death doesn't frighten me," the strong-willed Beccaria wrote to his father, adding: "I swear before God that I will not change my decision. I ask you in the name of Jesus Christ to stop putting obstacles to this marriage and to stop doing violence to my will and my conscience." It took quite some time after the marriage took place—and the advice and intervention of his friend, Count Pietro Verri—before Beccaria and his father would reconcile. Id. at 6-8.

¹⁷⁵ Maestro, supra note 1, at 47-50.

¹⁷⁶ Beccaria (Thomas trans.), supra note 1, at xxii-xxiii, 166 n.36; Maestro, supra note 1, at 20; Special Collections Focus: New Acquisitions, Legal Miscellanea (Jacob Burns L. Libr., Washington D.C.) Autumn 2004, at 1-2, available at http://www.law.gwu.edu/Library/Friends/Documents/Legal_Miscellanea/FriendsNwsltr_F04.pdf; Beccaria (Paolucci, trans.), supra note 42, at xiv. The author's anonymity was short-lived. Maestro, supra note 1, at 20. Once Milan authorities expressed no animosity toward the book's author, and in fact welcomed the treatise, Beccaria's identity was revealed. Beccaria (Paolucci, trans.), supra note 42, at xiv. Initially, rumors circulated that the elder Pietro Verri wrote On Crimes and Punishments. These rumors were fueled by the fact that Verri had, in 1763, published another book, Meditations on Happiness, with the same publisher. But to his credit, Verri quickly denied authorship and came to Beccaria's defense. "I suggested the topic to him," Verri acknowledged, but admitted that the book itself "is by the Marquis Beccaria." Beccaria (Young trans.), supra note 1, at xiv; Beccaria (Thomas trans.), supra note 1, at xxii-xxiii; Beccaria (Paolucci trans.), supra note 42, at xiii.

¹⁷⁷ Beccaria (Thomas trans.), supra note 1, at xxv-xxvi. Beccaria told his French translator that, having "heard the clanging chains of superstition and the howls of fanaticism suffocating the faint moans of truth," he felt "compelled to be obscure and to envelop the light of truth in a pious mist" because he "wanted to be a defender of humanity without being its martyr." Id. at xxvi.

¹⁷⁸ Beccaria (Thomas trans.), supra note 1, at 30 ("The law whereby each man should be judged by his peers is a very useful one, for when a citizen's liberty or wealth are at stake, those sentiments that inequality inspires should fall silent.").

¹⁷⁹Id. at 32-37.

¹⁸¹Id. at 32-37.

¹⁸³Id. Many of America's Founding Fathers shared Beccaria's concerns. Writing in 1729, Benjamin Franklin railed against innocent men being "dragg'd into noisome Dungeons, tortured with cruel Irons, and even unmercifully starv'd to Death." 1 J.A. Leo Lemay, The Life of Benjamin Franklin: Journalist, 1706-1730, at 427-28 (2006). In Notes on Virginia, Thomas Jefferson also wrote: "With the Roman, the regular method of taking the evidence of their slaves was under torture. Here it has been thought better never to resort to their evidence. When a master was murdered, all his slaves, in the same house, or within hearing, were condemned to death. Here punishment falls on the guilty only, and as precise proof is required against him as against a freeman." The Life and Selected Writings of Thomas Jefferson 241 (Adrienne Koch & William Peden eds., 1998).

¹⁸⁴ Beccaria (Thomas trans.), supra note 1, at 51.

¹⁸⁶Id. at 56-57. If monarchs left "the ancient laws in place," Beccaria said, "it is because of the infinite difficulty in stripping the venerated rust of many centuries from so many errors." Id. at 57.

¹⁸⁷See id. at 21 ("[T]he violation of the right to security acquired by each citizen must be assigned some of the most severe punishments provided for by the law"); see also id. at 22 ("Attacks against the security and liberty of the citizens are thus among the greatest crimes.").

¹⁸⁸ Beccaria (Thomas trans.), supra note 1, at 26. "The purpose of punishment," Beccaria added, "is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same." Id. "Therefore," Beccaria emphasized, "punishments and the method of inflicting them must be chosen such that, in keeping with proportionality, they will make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned." Id.

¹⁸⁹Id. at 52. Beccaria expressed his preference for life imprisonment over capital punishment stating: "To those who would say that permanent penal servitude is as painful as death, and therefore, equally cruel, I shall reply that, adding up all of the unhappy moments of slavery, it may very well be even more so, but these moments are drawn out over an entire lifetime, while death exerts the whole of its force in a single moment. And this is the advantage of penal servitude, which frightens those who witness it more than those who suffer it, for the former consider the entire sum of unhappy moments, while the latter are distracted from future unhappiness by the unhappiness of the present moment." Id. at 54.

¹⁹⁰ Beccaria (Thomas trans.), supra note 1, at 11. In his book, Beccaria paid considerable homage to Montesquieu, calling him a "great" and "immortal" man. Id. at 10-11. "As the great Montesquieu says," Beccaria wrote, "every punishment that does not derive from absolute necessity is tyrannical." Id. at 11. Beccaria parted ways with Montesquieu on the death penalty, however, as Montesquieu's The Spirit of the Laws allowed executions for homicide and even theft. Id. at xlvi.

¹⁹¹Id. at 54. On that point, Beccaria explained: "Now, there is no one who, upon reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be: therefore, the intensity of perpetual penal servitude, substituted for the death penalty, has all that is necessary to deter even the most determined mind. Indeed, I would say that it has even more: a great many men look upon death with a calm and steady gaze, some out of fanaticism, some out of vanity (which almost always accompanies man beyond the grave), and some out of a final and desperate attempt either to live no longer or to escape from poverty. But neither fanaticism nor vanity survives in fetters or chains, under the cudgel and the yoke, or in an iron cage; and the desperate man finds that his woes are just beginning rather than ending." Id. at 53-54; see also id. at 19 ("If the same punishment is prescribed for two crimes and injure society in different degrees, then men will face no stronger deterrent from committing the greater crime if they find it in their advantage to do so.").

¹⁹³Id. at 52-53.

¹⁹⁷Id. For Beccaria, a government's stability or instability was of great importance in considering what the punishment should be. Id. at 85.

¹⁹⁸Id. at 52. Beccaria saw this as a very narrow exception, writing: "But when the calm rule of law prevails, under a form of government that has the support of the nation, which is well-fortified both externally and internally by both force and opinion (which is perhaps more efficacious than force itself), and in which the power to rule is vested only in the true sovereign and wealth can buy only pleasures not authority, I do not see any need to destroy a citizen, unless his death were the only real way to deter others from committing crimes." Id.

²⁰⁰See Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal System in Austrian Lombardy for Matters Pertaining to Capital Punishment (1792), reprinted in Beccaria (Thomas trans.), supra note 1, at 153-59.

²⁰¹ Beccaria (Thomas trans.), supra note 1, at xvii, 153, 178-79 n.1. Scotti, a ministry of justice official, was one of Beccaria's pupils when Beccaria taught economics at the Scuole Palatine in Milan, and Risi was associated with the Accademia dei Trasformati, the first academy Beccaria had joined prior to joining the Academy of Fists.

²⁰²Id. at 153-55.

²⁰⁵Id. at 154. "[W]e should suppress the death penalty" in favor of "perpetual enslavement," the minority report concluded, recommending that prisons be set up in several cities "so as to make sure that the punishment is clear for all to see." Id. at 155, 158.

²⁰⁶ Maestro, supra note 1, at 35-39. One critic called Beccaria "an enemy of Christianity, a wicked man and a poor philosopher" as well as "a declared enemy of the Supreme Being." Id. at 35. Beccaria's book would spark controversy for decades to come. One of Beccaria's biggest critics was Immanuel Kant, a death penalty advocate. Id. at 128-29. Kant—who believed all murderers should be executed—said Beccaria's anti-death penalty arguments amounted to "sophistry." Immanuel Kant, Metaphysical Elements of Justice 141-42 (John Ladd, trans., 2d ed. 1999).

²⁰⁷ Beccaria (Thomas trans.), supra note 1, at xxiii-xxiv, xxvi; Maestro, supra note 1, at 128-29; see also Beccaria (Paolucci trans.), supra note 42, at xi ("The Church of Rome had placed the treatise on the Index in 1766, condemning it for its extremely rationalistic presuppositions."). In Notes and Observations on the Book Entitled 'On Crimes and Punishments,' Ferdinando Facchinei dismissed Beccaria's book, saying it had not proved "that the death penalty and torture are useless." Beccaria (Thomas trans.), supra note 1, at 100. This scathing review prompted a lengthy written response, also anonymously published, from Pietro and Alessandro Verri. Id. at 102-112. That response, drafted as if it had come from the author of On Crimes and Punishments, id. at 172 n.8, painted the reviewer as out of touch, saying "[m]y accuser scarcely knows the temperament of today's sovereigns." Id. at 107. In a note "To the Reader" that accompanied later editions of On Crimes and Punishments, Beccaria referenced that response, adopting it as his own and emphasizing that he had given "public affirmation of my religion and of my obedience to my sovereign in the reply to the Notes and Observations." Id. at 7-8.

²⁰⁸ Beccaria (Thomas trans.), supra note 1, at xxvii; see also Schwartz & Wishingrad, supra note 75, at 812. Voltaire's 1766 commentary on Beccaria's book was frequently reprinted with it in later editions. "I was engrossed by a reading of On Crimes and Punishments," Voltaire's passionate commentary begins. Beccaria (Thomas trans.), supra note 1, at 113. "It was tyranny in particular," Voltaire declared, "that first decreed the death penalty for those who differed with the established Church on some dogmas." Id. at 115. "It is clear," Voltaire added, "that twenty robust thieves, sentenced to labour on some public works for all of their lives, serve the state through their suffering, and that their deaths will only benefit the public executioner, who is paid to kill people in public." Id. at 128-29. "The compassionate author of On Crimes and Punishments," Voltaire explained, "is more than justified to complain that punishment is too often excessive in relation to the crime, and that sometimes it is even detrimental to the state it was intended to benefit." Id. at 114-15. Reciting the adage that "a hanged man is good for nothing," id. at 128, Voltaire urged his readers to "read and reread the work of this lover of humanity." Id. at 132.

²⁰⁹ Beccaria (Paolucci trans.), supra note 42, at xi; Beccaria (Thomas trans.), supra note 1, at 172 n.6; Maestro, supra note 1, at 4, 36-37.

²¹⁰ Maria Theresa Habsburg (the Holy Roman Empress) of Austria and Grand Duke Leopold of Tuscany both expressed their admiration for Beccaria's ideas. Beccaria (Paolucci trans.), supra note 42, at x; Beccaria (Bellamy ed.), supra note 1, at xxxvii.

²¹¹ Beccaria (Young trans.), supra note 1, at xxviii-xxix. The book also garnered accolades and generated an invitation from French intellectuals for Beccaria to visit Paris. The young Beccaria, however, was not at ease in the limelight. He was persuaded to go to Paris in October 1766 with Alessandro Verri to meet his French admirers, but after spending a few weeks in France, he became anxious and decided to return to Italy to be with his wife and family. Beccaria went on to accept an appointment as a professor of political economy at the Palatine School in Milan and, later, one in the Habsburg administration working as a member of the Supreme Economic Council of Milan. Id. at xxviii; Maestro, supra note 1, at 74, 95-96; Beccaria (Paolucci trans.), supra note 42, at xi; Beccaria (Bellamy ed.), supra note 1, at 129.

²¹² Maestro, supra note 1, at 68-71.

²¹³ Benjamin Franklin would famously remark, "We must all hang together, or assuredly we shall all hang separately." Markus Hxnemörder, The Society of the Cincinnati: Conspiracy and Distrust in Early America 49 (2006).

²¹⁴ Beccaria (Young trans.), supra note 1, at xxix; Special Collections Focus, supra note 126, at 2.

²¹⁵ Banner, supra note 1, at 91; see also Masur, supra note 1, at 175 n.10.

²¹⁶In 1776, the Philadelphia Society for Relieving Distressed Prisoners was formed, and reform efforts picked up steam from there. The Philadelphia Society for Alleviating the Miseries of Public Prisons, for example, was organized in 1787, and anti-death penalty agitation grew stronger over the coming decades. See Jill M. Cochran, Courting Death: 30 Years Since Furman, Is the Death Penalty Any Less Discriminatory? Looking at the Problem of Jury Discretion in Capital Sentencing, 38 Val. U. L. Rev. 1399, 1406 n. 36 (2004); see also Banner, supra note 1, at 88 ("In the 1760s and 1770s . . . many Americans started to question whether death was too great a punishment for property crimes like burglary and grand larceny. By the 1780s and 1790s the propriety of capital punishment for any crime, even murder, was a bitterly contested issue."); Bigel, supra note 144, at 39-40.

²¹⁷ Randall, supra note 113, at 298. Randall writes: "Between 1776 and 1779, Jefferson gave more time to researching the criminal laws than to any other segment of revisions. He systematically studied Anglo-Saxon laws, medieval authorities like Bracton, and the chief foreign writers, including Beccaria. The finely crafted bill he submitted in advance to George Wythe was a model of elegant, plain writing. He wrote footnotes in Anglo-Saxon characters, in Latin, and in old French and English." Id.

²¹⁸ Banner, supra note 1, at 88.

²¹⁹ This happened in response to Pennsylvania's "Whiskey Rebellion" of 1794 and in the wake of "Fries Rebellion" in eastern Pennsylvania (led, ironically, by a militia captain who aided President Washington during the Whiskey Rebellion). It also happened with respect to western Massachusetts' Shays' Rebellion of 1786-87, seeking to halt foreclosures and demanding the printing of money to ease farmers' debts, thus leading to the Constitutional Convention. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1493 (1997); Donald W. Dowd, The Relevance of the Second Amendment to Gun Control Legislation, 58 Mont. L. Rev. 79, 91-92 (1997); Nigel Anthony Sellars, Treasonous Tenant Farmers and Seditious Sharecroppers: The 1917 Green Corn Rebellion Trials, 27 Okla. City U. L. Rev. 1097, 1104-05 (2002).

²²⁰See Jerry Carannante, What to Do About the Executive Clemency Power in the Wake of the Clinton Administration, 47 N.Y.L. Sch. L. Rev. 325, 331 (2003) (noting that George Washington pardoned leaders of the Whiskey Rebellion in 1795, John Adams pardoned members of an insurrection in Pennsylvania, and Thomas Jefferson granted clemency to persons convicted under the Alien and Sedition Act); Jaired Stallard, Abuse of the Pardon Power, 1 DePaul Bus. & Com. L.J. 103, 107-08 & n.32 (2002) (noting that John Adams pardoned John Fries after he was sentenced to death for leading what became known as Fries' Rebellion, in which many homeowners refused to pay taxes and were incarcerated, with Fries leading a mob of approximately 150 men to free tax evaders); Darryl W. Jackson, Jeffrey H. Smith, Edward H. Sisson & Helene T. Krasnoff, Bending Towards Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251, 1263-64 (1999) (noting that President Madison issued a pardon to the Baratarian Pirates of Louisiana who fought to defend New Orleans in 1815); Kathleen Dean Moore, Pardons: Justice, Mercy and the Public Interest 51 (1989) ("In order to fill up the army ranks to fight the War of 1812, President James Madison pardoned deserters and, after the war, pardoned Lafitte's pirates."); Hon. Andrew S. Effron, Military Justice: The Continuing Importance of Historical Perspective, 2000 Army Lawyer 1, 5 (2000) (noting that Madison remitted the death sentence of Brigadier General William Hull after he was sentenced to be shot); George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 Fed. Sen'g. Rep. 212, 214 (Feb. 1, 2004) (noting that Jefferson set aside the death sentence of burglar Samuel Miller and pardoned a slave convicted of having "burglariously broken and entered" a home, and that Madison set aside the death sentence of a career burglar who broke into a store); Walter Nelles, The First American Labor Case, 41 Yale L.J. 165, 171 (1931) (noting John Adams' pardons of rioters sentenced to death).

²²¹ In that era, death was seen as an appropriate punishment for British soldiers or traitors, though not by all. Compare Dowd, supra note 219, at 92 n.50 (Samuel Adams, a leader of the American Revolution, expressed the view that "[i]n monarchy the crime of treason may admit of being pardoned or lightly punished . . . but the man who dares rebel against the laws of a republic ought to suffer death") and Henry Mayer, A Son of Thunder, Patrick Henry and the American Republic 347 (2001) (noting that Patrick Henry helped draft a law allowing the governor to forcibly remove those who refused Virginia's oath of allegiance to positions behind enemy lines and order the death penalty for anyone who refused to go) with Dowd, supra note 219, at 92 n.50 (quoting Thomas Jefferson as saying, "To punish these errors too severely would be to suppress the only safeguard of the public liberty. A little rebellion now and then is a good thing, . . . [A]n observation of this truth should render honest republican governors so mild in their punishment of rebellions as not to discourage them too much."); see also James Haw, John & Edward Rutledge of South Carolina 84, 159 (1997) (noting that John Rutledge, a delegate from South Carolina to the 1787 Constitutional Convention and that state's first leader, signed an act prescribing the death penalty for anyone who aided the British cause and once suggested that "to stop the Enemy from burning Houses" a British regular officer be hanged for every house burned); James G. Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those Convicted of Treason, 45 U. Pitt. L. Rev. 99, 117 n.78 (1983) ("After a young slave led an unsuccessful revolt in 1800, James Monroe wrote Jefferson, asking him how the many hundreds of slaves should be punished. Jefferson recommended that Monroe exercise whatever mercy he could.").

²²² George Washington believed executions deterred crime and preserved order. Banner, supra note 1, at 91; Jeffrey L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, 73 U. Colo. L. Rev. 1, 6 n.26 (2002); see also Letter from George Washington to William Heath (Nov. 5, 1780) in 20 The Writings of George Washington 298 (John C. Fitzpatrick ed., 1937) ("Previous to yours of the 1st. Inst. I had requested you, to use your discretion in the execution of such of the prisoners under sentence of death, as you considered proper objects for Capital punishment."); Letter from George Washington to William Livingston (Jan. 12, 1782) in 23 The Writings of George Washington 444-445 (John C. Fitzpatrick ed., 1937) ("It is in vain to expect that pernicious and growing traffic will ever be stopped, untill [sic] the States pass laws agt. it, making the penalty, death. This I long ago foresaw and recommended."); Letter from George Washington to Horatio Gates (Feb. 14, 1778) in 10 The Writings of George Washington 456, 457 (John C. Fitzpatrick ed., 1937) ("[I] do not conceive I could with propriety, alter the capital punishment into a corporal one."); Letter from George Washington to Anne Cesare, Chevalier de la Luzerne (Nov. 13, 1782) in 25 The Writings of George Washington 334 (John C. Fitzpatrick ed., 1937) ("I have at various periods of the War written to Congress and to the States, endeavouring [sic] to convince them of the necessity of passing the most rigorous Laws to prevent the Inhabitants from furnishing the Enemy with Provisions. I will write them again, and will use every argument I am master of for that purpose. In all other Nations, I believe, the persons guilty of that crime are punished with death . . ."). Accord 6 The Writings of George Washington 497 (John C. Fitzpatrick ed., 1937), 12 id. at 14, and 13 id. at 135, 139-40 (letters of George Washington confirming or ordering the execution of spies); William Winthrop, Military Law and Precedents 22 (2d ed. 1920) (noting that the Continental Congress passed a law in 1776 to subject spies to the punishment of death under the Articles of War).

²²³ Letter from George Washington to William Smallwood (Feb. 21, 1778) in 10 The Writings of George Washington 487, 488 (John C. Fitzpatrick ed., 1937) (discussing capital punishment in the context of "the operation of our articles of war, with regard to intentional, or attempted desertion"); Letter from George Washington to John Lacey Jr. (Feb. 21, 1778) in 10 The Writings of George Washington 492 (John C. Fitzpatrick ed., 1937) ("If there is any of them, who appear to be great offenders, and to be proper objects for Capital punishment, you will send them to Head Quarters with the witnesses, that he may be tried by a General Court Martial here."); Letter from George Washington to William Livingston (Apr. 26, 1778) in 11 The Writings of George Washington 310 (John C. Fitzpatrick ed., 1937) (saying "it is the practice of War" to execute "immediately" any "Deserters attending Flags").

²²⁴ For instance, Washington wrote a letter in April 1778 to express his preference for "detention and confinement" over "capital punishment" for an enlisted soldier. Letter from George Washington to William Livingston (Apr. 26, 1778), supra note 223. He also penned a clemency order in February 1780 for another soldier. Letter from George Washington to Lewis Nicola (Feb. 5, 1780) in 17 The Writings of George Washington 491 (John C. Fitzpatrick ed., 1937). In the 1780 letter, Washington's merciful act was tempered by the fact that he sought to ensure the prisoner's "future good conduct" by authorizing the letter's recipient to keep the pardon secret "for a few days" before letting the prisoner know his life had been spared. Id.

²²⁵ Despite his approval of executions, George Washington wrote to the Continental Congress on January 29, 1778 to propose more proportionate offenses to reform army discipline: "Several new regulations will, I imagine, be found useful in the articles of war; which the Judge Advocate, from his official experience of the deficiency, can more accurately indicate. One thing, we have suffered much from, is the want of a proper gradation of punishments: the interval between a hundred lashes and death is too great and requires to be filled by some intermediate stages. Capital crimes in the army are frequent, particularly in the instance of desertion: actually to inflict capital punishment upon every deserter or other heinous offender, would incur the imputation of cruelty, and by the familiarity of the example, destroy its efficacy; on the other hand to give only a hundred lashes to such criminals is a burlesque on their crimes rather than a serious correction, and affords encouragement to obstinacy and imitation. The Courts are often in a manner compelled by the enormity of the facts, to pass sentences of death, which I am as often obliged to remit, on account of the number in the same circumstances, and let the offenders pass wholly unpunished. This would be avoided, if there were other punishments short of the destruction of life, in some degree adequate to the crime; and which might be with propriety substituted. Crimes too are so various in their complexions and degrees, that to preserve the just rule of proportion, there ought to be a gradual scale of punishments; in order to which, whipping should be extended to any number at discretion, or by no means, limited lower than five hundred lashes." Letter from George Washington to Continental Congress Conference Committee (Jan. 29, 1778) in 10 The Writings of George Washington 362, 402-03 (John C. Fitzpatrick ed., 1937).

²²⁶ Having read Beccaria's views on proportionate punishments, George Washington wrote to the Continental Congress on August 31, 1778, saying this about the use of capital punishment: "The frequent condemnations to capital punishment, for want of some intermediate one between that and a Hundred lashes (the next highest under our present military articles) and the necessity of frequent pardons in consequence, induced me a few days ago, to lay the matter before a Board of Officers for them to consider, whether some mode might not be devised of equal or greater efficacy for preventing crimes and punishing Delinquents when they had happened, less shocking to humanity and more advantageous to the States, than that of Capital execution. The inclosed paper No. 3, contains the opinion of the Board upon the subject, which with all deference I submit to the consideration of Congress and doubt not but they will adopt the expedient suggested, if it shall appear in anywise calculated to promote the service. I will only observe before I conclude upon this occasion, that when I call the Board to consult upon the point, there were Eleven prisoners under sentence of death, and probably many more for trial, in the different guards on charges that would effect their lives." Letter from George Washington to Continental Congress (Aug.31, 1779) in 10 The Writings of George Washington from the Original Manuscript Sources, 1745-1799 (John C. Fitzpatrick ed., 1937), available at http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field (DOCID+@lit(gw120409). The enclosure, Paper No. 3, was a copy of the proceedings of the Council of General Officers dated August 20, 1778. That document noted that "his Excellency" had requested the Council's sentiments on "the expediency of punishment by hard and severe labor, instead of death," and in it, the Council reported that it was unanimously decided that "severe hard labour be recommended . . . to be the intermediate punishment between one hundred Lashes, and Death." See Council of General Officers, Paper No. 3, http://memory.loc.gov/mss/mgw/mgw4/051/0400/0456.jpg (last visited Aug. 31, 2009).

²²⁷ The Papers of George Washingon, Washington's Seventh Annual Message to Congress, 8 Dec. 1795, Philadelphia, http://gwpapers.virginia.edu/documents/union/state7.html (last visited Aug. 31, 2009).

²²⁸ This seems particularly clear from a communication Washington sent to the Continental Congress just days after the signing of the Declaration of Independence. In discussing the capture, plunder and murder of some Americans by Indians, Washington expressed a willingness to resort to capital punishment to punish those posing a challenge to the young nation's security: "The Inhuman Treatment to the whole, and Murder of part of our People after their Surrender and Capitulation, was certainly a flagrant violation of that Faith which ought to be held sacred by all civilized nations, and founded in the most Savage barbarity. It highly deserved the severest reprobation, and I trust the Spirited Measures Congress have adopted upon the Occasion, will prevent the like in future: But if they should not, and the claims of humanity are disregarded, Justice and Policy will require recourse to be had to the Law of retaliation, however abhorrent and disagreeable to our natures in cases of Torture and Capital Punishments." Letter from George Washington to Continental Congress (July 15, 1776) in 5 The Writings of George Washington 362, 279-80 (John C. Fitzpatrick ed., 1937).

²²⁹ Alexander Hamilton, who believed in duels to resolve insults and who was famously killed in one, saw death sentences as part of the fabric of the criminal law. For example, he applauded the 1776 execution of Thomas Hickey, a soldier who plotted to murder George Washington. See Roger P. Alford, Roper v. Simmons and Our Constitution in International Equipoise, 53 UCLA L. Rev. 1, 11 n.48 (2005).

²³⁰ Hamilton defended the presidential pardoning power in Federalist Paper No. 74, saying: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance." The Federalist No. 74 (Alexander Hamilton). In 1787, James Wilson also argued that "[p]ardon is necessary for cases of treason." 2 Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 549 (1881); Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 591 n.132 (1991).

²³¹ XXIII The Papers of Alexander Hamilton 496 (Harold C. Syrett ed.,1976); see also id. at 275-76 (noting Hamilton's approval of a death sentence by shooting for a deserter, private Joseph Perkins).

²³² Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in 7 The Works of Alexander Hamilton 100 (Henry Cabot Lodge ed., G. P. Putnam's Sons, 1971) (1904).

²³⁴ The Papers of Alexander Hamilton, supra note 231, at 286.

²³⁵ Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in The Works of Alexander Hamilton, supra note 232, at 100-01; Bernard C. Steiner, Life and Correspondence of James McHenry: Secretary of War under Washington and Adams 4 (2007).

²³⁶ Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in The Works of Alexander Hamilton, supra note 232, at 100-01.

²³⁷Id. Hamilton also opposed the execution of Charles Asgill, who was once slated to be executed in retaliation for the execution of another man, Joshua Huddy, a militia artillery captain. Masur, supra note 1, at 56-58.

²³⁸ Letter from Alexander Hamilton to Secretary of War (July 29, 1799) in The Works of Alexander Hamilton, supra note 232, at 101.

²³⁹ Steiner, supra note 235, at 302.

²⁴⁰See Marty D. Matthews, Forgotten Founder: The Life and Times of Charles Pinckney, at xvi, 53, 94, 121 (2004) (noting that Charles Pinckney, a signer of the Constitution, had sought to implement penal reform by restricting capital punishment to only the severest of offenses, that "the death penalty for slaves was not uncommon," and that Pinckney called for it to be a capital offense to introduce "free person[s] of color or slave" from the West Indies).

²⁴¹ Letter from Pierce Butler to Colonel Gunn (Aug. 31, 1791) in The Letters of Pierce Butler 1790-1794: Nation Building and Enterprise in the New American Republic 113 (Terry W. Lipscomb ed., 2008).

²⁴²See Mildred Crow Sargent, 2 William Few, A Founding Father: A Biographical Perspective of Early American History 893, 898, 1055 (2006) (noting a murderer Few sentenced to die on March 11, 1797, a horse thief Few sentenced to die on May 26, 1797, and citing Executive Minutes of Georgia, 1796-97, at 155, 164-65, 206-07 (Georgia Division of Archives and History)). James Few was killed after the Battle of Alamance, on May 16, 1771, in North Carolina, leaving behind twins that needed childrearing. Id. at 601; see also Jim Wise, Durham: A Bull City Story 24 (2002) ("Colonial administration in the back country proved oppressive and corrupt. In 1771, the Fews joined many of their neighbors in the Regulator uprising, smashed by Governor William Tryon and the provincial militia at the Battle of Alamance. William Few's brother James was hanged, the family farm was destroyed, and his father fled to Georgia."); The Way We Lived in North Carolina 102 (Joe A. Mobley, ed.) (2003) ("One of the six hanged was James Few, brother of William Few. Though a Quaker, James proclaimed himself 'sent by heaven to release the world of oppression and to begin in Carolina.' The remaining Few family moved to Georgia, where William became a leader in the American Revolution.").

²⁴³ Eugene G. Wanger, Historical Reflections on Michigan's Abolition of the Death Penalty, 13 T.M. Cooley L. Rev. 755, 757-58 (1996). Several signers of the Declaration of Independence opposed capital punishment either categorically or for certain crimes. See Jupiter, supra note 9, at 478. Dr. Rush, however, was certainly not the first American to advocate the total or partial abolition of capital punishment. See Banner, supra note 1, at 100; Furman, 408 U.S. at 336 (Marshall, J., concurring). Indeed, in the 1600s, Quaker William Penn, Pennsylvania's founder and first governor, had compiled a criminal code providing that the death penalty would only be inflicted for treason and deliberate murder. But Queen Anne thought Penn's approach so at variance with English custom and law that she annulled it. Maestro, supra note 1, at 16-17, 138; Schwartz & Wishingrad, supra note 75, at 820-21; see also Furman, 408 U.S. at 335-36 (Marshall, J., concurring).

²⁴⁴ Rush's March 9 essay, "An Enquiry into the Effects of Public Punishments upon Criminals, and upon Society," appeared in the American Museum magazine. See Benjamin Rush, An Enquiry into the Effects of Public Punishments upon Criminals, and upon Society, 2 American Museum 142, 142-43 (Mar. 9, 1787); Wanger, supra note 243, at 758. See also Douglas, supra note 112, at 159 ("Rush challenged the widely held view that the executioner was God's servant, labeling it sacrilegious for public officials to claim that they shared with God the right to punish by death."). Beccaria and Rush—though both death penalty foes—did part ways in one respect. Whereas Beccaria favored public punishments, Beccaria (Thomas ed.), supra note 1, at 86, Rush favored private ones. Bessler, Death in the Dark, supra note 31, at 40. Rush asked rhetorically, "How often do we find pockets picked under a gallows, and highway robberies committed within sight of the gibbet?" Id.

²⁴⁵ Banner, supra note 1, at 332 n.32; Schwartz & Wishingrad, supra note 75, at 823. This essay, along with Rush's first essay, was reprinted by Rush, with revisions, in pamphlet form before his death in 1813. The 1806 text of both essays can be found at Benjamin Rush, Essays Literary, Moral and Philosophical 79-105 (Michael Meranze ed. 1988).

²⁴⁶ Wanger, supra note 243, at 757-58. Even before the publication of Dr. Rush's essays, Pennsylvania had witnessed some reform. See Banner, supra note 1, at 97 ("Pennsylvania's 1786 penal reform, the first of many that would follow in the United States over the course of the next century, abolished capital punishment for robbery, burglary, sodomy, and buggery."); see also id. at 98 ("Between 1794 and 1798 five states abolished the death penalty for all crimes other than murder, and three of the five even abolished it for certain kinds of murder. The first was Pennsylvania, which in 1794 provided prison sentences in place of death for treason, manslaughter, rape, arson, and counterfeiting. Murder remained the sole capital crime, and even murder, for the first time in any jurisdiction with a legal system based on that of England, was divided into degrees. . . . Two years later Virginia enacted a similar statute.").

²⁴⁷ Binder, supra note 150, at 119. Dr. Rush never credited Voltaire with influencing his views on capital punishment. See Kastenberg, supra note 51, at 69. However, Dr. Rush specifically made reference to Beccaria and his thinking was clearly influenced by European ideas. See, e.g., id. at 68-69.

²⁴⁸ In 1790, Pennsylvania—with its heavy Quaker influence—abolished the death penalty for robbery, burglary, and sodomy. Friedman, supra note 61, at 73. Also, New York governors unsuccessfully battled New York's legislature over the issue, and Edward Livingston—an American lawyer, who later became Secretary of State and Andrew Jackson's Minister to France—proposed the total abolition of the death penalty in a draft penal code for the State of Louisiana. Furman, 408 U.S. at 337 (Marshall, J., concurring); see also Banner, supra note 1, at 138 (noting that Edward Livingston of Louisiana pressed for the abolition of capital punishment in the 1820s and 1830s).

Beccaria's most important disciple in New York was Thomas Eddy. See Edwin G. Burrows & Mike Wallace, Gotham: A History of New York City to 1898, 366 (1999); see also United States v. Blake, 89 F. Supp.2d 328, 342-43 (E.D.N.Y. 2000) ("At the end of the eighteenth century, New York had an extremely long list of capital crimes including housebreaking and malicious mischief; lesser criminals were subject to corporal punishment or—if granted by a magistrate—confinement at hard labor." Eddy proposed changing those laws in the mid-1790s and the reform efforts led to the 1796 abolition of corporal punishment and "the reduction of capital offenses to treason, murder, and theft from church.").

²⁴⁹Furman, 408 U.S. at 337-38 (Marshall, J., concurring); see also Beth A. Berkowitz, Negotiating Violence and the Word in Rabbinic Law, 17 Yale J.L. & Human. 125, 127 (2005) ("Criticism of the death penalty in America can be traced back to the Founding Fathers, and in the 1830s and 1840s penal reform organizations were created. The Bible became the field on which the debates were fought, with each side using it as justification for their view.").

²⁵⁰ Bessler, Death in the Dark, supra note 31, at 44. Charles Spear, a Massachusetts minister, published Essays on the Punishment of Death, an anti-death penalty book, and became a leading nineteenth-century abolitionist. Douglas, supra note 112, at 160.

²⁵¹See Wanger, supra note 243, at 765. Michigan's law, which provided that first-degree murder "shall be punished by solitary confinement at hard labor in the state prison for life," actually took effect on March 1, 1847. Id. at 765 n.59. The imposition of lifetime solitary confinement was later abandoned. See Harold M. Helfman, A Forgotten Aftermath to Michigan's Abolition of Capital Punishment, 40 Mich. Hist. Mag. 203, 203-14 (1956) (providing an overview of the history of the deathy penalty in Michigan).

²⁵² Bessler, Death in the Dark, supra note 31, at 44; Furman, 408 U.S. at 338 (Marshall, J., concurring).

²⁵³ Bessler, Death in the Dark, supra note 31, at 45; Kirchmeier, supra note 222, at 8 ("During the war, any tragic aspects of the execution of criminals paled in comparison to the deaths of the heroes in the fields."). Wars have frequently slowed anti-death penalty agitation. Id. at 102 (pointing to prior wars that have halted moratorium movements).

²⁵⁴See, e.g., Philip English Mackey, Voices Against Death: American Opposition to Capital Punishment 1787-1975 (1976); see also Louis Filler, Movements to Abolish the Death Penalty in the United States, Annals Am. Acad. Pol. & Soc. Sci. (Nov. 1952).

²⁵⁵ Marvin H. Bovee, Christ and the Gallows; or, Reasons for the Abolition of Capital Punishment (1869); Bessler, Death in the Dark, supra note 31, at 46.

²⁵⁶ Bessler, Death in the Dark, supra note 31, at 46.

²⁵⁷ Kirchmeier, supra note 222, at 10; see also John F. Galliher, et al., America Without the Death Penalty: States Leading the Way (Northeastern, 2002) (examining why twelve states and the District of Columbia do not impose the death penalty); John Galliher, Gregory Ray & Brent Cook, Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century, 83 J. of Crim. L. & Criminology 538 (1992) (cataloging the abolishment and reinstatement of the death penalty in American states).

²⁵⁸ As one well-respected scholar points out: "In time of war, use of the death penalty generally becomes more frequent and the safeguards surrounding its use less stringent." Schabas, supra note 3, at 211. "[I]t is in time of war when the greatest abuse of the death penalty occurs. Criteria of expediency and State terror stampede panicked governments towards inhumane excesses that would be unthinkable in time of peace." Id. at 369.

²⁵⁹ For example, Albert Camus, a death penalty foe, published his essay "Reflexions sur la guillotine" in the 1950s. Oliver Todd, Albert Camus: A Life 359, 364 (Benjamin Ivry trans., 1997). In that time frame, Arthur Koestler—another writer—also published an influential anti-death penalty title. See Arthur Koestler, Reflections on Hanging (1957).

²⁶⁰ Kirchmeier, supra note 222, at 11-12. See Corinna Barrett Lain, Furman Fundamentals, 82 Wash. L. Rev. 1, 19 (2007) (footnotes omitted) ("In the 1930s, the average number of executions per year was 167; in the 1940s, the average was 128. By the 1950s, that figure had dropped to 72. In 1962, there were only 47 executions, and the numbers plummeted from there—1963 had 21 executions, 1964 had 15, 1965 had 7, 1966 had one, 1967 had two, and from 1968 until the death penalty was reinstated in 1976, there were none.").

²⁶¹ Kirchmeier, supra note 222, at 11-12.

²⁶² The Death Penalty in America (Hugo Adam Bedau, ed., 2d. ed. 1967).

²⁶³ Kirchmeier, supra note 222, at 12.

²⁶⁵ Witherspoon v. Illinois, 391 U.S. 510, 520 (1968).

²⁶⁶ The NAACP played an important role in Furman, just as it had in challenging lynchings prior to that time. Graham v. Collins, 506 U.S. 461, 481 (1993) (Thomas, J., concurring) ("The unquestionable importance of race in Furman is reflected in the fact that three of the original four petitioners in the Furman cases were represented by the NAACP Legal Defense and Educational Fund, Inc. This representation was part of a concerted 'national litigative campaign against the constitutionality of the death penalty' waged by a small number of ambitious lawyers and academics on the Fund's behalf. Although their efforts began rather modestly, assisting indigent black defendants in isolated criminal cases—usually rape cases—where racial discrimination was suspected, the lawyers at the Fund ultimately devised and implemented (not without some prompting from this Court) an all-out strategy of litigation against the death penalty.") (citing Robert A. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L. Rev. 1741, 1745 (1987)); see generally Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (1973); Eric L. Muller, The Legal Defense Fund's Capital Punishment Campaign: The Distorting Influence of Death, 4 Yale L. & Pol'y Rev. 158 (1985)).

²⁶⁷ 408 U.S. 238 (1972); see also Meltsner, supra note 266.

²⁶⁸ For a recent summary of the Supreme Court's death penalty jurisprudence, see James S. Liebman, Slow Dancing With Death: The Supreme Court and Capital Punishment, 1963-2006, 107 Colum. L. Rev. 1 (2007).

²⁶⁹ Randall Coyne & Lyn Entzeroth, Capital Punishment and the Judicial Process 148 (3d ed. 2006).

²⁷⁰Furman, 408 U.S. at 240.

²⁷¹Id. at 239. Whether an action is "unusual"—one of the terms used in the Eighth Amendment—depends upon "the frequency of its occurrence or the magnitude of its acceptance." Thompson v. Oklahoma, 487 U.S. 815, 822, n.7 (1988) (plurality opinion); compare Furman, 408 U.S. at 377 (Burger, C.J., dissenting) ("There was no discussion of the interrelationship of the terms 'cruel' and 'unusual,' and there is nothing in the debates supporting the inference that the Founding Fathers would have been receptive to torturous or excessively cruel punishments even if usual in character or authorized by law.") with Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958) (plurality opinion) ("Whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. . . . If the word 'unusual' is to have any meaning apart from the word 'cruel,' however, the meaning should be an ordinary one, signifying something different from that which is generally done."). The proper interpretation of "unusual," at least from a constitutional perspective, has been highly contentious. Compare John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1745 (2008) (arguing that the word "unusual" means contrary to "long usage" and that the word "unusual" was included in the Eighth Amendment to direct courts to give scrutiny to new or innovative punishments that deviated from long-established punishments) and Joshua L. Shapiro, And Unusual: Examining the Forgotten Prong of the Eighth Amendment, 38 U. Mem. L. Rev. 465, 471-72 (2008) (arguing that "the appropriate benchmark for determining whether a punishment is unusual is when three-fourths of the states forbid its imposition") with Tom Stacy, Cleaning Up the Eighth Amendment Mess, 14 Wm. & Mary Bill Rts. J. 475, 486 (2005) ("An 'unusual' punishment is one that is out of the ordinary, one that is not regularly employed."); id. at 503 (arguing that "the available evidence indicates that the Founders understood" the terms "cruel" and "unusual" to "capture the same meaning," and that "[t]he history of the English Bill of Rights reinforces the conclusion that the phrases 'cruel and unusual' and 'cruel or unusual' were understood to capture the same meaning").

²⁷² Nicci Lovre-Laughlin, Lethal Decisions: Examining the Role of Prosecutorial Discretion in Capital Cases in South Dakota and the Federal Justice System, 50 S.D. L. Rev. 550, 555 n.44 (2005).

²⁷³ Bessler, Death in the Dark, supra note 31, at 131. Shortly before the Furman decision, the California Supreme Court held that capital punishment violated that state's constitution. People v. Anderson, 100 Cal. Rptr. 152 (1972). That California decision had already reduced America's death row population by more than a hundred people. Furman, 408 U.S. at 314 n.1 (Marshall, J., concurring).

²⁷⁴Furman, 408 U.S. at 256-57 (Douglas, J., concurring). Racial discrimination in the administration of capital punishment dates back many centuries. Slave codes enacted in the 1600s, for example, punished black offenders more harshly than white offenders and made crimes committed by slaves death-eligible—something not always true for whites. Capital Punishment in the United States: A Documentary History 2 (Bryan Vila & Cynthia Morris, eds., 1997).

²⁷⁵Furman, 408 U.S. at 245 (Douglas, J. concurring). Douglas pointed out that all three men were black and went on to describe each man's background. Lucious Jackson, Jr., 21, was said to have "escaped from a work gang" after being convicted for auto theft; William Furman, 26, only "finished the sixth grade" and had been shown to need psychiatric care; and Elmer Branch had "well below the average IQ of Texas prison inmates," the equivalent of five and half years of grade school, and was "in the lowest fourth percentile of his class." Id. at 252-53.

²⁷⁶Furman, 408 U.S. at 270 (Brennan, J., concurring). Brennan noted that one of the historic concerns behind the clause was "a safeguard against arbitrary punishments." Id. at 274.

²⁷⁸Id. at 290-91, 304, 293. "When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year," Brennan wrote, "the inference is strong that the punishment is not being regularly and fairly applied." Id. at 293.

²⁸⁰Furman, 408 U.S. at 306, 309 (Stewart, J., concurring).

²⁸¹Id. at 309-10.

²⁸⁴Furman, 408 U.S. at 312-13 (White, J., concurring). White found that "the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313.

²⁸⁵Id. at 315 (Marshall, J., concurring).

²⁸⁹Id. at 365-66.

²⁹⁰Id. at 358-59.

²⁹¹See Michael Mello, Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall (1996); Bigel, supra note 144, at 13; Michael Mello, Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 Fla. St. U. L. Rev. 591 (1995).

²⁹²Furman, 408 U.S. at 345 (Marshall, J., concurring).

²⁹³Id. at 361. The notion that an informed electorate would find the death penalty unacceptable has been termed "the Marshall hypothesis." See Austin Sarat & Neil Vidmar, Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. Rev. 171 (1976).

²⁹⁴Furman, 408 U.S. at 369 (Marshall, J., concurring).

²⁹⁶Id. The concept of judicial review of legislative enactments by the Supreme Court dates back more than 200 years. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

²⁹⁷Furman, 408 U.S. at 329 (Marshall, J., concurring).

²⁹⁹Id. at 361-62.

³⁰⁰Id. at 361 & n.145.

³⁰³Id. at 394 (Burger, C.J., dissenting).

³⁰⁵ 402 U.S. 183 (1971). The Supreme Court held in McGautha that the Fourteenth Amendment was not violated by giving jurors the discretion to decide a criminal defendant's fate. Id. at 196. The Eighth Amendment was not at issue in the case.

³⁰⁶Id. at 207. In the United States, the common-law rule imposing mandatory death sentences on all convicted murderers had been unpopular. To avoid the problem of jury nullification, state legislatures had granted juries—who, over time, gradually took over capital sentencing responsibilities from judges—virtually unlimited discretion. Furman, 408 U.S. at 245-47 (Douglas, J., concurring); McGautha, 402 U.S. at 199-200 (noting this trend in the law, which began in the 1830s). Today, of course, juries continue to play the predominant role in death penalty cases in deciding who lives and who dies. See Ring v. Arizona, 536 U.S. 584 (2002).

³⁰⁷Furman, 408 U.S. at 402 (Burger, C.J., dissenting).

³⁰⁹Id. Although Chief Justice Burger disagreed with the majority's ruling, he announced that he was "not altogether displeased that legislative bodies have been given the opportunity, and indeed unavoidable responsibility, to make a thorough reevaluation of the entire subject of capital punishment." Id. at 403. "If legislatures come to doubt the efficacy of capital punishment," he added, "they can abolish it, either completely or on a selective basis." Id. at 404.

³¹⁰Furman, 408 U.S. at 418 (Powell, J., dissenting).

³¹¹Furman, 408 U.S. at 468 (Rehnquist, J., dissenting).

³¹²Furman, 408 U.S. at 414 (Blackmun, J., dissenting).

³¹⁶Id. at 405-06.

³¹⁷ Norval Morris, Foreword in Maestro, supra note 1, at vii-x.

³¹⁸ David Von Drehle, Among the Lowest of the Dead: Inside Death Row 162 (1996).

³¹⁹ Bessler, Death in the Dark , supra note 31, at 133.

³²⁰ 428 U.S. 153 (1976).

³²¹ Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion); see also Hudson v. McMillian, 503 U.S. 1, 5 (1992) ("[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment.").

³²²See Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

³²³ 428 U.S. 262 (1976).

³²⁴ 428 U.S. 242 (1976).

³²⁵See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urb. L.J. 347, 374-75 (1999) ("[I]n a set of five capital cases in 1976, the Supreme Court struck down mandatory death penalty statutes in Woodson and Roberts, while it upheld 'guided discretion' statutory structures in Gregg, Proffit, and Jurek.") (citations omitted). According to the Supreme Court: "Gregg instructs that capital punishment is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes." Kennedy v. Louisiana, 128 S. Ct. 2641, 2661 (2008).

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