Carol Steiker
Appearances
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We The People: Cruel and Unusual Punishment
The framers saw themselves not only as learning from the past, but as going further and breaking from the past. These guys were revolutionaries. I mean, we think of them today as like old dead guys, you know, who are on the dollar bill or whatever. But they really saw themselves as revolutionaries in many ways, including in punishment practices.
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We The People: Cruel and Unusual Punishment
At least one person during the discussions of the Eighth Amendment, proposed Eighth Amendment in Congress, said, well, what does this mean exactly?
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We The People: Cruel and Unusual Punishment
So there was some question about, like, what does this language exactly mean and which practices that we now accept as sometimes necessary are going to be deemed to be cruel and unusual going forward?
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We The People: Cruel and Unusual Punishment
Utah was not yet a state. It was a federal territory. And it was settled then, as now, by Mormons. And Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders. So he didn't want to use hanging because you don't bleed when you're hanged, but you do bleed when you're shot. And so Mormon territory used the firing squad as a form of execution.
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We The People: Cruel and Unusual Punishment
And he was sentenced to an incredibly harsh punishment. He was sentenced to 15 years of hard labor, being chained at all times, his wrists to his ankles. And then followed by a form of civil death in which he would be under surveillance and deprived of the right to vote or hold any office until the end of his life.
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We The People: Cruel and Unusual Punishment
Something that was a Philippine punishment, not really something that you would have found in the United States at the time. And the Supreme Court said, wow, that's not something we see every day. That's not something we do over here.
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We The People: Cruel and Unusual Punishment
So sort of patting, you know, us Americans as being more advanced, if you will.
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We The People: Cruel and Unusual Punishment
And there's some really interesting language written in Weems. And this is the language. I'm going to read it to you. Legislation, both statutory and constitutional, is enacted from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes.
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We The People: Cruel and Unusual Punishment
Therefore, a principle to be vital must be capable of wider application than the mischief that gave it birth.
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We The People: Cruel and Unusual Punishment
In former times, being put in the stocks was not considered as necessarily infamous. But at the present day, it might be thought an infamous punishment.
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We The People: Cruel and Unusual Punishment
It's weirdest to apply originalism to the sort of deliberately vague provisions of the Constitution or what some have called more poetically the majestic generalities of the Constitution, like due process of law or equal protection of the laws or unreasonable searches and seizures, which has been interpreted to be about reasonable expectations of privacy or cruel and unusual punishments.
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We The People: Cruel and Unusual Punishment
When the Constitution says the president needs to be 35 years old, that's not a majestic generality. But when the Constitution says no cruel and unusual punishments, and even at the time it's being debated, the ratifiers are saying, not entirely sure what that means. You know that it's being passed as a generality to be given content over time.
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We The People: Cruel and Unusual Punishment
I think Weems gives a very poetic answer. and ringing endorsement to a living constitutionalist view. That the evil can't be specifically whatever it was at the time of the language. It has to be given a wider interpretation than the mischief that gave it birth. And Trope versus Dulles doubles down on that.
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We The People: Cruel and Unusual Punishment
Stripped of his American citizenship. But he didn't have any other citizenship. So he'd now be a stateless person. With really no right to live anywhere and be part of any political community.
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We The People: Cruel and Unusual Punishment
And the Supreme Court said, that's cruel and unusual punishment.
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We The People: Cruel and Unusual Punishment
And to be honest, Justice Frankfurter dissented in saying, well, we execute deserters. So are you really saying that citizenship stripping is a fate worse than death? But that's what the court says in Trope v. Dulles, that citizenship stripping is cruel and unusual, even if they said we're not at this point willing to say that death is cruel and unusual.
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We The People: Cruel and Unusual Punishment
They said the meaning of the Eighth Amendment— should come from, and this is language the court thereafter repeats over and over, the meaning comes from the evolving standards of decency that mark the progress of a maturing society.
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We The People: Cruel and Unusual Punishment
Now, that's not a lot clearer than cruel and unusual, but it is. bakes into the test the idea that these standards change. They evolve over time. And that they evolve in a progressive way, presumably toward decency and toward less harshness and punishment.
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We The People: Cruel and Unusual Punishment
All right, here's the original text of the Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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We The People: Cruel and Unusual Punishment
So after World War II, not just in the United States, but in Europe and around the world, the death penalty really went into a deep nosedive. I think there was some real skepticism about the authority of governments to be able to order executions. in the wake of the fall of Hitler and Mussolini. So the death penalty was very much questioned.
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We The People: Cruel and Unusual Punishment
It was forbidden in Germany and Italy's post-World War II constitutions. And even in the United States, It had really begun to fall into disfavor. And one of many reasons that it fell into disfavor, but a very significant one, was its racially discriminatory use, especially in the American South.
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We The People: Cruel and Unusual Punishment
They said, you know what? We should make this our next big thing. We should mount a constitutional litigation campaign to end the American death penalty as a matter of racial justice.
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We The People: Cruel and Unusual Punishment
They sent like a kind of sort of form of freedom riders. They sent a bunch of young people down to the south to go to courthouses. This is before computers. If you wanted to find evidence about cases, you had to go to the courthouses and pull records.
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We The People: Cruel and Unusual Punishment
And they sent teams of young people down to southern courthouses to try to build a record about the racially discriminatory use of the death penalty.
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We The People: Cruel and Unusual Punishment
So what's interesting, the court first says, very hard to know what this means. But then they go on to say, the one thing we can say with some certainty is that it had something to do with torture. That torture's not good. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.
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We The People: Cruel and Unusual Punishment
But as this litigation campaign picked up speed, they began to throw everything at the wall, every argument they could think of against the death penalty. And one of the big arguments was standards of decency have evolved.
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We The People: Cruel and Unusual Punishment
In the 1960s, the death penalty was much more broadly authorized than it is today. Like I've already said, you could get it for rape in addition to murder, but you could also get it in some states for armed robbery, for kidnapping, for arson. So it was very broadly authorized. And juries decide whether the death penalty should be imposed, not judges.
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We The People: Cruel and Unusual Punishment
And they were given no instructions whatsoever about who should get the death penalty. They were simply told, it is in your sole discretion, according to your conscience, whether to impose death or life or sometimes a lesser punishment. And so that was thought to be a due process problem, that there wasn't any guidance to the juries about who should get the death penalty and who shouldn't.
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We The People: Cruel and Unusual Punishment
And then... Astoundingly, they ruled in favor of the claim that the death penalty was being applied in a way that violated the Eighth Amendment.
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We The People: Cruel and Unusual Punishment
The headline in the New York Times that announced that decision was the same banner as had announced men landing on the moon three years previously in 1969. It was that big a deal and that much of a surprise. Like, nobody thought that that's what was going to happen, but that's what happened.
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We The People: Cruel and Unusual Punishment
So, Furman v. Georgia, 1972. The death penalty in the United States is, at one stroke of a pen, abolished across all 40 states that had it and the federal government.
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We The People: Cruel and Unusual Punishment
The grounds for the decision were really hard to say.
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We The People: Cruel and Unusual Punishment
Because there are nine people on the Supreme Court and every single one of them wrote his own opinion in this case. So there are nine different opinions in Furman v. Georgia. Wow. That's not, that's not. That does not happen. No, that does not happen.
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We The People: Cruel and Unusual Punishment
It's a 5-4 decision, very slim majority. So there are five majority opinions and four dissents. None of the people in the majority join anyone else's majority opinion. Some of the dissenters join in each other's dissents, but there's nine of them. And they all have something a little bit different to say.
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We The People: Cruel and Unusual Punishment
He has a line that I think is really powerful where he says, when you have this like broad authorization and no standards to sentencing juries, a system like that is pregnant with discrimination. It's pregnant with discrimination. It will give birth to discrimination because it will give people's biases, you know, play in the decision making process.
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We The People: Cruel and Unusual Punishment
My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death, the Supreme Court and Capital Punishment. In 1878, the question was whether firing squads were cruel and unusual punishment. Court says that's not torturous. It's not unnecessary cruelty. And we know that because, you know, we've used it a lot as a punishment for deserters in wartime.
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We The People: Cruel and Unusual Punishment
And they basically said, the problem is not... that Europe is getting rid of the death penalty and that it's per se unconstitutional. Instead, Stuart and White said it's the way that it's being applied with this broad authorization and no instructions. The most famous line is Justice Stuart's line. He said, these death sentences in these cases...
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We The People: Cruel and Unusual Punishment
are cruel and unusual, the way being struck by lightning is cruel and unusual. There's just no rhyme or reason about who gets the death penalty. And, you know, we would say it's like totally rando is what we would say today. What he said is it's wanton and freakish, the application of the death penalty. Wanton and freakish, struck by lightning.
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We The People: Cruel and Unusual Punishment
Yeah, well, what happened was I think the justices miscalculated where standards of decency had evolved to because there was – a tremendous backlash to Furman. Someone stood up in the Georgia legislature and introduces a new death penalty scheme that attempts to guide juror discretion. And between 1972 and 1976, 35 states and the federal government
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We The People: Cruel and Unusual Punishment
pass new death penalty statutes attempting to give the guidance that Stewart and White said was lacking in Furman so that they could keep the death penalty. And they start sentencing people to death.
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We The People: Cruel and Unusual Punishment
Charles Manson got off of death row. Sirhan Sirhan, who had just shot Bobby Kennedy, you know, he got off of death row. So people were kind of outraged. Like, Charles Manson and Sirhan Sirhan are not going to get executed? No.
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We The People: Cruel and Unusual Punishment
in California with like almost instantaneously, you know, California has all of these initiatives and referendums and the people passed by initiative, they amended the California constitution to allow the death penalty. So you might've thought, doesn't California still have the death penalty? Yes, it does. But how do they do that?
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We The People: Cruel and Unusual Punishment
If the California constitution says you can't have it because the people instantaneously amended the constitution and, after the California Supreme Court abolished it constitutionally.
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We The People: Cruel and Unusual Punishment
There's no way the court can ignore that. It has to decide whether these new statutes are OK or not.
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We The People: Cruel and Unusual Punishment
Texas, North Carolina, Louisiana, Georgia, and Florida. What's interesting is there's two buckets of kinds of statutes. Like it upholds three of these new statutes, the ones from Georgia, Florida, and Texas, because it says that they do guidance. They guide the jury. They give the jury something to think about other than, you know, according to your conscience.
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We The People: Cruel and Unusual Punishment
In 76, the Supreme Court said, yeah, no, you can't have mandatory statutes. One is, they said, it's not really going to take care of the problem of discretion because... Juries, if they don't want the person to get the death penalty, they'll just find them guilty of second degree murder. You know, that's always open to them.
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We The People: Cruel and Unusual Punishment
So the court says we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.
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We The People: Cruel and Unusual Punishment
So it's just going to drive the discretion underground rather than getting rid of it.
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We The People: Cruel and Unusual Punishment
This is very poetic. It says it treats them as members of an undifferentiated mass subject to the blind infliction of capital punishment. And it doesn't give any consideration to the diverse frailties of humankind. I love that. Wow. Diverse frailties of humankind.
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We The People: Cruel and Unusual Punishment
And the Supreme Court said, you know, it's totally OK to have mandatory non-capital sentences. We have a lot of them, actually, mandatory sentences for all kinds of things. But the Supreme Court said death is different. It's different in kind from any other punishment in its severity and its irrevocability.
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We The People: Cruel and Unusual Punishment
And therefore, we have to attend to the diverse frailties of humankind before we sentence someone to death.
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We The People: Cruel and Unusual Punishment
Correct. It allows a death penalty only if jurors are guided enough by some sentencing regime that gives them something to think about other than whatever they want. And they have to consider the diverse frailties of humankind. They have to consider mitigating evidence that might cut against a sentence of death.
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We The People: Cruel and Unusual Punishment
When we ask whether something is cruel and unusual, do we ask whether it was cruel and unusual back in 1789 when they were writing the Constitution? Or do we ask whether it's cruel and unusual to contemporary sensibilities? It's kind of a rebuke to the idea that standards of decency evolve in one direction.
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We The People: Cruel and Unusual Punishment
King James II, who was Catholic and was thought to be favoring Catholics over Protestants, so there was a lot of Catholic-Protestant tension.
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We The People: Cruel and Unusual Punishment
King James was not happy about that and wanted to punish hundreds and hundreds of people who he felt were involved in some way in this rebellion against him.
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We The People: Cruel and Unusual Punishment
known now historically as the Bloody Assizes, court sessions in which these people who were associated in some way with this rebellion were tried and punished in extravagant ways.
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We The People: Cruel and Unusual Punishment
Some in really grotesque ways, like being drawn and quartered, which means having your four limbs tied to four horses who would be sent off in different directions to pull your body apart. Hundreds of them were sent to the West Indies as laborers, so essentially, you know, kind of a form of slavery, if you will. Many of them were publicly flogged brutally or put in pillories.
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We The People: Cruel and Unusual Punishment
So we're talking four years after the bloodiest sizes, the English Bill of Rights was passed and makes specific reference to the depredations of King James II.
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We The People: Cruel and Unusual Punishment
The founders of the country wanted to bring the original 13 colonies together in a single new government. And this was very threatening because the founders were very worried about recreating the oppressive government they had just freed themselves from. Here they were creating a new national head called a president, but what if he turned out to be like a king?
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We The People: Cruel and Unusual Punishment
And then when the original Constitution was proposed, before there was a Bill of Rights added to it, it was the delegation from Virginia that suggested that the Eighth Amendment be added to it.