E-NOTES
These electronic notes—which may be cited as “e-notes”—supplement the printed endnotes for John D.
Bessler’s Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (Boston:
Northeastern University Press, 2012). The e-notes contain additional material not found in the printed text
of the book. Any printed endnote for which an e-note is also available contains a notation to that effect.
Sources appearing in the bibliography for Cruel and Unusual are abbreviated throughout these e-notes. For
such sources, only author or editor surname and, as needed, shortened titles appear in these e-notes. The
bibliography should be consulted for more complete information. In addition, the following abbreviations
are used in citations to letters:
AA
AH
BF
BR
GM
GW
JA
JD
JH
JJ
JM
JQA
PH
RHL
SA
TJ
WB
Abigail Adams
Alexander Hamilton
Benjamin Franklin
Benjamin Rush
George Mason
George Washington
John Adams
John Dickinson
John Hancock
John Jay
James Madison
John Quincy Adams
Patrick Henry
Richard Henry Lee
Samuel Adams
Thomas Jefferson
William Bradford
Introduction (pages 1–11)
13. One slave convicted of treason—Billy—earned a reprieve from Thomas Jefferson in 1781 after an
influential planter, Mann Page, serving as the executor of the estate of Billy’s owner, argued to Governor
Jefferson that a slave, as a non-citizen, could not commit treason. Billy, accused of fighting with the British,
was pardoned on June 14, 1781. Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of
Virginia, 1705–1865, at 189 (1998); Virginia Memory: Library of Virginia, This Day in Virginia History,
visited Feb. 13, 2011, http://www.virginiamemory.com/reading_room/this_day_in_virginia_history/
june/07.
14. Before the U.S. Bill of Rights was ratified, penal reform efforts were well underway in both America
and Europe. For example, in 1791, David Humphreys—America’s minister to Portugal—reported from
Lisbon that, “[o]n the subject of morals,” “very few executions take place in Spain.” David Humphreys to
GW (Feb. 16, 1791).
19. In re Candido, 31 Haw. 982, 1931 WL 2830 *8 (Hawai’i Terr.) (“There can be no doubt that in 1791
when the Eighth Amendment was framed and adopted whipping was a well known form of punishment
1
commonly used by the executive departments of the federal government and of some of the states.”);
Wilmarth v. King, 69 A. 889, 890 (N.H. 1908) (noting “the change in public opinion rendering corporal
punishments odious”). Notably, most originalists today have accepted Justice Scalia’s suggestion that
they focus on the “original meaning” rather than the “original intent.” Antonin Scalia, Speech before the
Attorney General’s Conference on Economic Liberties ( June 14, 1986), in Office of Legal Policy, Original
Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Department of Justice 1987); see also Randy Barnett,
An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 620–21 (1999) (noting that “originalism” has changed
from a doctrine that seeks “the subjective intentions of the framers” to one that seeks “the objective original
meaning that a reasonable listener would place on the words in the constitutional provision at the time of its
enactment”).
Chapter 1. In Cold Blood (pages 12–33)
7. The State of Missouri initially charged Tessmer—who had an extensive criminal history—with
conspiracy, but those charges were dropped in exchange for his testimony against Simmons. Roper, 543 U.S.
at 556; Bowersox, 235 F.3d at 1129.
12. The concepts of “dignity” and “humanity” appear in multiple U.S. Supreme Court cases. Gregg v.
Georgia, 428 U.S. 153, 173 (1976) (“[a] penalty must also accord with ‘the dignity of man,’ which is the ‘basic
concept underlying the Eighth Amendment’”) (joint opinion of Stewart, Powell, and Stevens, JJ.); Hudson v.
McMillian, 503 U.S. 1, 11 (1992) (saying “‘concepts of dignity, civilized standards, humanity, and decency’” are
concepts that “animate the Eighth Amendment”); Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)
(“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”); accord
Ford v. Wainwright, 477 U.S. 399, 409–10 (1986); Woodson v. North Carolina, 428 U.S. 280, 304 (1976);
Walton v. Arizona, 497 U.S. 639, 675 (1990) (Brennan, J., dissenting); Rhodes v. Chapman, 452 U.S. 337, 372
(1981) (Marshall, J., dissenting).
20. Marbury v. Madison was not the first American case to legitimize the concept of judicial review. For
example, Commonwealth v. Caton, a 1782 Virginia case, involved three men—John Caton, Joshua Hopkins
and John Lamb—condemned for treason. The issue was whether a pardon of the attainted men issued by
Virginia’s House of Delegates, but not concurred in by the state senate, was a valid pardon. When Virginia’s
Court of Appeals convened on October 29, 1782, Chancellor Edmund Pendleton asked the lawyers to argue
“[w]hether a Court of Law could declare an Act of the Legislature void because it was repugnant to the Act
for the Constitution of Government” and to address whether the statute in question, the Treason Act, was
contrary to the state constitution’s pardon clause. The prisoners contended that the constitution placed the
pardoning power in the House of Delegates, and that the legislative act of asking the state senate to concur
in the House’s pardon resolution “was contrary to the plain declaration of the Constitution; and therefore
void.” The Attorney General, Edmund Randolph, disagreed, denying the validity of the pardon resolution;
arguing “that compassion for the prisoners could not enter into the case”; and stating that the Court of
Appeals was “not authorized to declare” a legislative action “void.” At that time, many Tories still populated
Virginia’s seaboard, especially around Norfolk, and Caton, Hopkins and Lamb had been marched from the
jail in Princess Anne County to the General Court in Richmond to be tried for, and convicted of, treason.
Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782); Holt, 1012–17; Matthew P. Harrington, Judicial Review
Before John Marshall, 72 Geo. Wash. L. Rev. 51, 73–75 (2003).
In Caton, Chancellor Pendleton concluded that the Treason Act did not violate the constitution and
thus did not reach the question of whether the judiciary might void a legislative act. Other appellate court
2
judges in Caton, however, concluded that the court could pronounce a statute void, though they agreed
that the statute in question was not unconstitutional. Pendleton and his colleagues thus sided with the
ultimate result urged by Attorney General Randolph, declaring the House’s pardon resolution invalid—and
rejecting the prisoners’ claims—because the state senate had never adopted it. One of the court’s judges,
George Wythe, made clear in the case, though, that judges had the power to enforce the rule of law and
the duty to protect an individual’s constitutional rights. As Wythe explained: “I have heard of an English
Chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject against
the encroachments of the Crown, and that he would do it, at every hazard.” “[I]f the whole legislature . . .
should attempt to overleap the bounds prescribed to them by the people,” Wythe would announce, with
John Marshall himself in the courtroom, “I, in administering the public justice of the country, will meet the
united powers, at my seat in this tribunal; and, pointing to the constitution, will say to them, here is the limit
of your authority; and hither shall you go, but no further.” “But,” Wythe had continued, after examining the
particular circumstances of the treason cases before him, “if it was his duty to protect a solitary individual
against the rapacity of the sovereign, surely, it is equally mine, to protect one branch of the legislature, and,
consequently, the whole community, against the usurpations of the other; and, whenever the proper occasion
occurs, I shall feel the duty, and fearlessly perform it.” For his part, Pendleton opined that “[c]ompassion for
the individual must frequently yield to the safety of the community”; that “[m]en surrender part of their
natural rights to insure protection for the residue against domestic violence, and hostilities from abroad”;
and that “the rights of private citizens” and “the integrity of the State” would not be promoted “by letting
loose, notorious offenders to burn, to rob, and to murder, or to aid a foreign foe in his unjust attempts upon
the liberties of the country.” “Mercy, in such cases, to one, would be cruelty to the rest,” Pendleton opined.
Id.; 2 Schwartz, The Roots of the Bill of Rights, 410–15.
The Founding Fathers themselves were familiar with Dr. Bonham’s Case, an English precedent from 1610
in which Lord Chief Justice Edward Coke stated: “When an Act of Parliament is against common right and
reason, the common law will control it and adjudge such Act to be void.” Dr. Bonham’s Case, 8 Coke Rep.
107, 116–21 (C.P. 1610); Scott D. Gerber, The Political Theory of an Independent Judiciary, 116 Yale L.J. Pocket
Part 223, 227–28 (2007), Ronald D. Rotunda & John E. Nowak, 1 Treatise on Const. L. § 1.4(b)(ii) & nn.23,
29 (2010).
23. In response to the U.S. Supreme Court’s citation of international and foreign law in cases like
Atkins v. Virginia and Lawrence v. Texas, some lawmakers, such as Texas Congressman Ron Paul, sought
to prohibit the Court from citing such sources. Tracking the United States Congress, American Justice for
American Citizens Act, visited Jan. 30, 2011, http://www.govtrack.us/congress/billtext.xpd?bill=h108–4118.
Though Justice Scalia criticized the Roper majority’s citation of foreign and international law, he nonetheless
fiercely—and publicly—defended the Court’s independence. “It’s none of your business,” he scolded
members of Congress, adding, “No one is more opposed to the use of foreign law than I am, but I’m darned
if I think it’s up to Congress to direct the Court how to make its decisions.” Charles Lane, “Scalia Tells
Congress to Mind Its Own Business,” Wash. Post, May 19, 2006.
30. Kansas v. Marsh, 548 U.S. 163, 199 (2006) (Scalia, J., concurring); Roper, 543 U.S. at 607–30 (2005)
(Scalia, J., dissenting); Ewing v. California, 538 U.S. 11, 31 (2003) (Scalia, J., concurring); Atkins, 536 U.S. at
337–54 (Scalia, J., dissenting); Walton, 497 U.S. at 669–74 (Scalia, J., concurring); Stanford v. Kentucky,
492 U.S. 361 (1989); Atkins v. Virginia, 536 U.S. 304, 349 (2002) (Scalia, J., dissenting); Antonin Scalia,
God’s Justice and Ours, First Things (May 2002), at 17. At the Constitutional Convention in Philadelphia,
the Framers—as one writer pointed out long ago—were certainly not attempting to create a penal code. “A
Citizen of Philadelphia” [Pelatiah Webster], Remarks on the Address of Sixteen Members (Oct. 18, 1787),
3
John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds.,
The Documentary History of the Ratification of the Constitution Digital Edition (Univ. of Virginia Press,
Rotunda, 2009), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN-03-13-02-01290003 (“it was no part of the business of their appointment to make a code of laws—it was sufficient to fix the
constitution right, and that would pave the way for the most effectual security of the rights of the subject”).
31. The Eighth and Fourteenth Amendments have been read to regulate certain aspects of capital trials.
See, e.g., Bell v. Ohio, 438 U.S. 637 (1978) (Eighth and Fourteenth Amendments require individualized
consideration of mitigating factors); Johnson v. Mississippi, 486 U.S. 578 (1988) (denial of defendant’s
motion for post-conviction relief from death sentence which was based in part on felony conviction
that was later vacated violated the Eighth Amendment); McKoy v. North Carolina, 494 U.S. 433 (1990)
(North Carolina sentencing procedure allowing jury to consider only those mitigating circumstances found
unanimously impermissibly limited jurors’ consideration of mitigating evidence in violation of the Eighth
Amendment); Richmond v. Lewis, 506 U.S. 40 (1992) (death sentence was tainted by Eighth Amendment
error when the sentencing judge gave weight to an unconstitutionally vague aggravating factor); Loving v.
United States, 517 U.S. 748 (1996) (assuming the principles of Furman apply to courts-martial, the Eighth
Amendment required additional aggravating factors establishing higher culpability to support imposition of
death penalty).
35. Compare Antonin Scalia, A Matter of Interpretation 38 (1998) (“what I look for in the Constitution
is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen
intended”); Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 115–32 (2005)
(“textualist and originalist doctrines may . . . produce seriously harmful consequences outweighing whatever
risks of subjectivity or uncertainty are inherent in other approaches”); Darla L. Daniel, Of Deckchairs,
Icebergs, and Gestalt Shifts: Unger, Kahn, and a Student on Contemporary Legal Thought, 72 U. Colo. L.
Rev. 851, 872 (2001) (“[T]he strict constructionist or originalist is always already engaged in his own form
of ‘reconstructive rationalization.’ The difference is that instead of seeing ‘penumbras’ emanating from the
constitutional text, the strict constructionist or originalist sees literal language, or framers’s intent, and
subscribes to the theory that ‘[i]f it cannot, by hook or by crook, be found in the [C]onstitution, it must
not be as good as it looks.’”); see also Amar, Intratextualism, 748; Randy E. Barnett, An Originalism for
Nonoriginalists, 45 Loy. L. Rev. 611 (1999); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke
L.J. 239 (2009); Antonin Scalia, Interpreting the Constitution, in Readings in the Philosophy of Law 132
( John Arthur & William H. Shaw eds., 5th ed. 2010); Antonin Scalia, Originalism: The Lesser Evil, 57 U.
Cin. L. Rev. 849 (1989); Edwin Meese III, Toward a Jurisprudence of Original Intent, 11 Harv. J.L. & Pub.
Pol’y 5 (1988); Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353
(2007); Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085 (1989);
H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
36. Compare Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264 n.4 (1989)
(“We look to the origins of the Clause and the purposes which directed its framers. ‘The applicability
of the Eighth Amendment always has turned on its original meaning, as demonstrated by its historical
derivation.’”); Ex parte Bain, 121 U.S. 1, 12 (1887) (“[I]n the construction of the language of the Constitution
. . . we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.”)
with Rummel v. Estelle, 445 U.S. 263, 287 (1980) (Powell, J., dissenting) (“Although the legislative history of
the Eighth Amendment is not extensive, we can be certain that the Framers intended to proscribe inhumane
methods of punishment.”); id. at 307 (Powell, J., dissenting) (“We are construing a living Constitution.”).
4
Chapter 2. On Crimes and Punishments (pages 31–65)
1. An advertisement in Rivington’s New York Gazetteer of October 28, 1773, announced the forthcoming
publication of Beccaria’s book, but no trace of this edition has been found, perhaps suggesting the project
never came to fruition. Maestro, 43 n.10. One of the philosophes, André Morellet—the French translator
of Beccaria’s book—was an economist, writer, and correspondent of Benjamin Franklin. A more complete
history of Beccaria’s life—as well as additional information about his book and the various editions and
translations of it—can be found elsewhere. Bessler, Revisiting Beccaria’s Vision, 195–285.
4. The concept of “infamy” is associated with a qualification of a person’s legal status produced by being
convicted of an “infamous crime.” Ex parte Wilson, 114 U.S. 417, 422–23 (1885); State v. Clark, 56 P.2d 767,
769 (Kan. 1899); Cottrell v. Nat’l Collegiate Athletic Ass’n, 975 S0.2d 306, 345–46 (Ala. 2007); Brown v.
W.R.M.A. Broad. Co., 238 S0.2d 540, 541 (Ala. 1970); see also United States v. Field, 21 Blatchf. 330, 16 F.
778, 782 (Vt. 1883) (“‘Infamous,’ says Webster, is ‘scandalous, disgraceful, ignominious.’ That a crime is in
this sense infamous is evidenced by the fact that it has assigned to it hard labor in a penitentiary for a period
not less than one nor more than five years. The man who emerges from such an imprisonment cannot but be
regarded, if any one can be so regarded, as tainted with ‘infamy,’ ‘disgrace,’ and ‘ignominy.’”); Commonwealth
v. Shaver, 3 Watts & Serg. 338, 342 (Pa. 1842) (“Mr Webster, who, in his Dictionary, adopts the meaning given
by the Encyclopedia to the word ‘infamy,’ says, ‘in law,’ it means ‘that loss of character, or public disgrace
which a convict incurs, and by which he is rendered incapable of being a witness or juror.’”).
5. The “Pear of Anguish,” used to punish homosexuality, blasphemy or lying, involved inserting a small,
pear-shaped instrument into an anus, vagina, or mouth, then slowly expanding the instrument’s four leaves
from each other, mutilating the victim. The “Rack” involved fastening hands and feet to rollers or cords at
opposite ends of a wooden frame, then turning a handle, pulling limbs in opposite directions until joints
became dislocated. The “Judas Chair” was a pyramid-shaped chair that the victim was lowered onto, with
the victim’s anus or vaginal canal placed over the point of the chair, thus stretching the orifice and causing
internal mutilation. “Medieval Torture,” 2 Lapham’s Quarterly 2:165 (Spring 2009). For graphic descriptions
of torture and executions in Europe in the 1700s, see Foucault, 3–6, 12–13; Maestro, 14–15; Hunt, 80 (“Judges
ordered drawing and quartering and burning at the stake infrequently in the eighteenth century, but breaking
on the wheel was quite common; in the southern French jurisdiction of the Parlement of Aix-en-Provence,
for example, nearly half of the fifty-three death sentences imposed between 1760 and 1762 called for breaking
on the wheel.”); id. at 95 (“A British visitor to Paris reported on an execution by breaking on the wheel in
1787. . . .”).
6. In 1767, the London translator of Beccaria’s book wrote that penal laws “are still so imperfect,” saying
that they “are attended with so many unnecessary circumstances of cruelty in all nations, that an attempt
to reduce them to the standard of reason must be interesting to all of mankind.” Hunt, 103. Historian Lynn
Hunt notes the considerable shift in public mood that followed the publication of Beccaria’s book: “During
the 1770s and 1780s, the campaign for the abolition of torture and for the moderation of punishment gained
momentum, as learned societies in the Italian states, the Swiss cantons, and France offered prizes for the
best essays on penal reform.” On Crimes and Punishments specifically influenced Joseph von Sonnenfels, a
prominent lawyer in Austrian legal circles, 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. Id. at
103–5; Jerome Hornblass, The Jewish Lawyer, 14 Cardozo L. Rev. 1639, 1640 (1993). Sonnenfels, appointed
a professor at the University of Vienna in 1763, drew up an Austrian legal code and played a chief role in
5
bringing about the abolition of torture in Austria. W.E. Yates, Theatre in Vienna: A Critical History 1776–
1995, at 9 (1996); David C. Crago, The Consistent Creator, 23 Ohio N.U. L. Rev. 969, 969 (1997).
12. Charles Carroll, the only Roman Catholic signer of the Declaration of Independence, studied law
in Europe and was also especially influenced by Montesquieu. Bradley J. Birzer, American Cicero: The Life
of Charles Carroll 9, 24–27, 49, 96, 116 (2010). After coming home to Maryland, Carroll—described by
Benjamin Rush as “[a]n inflexible patriot, and an honest independent friend to his country”—got involved
in the American Revolution and ultimately became one of Maryland’s first U.S. Senators. In late 1774,
Carroll wrote to his closest English friend, William Graves, then a member of Parliament, asking rhetorically,
“Do I ever mean to cross the [A]tlantic?” “No,” he continued, proudly expressing his patriotism, “unless I
should be transported under the obsolete act of Henry the 8th to be hanged in England for being a true
American.” Id. at 79, 114, 178. The last surviving signer of the Declaration of Independence, Carroll met
with Alexis de Tocqueville in 1831, a year before Carroll’s death. “A mere Democracy is but a mob,” Carroll
told Tocqueville, with Carroll—who was especially taken by Montesquieu’s notion of minimizing the
concentration of power in any one branch or person in government—telling another group of men in 1828
that the “protracted existence” of the republic created by the Declaration of Independence “will depend on
the morality, sobriety and industry of the people.” Id. at 189, 196.
15. For Beccaria, a government’s stability or instability was of great importance to him in considering
what the punishment should be. Thomas, 85 (“I conclude with this reflection: the severity of punishments
must be relative to the state of the nation itself. Stronger and more palpable impressions have to be made on
the hardened spirits of a people who have just emerged from the savage state.”). Beccaria, however, viewed
the exception as an extremely narrow one, 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.
16. 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, an academy
Beccaria had joined prior to joining the Academy of Fists. Thomas, 178-79 n.1. “[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.
18. Hunt, 242 n.10 (“Voltaire reported reading Beccaria in a letter of October 16, 1765; in the same letter
he refers to the Calas Affair”); Ishay, 89 (“In France, Voltaire drew on Beccaria to criticize the French penal
system: ‘[A] Roman citizen could be condemned to death only for crimes that threatened the security of
the state. Our masters, our first legislators, respected the blood of their compatriots, while we lavishly waste
that of ours.”). Voltaire read Beccaria’s book in Italian in the autumn of 1765, eighteen months after its first
publication. Davidson, 153.
19. For murders and conspiracies against the State, Kant saw the death penalty as necessary. For
accomplices to massive conspiracies, however, even Kant did not recommend the death penalty’s use
on a large scale. “[T]he state,” he said, “will not wish to blunt the people’s feelings by a spectacle of mass
slaughter.” H. S. Reiss, ed., Kant: Political Writings 157 (1991). In late eighteenth-century France, the Jacobins
not only confiscated property of the Catholic Church but used executions to inspire terror. James Gordley,
Morality and the Protection of Dissent, 1 Ave Maria L. Rev. 127, 135 (2003).
6
21. C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda, 2008),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/ADMS-01-04-02-0001-0060, ADMS-0104-02-0001-0062, & ADMS-01-02-02-0008-0003-0029 (April 27 and April 29, 1778 diary entries); John
Adams autobiography, part 2 (April 16 and April 29, 1778 entries). Benjamin Franklin—who had read French
since his late twenties—had admired Voltaire’s writings as early as 1764. Schiff, 48, 136–38, 159.
26. In 1699, for example, an English Friend, John Bellars, had advocated for the death penalty’s complete
abolition—a cause the Friends of Pennsylvania would also take up. Post, 39.
30. In Iceland, the Great Edict of 1564 proclaimed that women found guilty of adultery, infanticide,
perjury or any other criminal act, would be drowned to death, and a special pond, at Pingvellir, known as the
Drekkingarhylur, was used for that purpose. The guilty women were tied in a sack before being thrown into
the pond, a practice that continued until as late as 1838. Rowland Mead, Iceland: Globetrotter Travel Guide 58
(2009).
31. Benson Bobrick, The Fated Sky 46 (2005) (noting that Antoninus Pius refused to act on a list of
those slated for execution that was placed on his desk); compare Simon Hornblower & Antony Spawforth,
eds., The Oxford Classical Dictionary 270 (3d rev. ed. 2003) (noting that Titus ordered the execution of
Caecina in 79); Brian W. Jones, The Emperor Domitian 181 (1992) (noting that Trajan, to celebrate a victory
in Dacia, oversaw ten thousand gladiators fighting over a twenty-three day period). 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. Bessler, Revisiting Beccaria’s
Vision, 200 n.36.
32. Joseph II’s mother was Empress Maria Theresa, who died in 1780 after a long reign. Maestro, 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. In his 1789 speech to the French National Assembly, Dr.
Guillotin—who once served on a King Louis XVI-appointed panel of scientists with Benjamin Franklin
to investigate a scientific claim and who actually opposed capital punishment—had said that if a beheading
machine were used “the victim shall feel nothing.” Peter A. Clark, Physician Participation in Executions:
Care Giver or Executioner?, 34 J.L. Med. & Ethics 95, 95–96 (2006); James S. Morgan, Heckler v. Chaney:
International Law to Apply?, 43 Rev. Der P.R. 293, 310 (2004); Jacqueline Kanovitz, Hypnotic Memories and
Civil Sexual Abuse Trials, 45 Vand. L. Rev. 1185, 1210 n.92 (1992); 22 Ill. Prac., The Law of Medical Practice in
Illinois § 39:8 n.3 (3d ed. 2010) (quoting Joseph-Ignace Guillotin, Speech to the French Assembly, 1789).
34. WB to JM (Oct. 17, 1774) (noting that “Vattel, Barlemaqui Locke & Montesquie[u]” seem to be “the
standar[d]s” to which Congress “refer when settling the rights of the Colonies or when a dispute arises on
the Justice or propriety of a measure”); William Duane to TJ ( July 5, 1811) (referencing both Montesquieu
and Beccaria); State ex rel. O’Connor v. Davis, 745 N.E.2d 494, 506 (Ohio App. 2000); United States v.
Scott, 688 F. Supp. 1483, 1487 (D. N.M. 1988); Taxpayers of Michigan Against Casinos v. State of Michigan,
732 N.W.2d 487, 513 (Mich. 2007); Ex parte Walker, 972 So.2d 737, 766 (Ala. 2007); Schisler v. State, 907
A.2d 175, 215 (Md. 2006); Benn v. Lambert, 283 F.3d 1040, 1063 (9th Cir.), cert. denied, 537 U.S. 942 (2002);
Levy, 196–97; Jenny-Brooke Condon, Extraterritorial Interrogation: The Porous Border Between Torture
and U.S. Criminal Trials, 60 Rutgers L. Rev. 647, 658–59 (2008) (“At the founding of the United States,
several Framers regarded the Fifth Amendment privilege against compelled self-incrimination as a safeguard
against torture.”); R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against SelfIncrimination in America, 21 Va. L. Rev. 763, 789 (1935); see also State v. Osborn, 160 A.2d 42, 48 (N.J. 1960)
(“Montesquieu, who greatly influenced the framers of our Federal Constitution, is quoted by Alexander
7
Hamilton as saying: ‘There is no liberty if the power of judging be not separated from the legislative
and executive powers.’”). “The oracle who is always consulted and cited on this subject is the celebrated
Montesquieu,” James Madison wrote in The Federalist No. 47 of the separation-of-powers doctrine. United
States v. Moreno, 63 M.J. 129 (U.S. Armed Forces, 2006). A slew of American judges have cited Beccaria’s
treatise. Bessler, Revisiting Beccaria’s Vision, 206–7 n.78 & 284 n.668 (citing cases). Dei delitti e delle pene
has also been cited—and referred to as a “decisive” and “classic work”—in the European Court of Human
Rights. Id. at 285 n.669.
35. “In the eyes of truth and justice,” Robespierre said in 1791 of public executions, “the scenes of
death that society commands with so much ceremony are nothing but cowardly murders, solemn crimes
committed according to legal procedures, but by the nation at large.” Ishay, 16, 90.
38. State v. Newman, 140 N.W.2d 406, 412 (Neb. 1966) (defining “bloodthirstiness” as “Eager to shed
blood, cruel, sanguinary, murderous”); Appendix to “Thoughts on Executive Justice” (a charge given to the
grand jury for the County of Surrey at the Lent Assizes (1785)), at 54–55 (“The word sanguinary carries with
it a very dreadful meaning, like its plain-English synonymy—bloody:—it brings sensations into the mind of
the most terrible nature; and, when applied to Laws, it imports, that they are arbitrary and cruel, like the
Laws of Draco, which were calculated for the destruction and misery, not for the preservation and happiness,
of mankind.”), reprinted in 2 Crimmins. State constitutions often used the word “sanguinary.” N.H. Const.
art. XVIII (1784); S.C. Const. of 1778, art. I, § 40 (1790); Pa. Const. of 1776, § 38 (1790).
39. C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda, 2008),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/ADMS-05-03-02-0001-0004-0016;
Banner, 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.”). Beccaria’s name was
also invoked during ratification debates over the U.S. Constitution. “Brutus,” New York J., Oct. 18, 1787;
“Sidney,” New York J., Oct. 18, 1787; “A Countryman” (De Witt Clinton), New York J., Dec. 6, 1787; “A
Countryman” (De Witt Clinton), New York J., Dec. 13, 1787; “A Countryman” (De Witt Clinton), New
York J., Dec. 20, 1787; “Federal Farmer,” Letter VII, Dec. 31, 1787; John De Witt V, Am. Herald, Dec. 3, 1787
(reprinted in Philadelphia’s Freeman’s Journal, Jan. 16, 1788 and the New York Journal, Jan. 28, 1788). For
example, in a Virginia newspaper, “An Impartial Citizen” noted that George Mason had raised an objection
to the President’s power to pardon offenses against the United States. “The Marquis de Beccaria, ’tis true,”
the writer explained, “thinks that pardons ought to be excluded in a perfect Legislation, where punishments
are mild but certain.” “But indeed,” the writer added, “to make this maxim maintainable, punishments
ought to be very mild—And the learned Blackstone, in his admirable Commentaries, has clearly shewn the
propriety of pardoning.” “An Impartial Citizen,” Petersburg Virginia Gazette, Feb. 28, 1788. This Virginia
writer felt that the President ought to have the pardoning power to mitigate “rigorous” sentences so that
punishments would be “according to the true spirit of all laws, which teaches ‘never to sacrifice a man but in
evident necessity.’” Id. It was further contended that “should the President pardon in common cases before
conviction, or afterwards forgive notorious villains, or persons who should be unfit objects of mercy, this
would be such a misfeasance of his office, as would subject himself to be personally impeached.” Id.
41. Many of the Founding Fathers—including Alexander Hamilton and Patrick Henry—also had
experience working as defense lawyers in murder cases. Unger, Lion of Liberty, 200–1 (discussing Patrick
Henry’s experience as a defense lawyer); Larson, 89 (“As attorneys, Burr and Hamilton occasionally
collaborated on cases—including as co-counsel for the defense in a sensational murder trial during the weeks
leading up to the election of April 1800.”).
8
42. Benjamin Rush called James Wilson’s mind “one blaze of light,” and Wilson himself has been
described—in terms of his role at the Constitutional Convention—as “[s]econd only to Madison.” Nicholas
Pedersen, The Lost Founder: James Wilson in American Memory, 22 Yale. J.L. & Human. 257 (2010) (text at
nn.53–56).
43. United States v. Smith, 27 F. Cas. 1186, 1188 (C.C.D. N.Y. 1806) (“Grand juries are the offspring of
free government; they are a protection against illfounded accusations, and the necessity of their originating
bills of indictment is supposed to be infinitely more friendly to liberty than the mode of proceeding by
information. . . .”).
44. The attack on Wilson’s home, following Wilson’s work as a defense lawyer, took the form of a fierce
gun battle that left at least six or seven dead and between seventeen and nineteen seriously wounded. Larson,
1501–7.
48. John Norvell later co-founded the Pennsylvania Inquirer, practiced law, and became a U.S. Senator
from Michigan. Ross Parker, Carving Out the Rule of Law: The History of the United States Attorney’s
Office in Eastern Michigan: 1815–2008, at 45–48 (2009). Jefferson’s letter to John Garland Jefferson also
recommended, among others, Blackstone, Locke, Montesquieu’s Spirit of Laws, and Vattel’s Law of Nations.
In the latter book, Vattel advised in a section on the “Degree of punishment”: “It is not so much the cruelty
of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the
bounds of duty.” Vattel, Law of Nations, bk. 1, § 171. Jefferson also recommended that another young man,
William Munford, read writers such as Beccaria, Locke, Montesquieu, and Vattel. Course of Reading for
William G. Munford, Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas Jefferson Digital
Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/
founders/TSJN-01-30-02-0405.
Those studying the law regularly kept commonplace books. “When I was a student of the law, now half
a century ago,” Jefferson wrote of his commonplace book to Dr. Thomas Cooper in 1814, “I was in the habit
of abridging and common-placing what I read meriting it, and of sometimes mixing my own reflections on
the subject.” Those entries, Jefferson said, “were written at a time of life when I was bold in the pursuit of
knowledge, never fearing to follow truth and reason to whatever results they led.” TJ to Dr. Thomas Cooper
(Feb. 10, 1814). In his commonplace book, Jefferson cited the Ten Commandments and other Biblical
passages; wrote down the doctrine of lex talionis, expressed as “an eye for an eye, tooth for a tooth, hand
for hand, foot for foot, burning for burning, wound for wound, strife for strife”; and cited sources making
witchcraft and striking or cursing “father or mother” punishable by death. Jefferson recorded that the Ten
Commandments were never part of English common law because “they never were made so by legislative
authority.” Id.
50. Beccaria makes several other references to cruelty in his treatise. Thomas, 26 (“useless cruelty”); id. at
28 (“gratuitous cruelty”); id. at 49 (“One of the greatest checks on crimes is not the cruelty of punishments,
but the inevitability of punishment.”); id. at 51 (“If the laws are truly cruel, they must be changed.”).
51. David Lundberg & Henry May, The Enlightened Reader in America, 28 Am. Q. 262 (1976); Donald
S. Lutz, The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,
78 Am. Pol. Sci. Rev. 189 (1984); Donald Lutz, A Preface to American Political Theory 136, 138 (1992).
Madison recommended his list of books for use by Congress in 1783. In addition to Beccaria’s writings, it also
included—among many others—John Locke’s Two Treatises on Government, Montesquieu’s and Voltaire’s
works, Blackstone’s Commentaries on the Laws of England, Coke’s Institutes, and the “Fredencian Code”
of Prussian King Frederick II. Along with requesting the acquisition of various state laws, Madison’s list
further recommended titles on the “Law of Nature and Nations,” including books by Hugo Grotius, Samuel
9
Puffendorf, and Emerich de Vattel. Report on Books for Congress, J. C. A. Stagg, ed., The Papers of James
Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.upress.
virginia.edu/founders/JSMN-01-06-02-0031. Historically speaking, 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).
52. Raymond Paternoster, Capital Punishment in America 3 (1991) (“most framers of the Constitution
were both knowledgeable and tolerant of the death penalty”); John D. Lawson, ed., American State Trials:
A Collection of the Important and Interesting Criminal Trials Which Have Taken Place in the United
States, from the Beginning of Our Government to the Present Day, Vol. XIII, at 7 (1917) (noting that New
Hampshire Gov. John Langdon, one of the signers of the Constitution, allowed the execution of Josiah
Burnham to proceed after granting a four-week reprieve); 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.”); JA 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.”); JA 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.”).
53. New York’s legislature agreed, passing a law restricting capital punishment to four crimes: treason,
murder, abetting murder, and stealing from a church. Stahr, 345. Saying that piracy is “dishonorable,”
“pernicious in its consequences,” and “must be suppressed,” James Monroe also took the view that “[t]oo
much lenity will be cruelty.” Even so, Monroe was open to terms of imprisonment for pirates, with just a few
executions to serve as “examples.” As Monroe wrote John Quincy Adams in 1820: “A long imprisonment,
with some examples of capital punishment, may have the desired effect of suppressing it, and therefore
should I think be tried, being the mildest expedient.” James Monroe to JQA ( June 26, 1820); see also 3
W. Edwin Hemphill, ed., The Papers of John C. Calhoun 14 (1967) (reprinting letter to James Monroe
dated August 7, 1818 from the War Department that encloses court martial papers for a deserter, with the
letter stating: “feeling, that you would not feel disposed in time of peace to inflict capital punishment,” a
government official had been directed “to inclose the form of the sentence of approval and remission of the
punishment”). In his First Inaugural Address, President James Monroe noted “with peculiar satisfaction”
that, under the country’s new Constitution, “there has been no example of a capital punishment being
inflicted on any one for the crime of high treason.” James Monroe, Inaugural Address (Mar. 4, 1817).
54. Herodotus: The Histories 150 (Robin Waterfield, trans. 1998) (noting that when the Ethiopian
king, Sabacos, ruled Egypt, “[t]he death penalty was abolished, and instead he sentenced every Egyptian
wrongdoer, according to the seriousness of his crime, to build a dyke near his native city”). Though
Benjamin Rush at first expressed only a mild critique of Pennsylvania’s 1776 constitution, he quickly came
to vehemently oppose it, saying its creation of a unicameral legislature had led to a “mobocracy.” In 1777,
invoking Montesquieu, Dr. Rush spoke out against “a single legislature,” saying that a legislature should
be “checked” when the “life,” “liberty,” or “property” of individuals might be at stake. Hawke, 196–202;
Benjamin Rush, Observations on the Government of Pennsylvania (1777), available at University of
Chicago Press, The Founders’ Constitution, visited Jan. 31, 2011, http://press-pubs.uchicago.edu/founders/
documents/v1ch12s8.html. The Pennsylvania Constitution of 1776 lasted only until 1790. Robert F.
10
Williams, The State Constitutions of the Founding Decade: Pennsylvania’s Radical 1776 Constitution and Its
Influences on American Constitutionalism, 62 Temp. L. Rev. 541, 550, 559 (1989).
55. Marty D. Matthews, Forgotten Founder: The Life and Times of Charles Pinckney 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 a “free person of color or
slave” from the West Indies); id. at 94 (“He addressed punishment of white criminals, stating he preferred
confinement over any type of corporal or capital remedy, except in the case of murder. ‘It is moderation
which rules a people,’ he asserted, ‘and not excesses of severity.’”); Unger, Lion of Liberty, 74 (“North
Carolina’s Royal Governor William Tryon had to lead a force of 1,200 troops into the Piedmont to subdue
the rebels, who called themselves ‘Regulators.’ Largely unarmed, they had little choice but to surrender.
The governor ordered one Regulator leader executed on the spot. Of the dozens tried for treason, twelve
were found guilty and six executed. The governor gave the other six—along with 6,500 other Piedmont
Regulators—a choice of a similar fate or swearing allegiance to the Crown and the British government.”).
56. Executive Pardon, J. C. A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia
Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-03-0102-0031 (noting that Madison pardoned the slave “for divers good causes, and considerations”); Kathleen
Dean Moore, Pardons: Justice, Mercy and the Public Interest 51 (1989); Jaired Stallard, Abuse of the Pardon
Power, 1 DePaul Bus. & Com. L.J. 103, 107–8 & n.32 (2002); 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);
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); Andrew S.
Effron, Military Justice: The Continuing Importance of Historical Perspective, 2000 Army Law. 1, 5 (2000);
George Lardner Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of
Judges in Pardon Cases, 1790–1850, 16 Fed. Sent. R. 212, 214, 2004 WL 2189134 *4 (Feb. 1, 2004); Gottlieb,
Theater of Death, 226; Walter Nelles, The First American Labor Case, 41 Yale L.J. 165, 171 (1931) (noting
John Adams’ pardons of rioters sentenced to death); Mary A. Y. Gallagher, Reinterpreting the “Very Trifling
Mutiny” at Philadelphia in June 1783, 99 Pa. Mag. His. & Biography 3, 4 (1995); id. at 28 (noting that
Congress pardoned men participating in the June 1783 mutiny “at the moment their sentences were about to
be carried out”); William T. Hutchinson & William M. E. Rachal, eds., 7 The Papers of James Madison 213
n.5 (1971) (“Nagle and Morrison, after being condemned to death by the court-martial, petitioned Congress
for mercy, strengthened their plea with endorsements from Dr. Benjamin Rush and other prominent
Philadelphians, and received ‘a full, free and absolute pardon’ from Congress”); 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); 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); Executive Pardon, J. C.
A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited
Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-03-05-02-0046 (noting Madison’s pardon
of “D. McKenny, a private in the Marine Corps of the United States,” who had been sentenced to death by a
court martial); id. at n.1 (noting that Madison remitted the death penalty for several other offenders in the
early months of the war: Privates Daniel, Leonard, Conroy, McDonald, Jones, Green, and Howard, 22 July
1812; James Grant and Martin Johnson, 6 Aug. 1812; James Barrett, 6 Aug. 1812; John Miller, Robert Bennet,
Theodorus Vanilestine, and Rowland Jeffery, 21 Aug. 1812; John McCormick, 26 Oct. 1812; John Ryan, 14
11
Nov. 1812; and James Whitehurst, 1 Dec. 1812); Executive Pardons, J. C. A. Stagg, ed., The Papers of James
Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.
upress.virginia.edu/founders/JSMN-03-02-02-0249 & JSMN-03-03-02-0575 ( JM grants “a full and entire
pardon” on January 29, 1810, to five enlisted men court-martialed at New Orleans and sentenced to be “shot
to Death,” and—on October 12, 1811—remits a death sentence imposed on August 12, 1811 by a court-martial
at Baton Rouge on Sgt. Peter B. Conger of the Consolidated Infantry Regiment for the offense of desertion).
William Hull, a governor of the Michigan Territory who surrendered Fort Detroit to the British in
the War of 1812, was court-martialed for treason, cowardice and neglect of duty, with Thomas Jefferson
predicting Hull “will of course be shot for cowardice & treachery.” Hull was sentenced to be shot, but upon
a recommendation of mercy in light of his services during the American Revolution and his advanced age,
President James Madison—in a one-sentence order—pardoned him. “The sentence of the court is approved,
and the execution of it remitted,” Madison wrote. TJ to JM (Nov. 6, 1812); 2 John C. Fredriksen, American
Military Leaders: From Colonial Times to the Present 355 (1999); Samuel Clarke Clarke, Memoir of Gen.
William Hull 19 (1893); William Hull, Memoirs of the Campaign of the North Western Army of the United
States 119 (1824); Law Library – American Law and Legal Education, General William Hull Court-Martial:
1814, visited Jan. 31, 2011, http://law.jrank.org/pages/2438/General-William-Hull-Court-Martial-1814-HullViewed-Coward.html.
Fries Rebellion resulted in forty-five persons being charged with treason. Of the twenty-two people
eventually prosecuted, however, only three resulted in death sentences. After the first trial of John Fries,
Secretary of State Timothy Pickering advised President John Adams that “an example or examples of
conviction and punishment of such high-handed offenders were essential, to ensure future obedience to the
laws, or the exertions of our best citizens to suppress future insurrections.” But the conviction of Fries was
overturned because a juror had openly expressed hostility toward him, leading to a second trial in April 1800
in which Fries was also sentenced to death. President Adams ultimately decided the execution of the three
rebels was unnecessary, finding that “their crime did not amount to treason” but that “they had been guilty
of high-handed riot and rescue, attended with circumstances hot, rash, violent, and dangerous.” Gottlieb,
Theater of Death, 224–26. Although Fries and his compatriots got a reprieve, three foreign pirates, of French
or French-Canadian descent, were executed on May 9, 1800, just a few days before Fries had originally been
scheduled to hang. Id. at 226.
59. The British seized the letters when Benjamin Hichborn, the bearer, was taken captive on
Narragansett Bay en route to Massachusetts. John Adams’s letter to James Warren, dated July 24, 1775,
contained the following sentence: “Will your Judicial hang and whip, and fine and imprison, without
Scruple?” Ironically, Hichborn had begged Adams to give him the letters to carry because, having
apprenticed under a Tory lawyer, he felt the need to prove his loyalty to the American cause. JA to James
Warren ( July 24, 1775), C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press,
Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/ADMS-06-03-02-0052.
Warren himself was a believer in strict military discipline, once saying that Lt. Col. Roger Enos—an officer
serving in Quebec who was later acquitted in a court-martial after being accused of misconduct—“certainly
deserves hanging.” James Warren to JA (Nov. 14, 1775), C. James Taylor, ed., The Adams Papers Digital
Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/
founders/ADMS-06-03-02-0162.
One letter of John Adams that he wrote in Holland to the governor of Massachusetts, and which was
also intercepted by the British and then published in 1781, read in part: “It is true, I believe, what you suggest,
that Lord North showed a disposition to give up the contest, but was diverted from it, not unlikely, by the
12
representation of the Americans in London, who, in conjunction with their coadjuters in America, have been
thorns to us indeed on both sides of the water; but I think their career might have been stopped on your side if
the executive officers had not been too timid in a point which I so strenuously recommended at first, namely,
to fine, imprison and hang all inimical to the cause, without favor or affectation.” “I would have hanged my own
brother,” Adams wrote in that letter, “if he had took a part with our enemy in this contest.” John Wood & John
Henry Sherburne, Suppressed History of the Administration of John Adams 228 (1968).
In the founding era, death was frequently seen—though not by all—as an appropriate punishment for
British soldiers or rebellious or treasonous acts. Compare Stoll, 224 (“In monarchies,” Samuel Adams argued,
“the crime of treason and rebellion may admit of being pardoned or lightly punished, but the man who dares
to rebel against the laws of a republic ought to suffer death.”) and Mayer, 347 (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, 92
n.50 (“A little rebellion now and then is a good thing,” Thomas Jefferson said, adding that “an 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 South Carolina delegate 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 officer be hanged for every house
burned). Congress itself recommended that state legislatures enact laws to inflict capital punishment on any
person directly or indirectly supplying the British with provisions. Barbara B. Oberg & J. Jefferson Looney,
eds., The Papers of Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2,
2011, http://rotunda.upress.virginia.edu/founders/TSJN-01-04-02-0148 (letter of Samuel Huntington).
60. In 1775, Abigail Adams also wrote to her husband John to lament the death of Dr. Joseph Warren at
the Battle of Bunker Hill. As she wrote: “I have just heard that our dear Friend Dr. Warren is no more but
fell gloriously fighting for his Country—saying better to die honourably in the field than ignominiously
hang upon the Gallows.” AA to JA ( June 18, 1775). As a young woman, Abigail—who married her husband
in October 1764—grew up in a milieu of particularly harsh punishments. Cotton Tufts to Abigail Smith
(Apr. 1764) (“Poor Wm. Greenleaf has been burnt, hang’d, Gibbited and I dont now what—and I am apt to
think but with very little Reason.”). The lexicon of death was so familiar in that era that one finds traces of
it everywhere, even in husband-and-wife communications. JA to AA (Feb. 28, 1779) (“[t]he Scaffold is cutt
away, and I am left kicking and sprawling in the Mire”; “if I had committed any Crime which deserved to
hang me up in a Gibet in the Face of all Europe, I think I ought to have been told what it was”).
65. In 1829, in the waning days of his presidency, John Quincy Adams sent a report to Congress on
how the federal death penalty had been employed from 1790 through 1826. The report showed that 138
defendants had been tried for capital offenses, yielding 118 convictions. Of those, forty-two offenders
were executed and sixty-four were pardoned. Of the forty-five tried for capital murder, thirty-seven were
convicted. Twenty-four were later executed; six were pardoned; and the remaining seven either died,
committed suicide, escaped, or were “unaccounted for.” Eric A. Tirschwell & Theodore Hertzberg, Politics
and Prosecution: A Historical Perspective on Shifting Federal Standards for Pursuing the Death Penalty in
Non-Death Penalty States, 12 U. Pa. J. Const. L. 57, 68 (2009) (citing H.R. Exec. Doc. No. 20–146 (1829),
reprinted in H.R. Rep. No. 53–545, app. at 6, table 1); Little, 366. The House of Representatives had
requested this report. H. Res. 545 ( Jan. 13, 1825), reprinted in H.R. Rep. No. 53–545, at 6 (1894).
67. Brian P. Block & John Hostettler, Hanging in the Balance: A History of the Abolition of Capital
Punishment in Britain 271 (1997). Canada abolished the death penalty for ordinary crimes in 1976 and for
13
all crimes in 1998. Mexico abolished the death penalty for all crimes in 2005. Amnesty International, Death
Penalty: Countries Abolitionist for All Crimes, visited Jan. 31, 2011, http://www.amnesty.org/en/deathpenalty/countries-abolitionist-for-all-crimes. Abolition of the death penalty is now a condition of entry into
the European Union. Schabas, Abolition of the Death Penalty in International Law, 302–3.
68. George Washington’s views on corporal punishments were mixed and evolved over time. As a
British officer in the 1750s in the French and Indian War, he frequently ordered the flogging of men to
curtail rampant desertions. “When a thousand lashes didn’t stop the desertions,” writes his biographer, Ron
Chernow, “he upped the penalty to a draconian fifteen hundred lashes.” “The historian Fred Anderson,”
Chernow points out, “has estimated that Washington administered an average of six hundred lashes in each
flogging, putting him on a par with his most severe British counterparts.” Chernow, Washington, 73. In 1775,
Washington approved a sentence for one man “to receive thirty-nine lashes upon his bare back” simply for
stealing some cheese. Id. at 210, 831 n.23. While Washington also once warned a young boy, a fifer, he would
be whipped if he revealed information that might have incited a disorderly military retreat, he ordinarily—in
his personal affairs—did not allow his own slaves to be whipped, though they occasionally were by overseers
with his permission. Id. at 113, 341, 640.
Chapter 3. The Abolitionists (pages 66–96)
1. Biographical Directory of the United States Congress, Benjamin Rush (1746–1813), visited May 11,
2011, http://bioguide.congress.gov. In his role as surgeon-general of the Continental Army, for example,
Dr. Rush advised John Adams against the frequent use of executions. In his letter, written from a hospital
twenty-six miles away from Philadelphia, Rush told Adams: “An Officer in Howe’s army told me they had
executed only two men in the last year. Their discipline prevents crimes. Our want of it creates them. We
have had 20 executions in the last year, and our Army is not a bit the better for them. If Howe should lie
still, desertions, sickness, accidental deaths, and executions would waste our whole army in one year.” BR
to JA (Oct. 13, 1777). For additional biographical information about Dr. Benjamin Rush, see Claire G.
Fox, Gordon L. Miller, & Jacquelyn C. Miller, eds., Benjamin Rush, M.D.: A Bibliographic Guide (1996);
John M. Kloos, Benjamin Rush, Revolutionary Physician: An Interpretation of Religion in the Republic
(University of Chicago, Ph.D. thesis, 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); and Sarah R. Riedman & Clarence C. Green,
Benjamin Rush, Physician, Patriot, Founding Father (1964).
2. J. H. Powell, Bring Out Your Dead: The Great Plague of Yellow Fever in Philadelphia in 1793, at 117
(1949) (noting that Dr. Rush’s house stood at Third and Walnut Streets). The Walnut Street Prison consisted
of a two-story, stone building 184 feet in length and 32 feet deep. The sixteen cells for solitary confinement
were contained in a three-story brick building, with the solitary confinement cells measuring six feet by
eight feet. Mease, 179–80; compare Bowen, 49–50 (“Across Walnut Street, fronting directly on the State
House yard, rose the stone prison, four stories high. . . . The dark cells for solitary confinement were in a
separate structure, and the debtors were housed apart from criminals.”). Philadelphia’s prison society sought,
among other things, to ease the “hunger,” “cold,” and “unnecessary severity” endured by prisoners. Kann, 97.
Though Dr. Rush played a key role in America’s early abolition movement, he was not the first American to
advocate the total or partial abolition of capital punishment. Banner, 100 (“The earliest American argument
for complete abolition may have been an editorial published in the Pennsylvania Evening Herald in 1785.”);
id. (“Debates over complete abolition became common in the Philadelphia press in the late 1780s and then
14
spread to other cities, especially New York, in the 1790s.”); Gottlieb, Theater of Death, 204 (describing an
article published in Pennsylvania in the Freeman’s Journal on September 7, 1785, that was highly critical of
capital punishment). A writer in the Pennsylvania Packet argued on May 19, 1787 that men “are continually
deceiving themselves with vain hopes of advantages from the terror of example, by putting their fellow
creatures to death for crimes.” Gottlieb, Theater of Death, 205.
3. Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas Jefferson Digital Edition (Univ.
of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/TSJN01-01-02-0039 (indicating applications were to be sent to John Henderson, Thomas Jefferson and John
Walker); Mease, 165–71 (detailing the treatment of prisoners in Philadelphia). Quakers were also intimately
involved in pushing for the abolition of slavery, with President George Washington himself praising the sect,
saying that “there is no denomination among us who are more exemplary and useful citizens.” Chernow,
Washington, 622–23. George and Martha Washington would themselves send leftovers to needy prisoners,
with President Washington also giving generously to a New York organization that was formed to assist
those imprisoned for debts. Id. at 133.
4. When the Walnut Street facility became overcrowded, additional Pennsylvania penitentiaries
were authorized in 1818 and 1821. In 1796, the Virginia legislature also directed the purchase of land for a
penitentiary and New York passed “[a]n Act making alterations in the criminal law of this State and for
erecting State prisons.” Massachusetts opened its own state prison in 1805. Will Tress, Unintended Collateral
Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461, 469–70 & n.73
(2009). A description of the “Philadelphia model”—based on the Walnut Street Prison—and a history of
prison reform efforts generally is found in Michel Foucault’s Discipline & Punish: The Birth of the Prison.
Foucault, 123–31, 231–56.
6. Furman v. Georgia, 408 U.S. 238, 336 (1972) (Marshall, J., concurring) (“Dr. Benjamin Rush . . .
drafted America’s first reasoned argument against capital punishment”). Rush’s March 9 essay, “An Enquiry
into the Effects of Public Punishments upon Criminals, and upon Society,” appeared in the American
Museum magazine. Am. Museum, vol. II, no. II, 142, 142–43 (2d ed. 1787). In his essay, Rush, like Beccaria,
advocated the abolition of capital punishment. Rush parted ways with Beccaria, however, on the issue of
public punishments. Whereas Beccaria favored public punishments, Rush favored private ones. Thomas, 86;
Bessler, Death in the Dark, 40. Rush himself viewed “public infamy” as “the worst of all punishments.” BR to
William Shippen (Nov. 18, 1780).
7. At that time, Dr. Rush did not oppose all corporal punishments. In his essay, Dr. Rush opined, “The
punishments should consist of BODILY PAIN, LABOUR, WATCHFULNESS, SOLITUDE, and
SILENCE. They should all be joined with CLEANLINESS and a SIMPLE DIET.” Rush, Enquiry, 13. Rush
added that he was “supported, in the application of the remedies I have mentioned, for the cure of crimes,
by the facts that are contained in Mr. Howard’s history of prisons, and by other observations.” Id. Corporal
punishments in early America—designed to humiliate the offender in the hopes of reforming the offender—
included forcing a convict to stand for hours on a gallows with a noose around his neck. Kann, 119–20. “The
most common form of official mock executions,” writes University of Connecticut law professor Steven
Wilf in Law’s Imagined Republic, “was sitting at the gallows with a rope around the neck.” “Often this
punishment was inflicted for moral crimes, such as adultery in Vermont, sodomy in Rhode Island, or dueling
in Massachusetts,” Wilf writes. “In Massachusetts,” he writes, “a woman was sentenced to sit one hour upon
the gallows with a rope around her neck for having an adulterous affair with an African American while
her husband was in the army.” “Mock executions,” Wilf explains, “were intended to alter the behavior of the
felon through a close brush with capital punishment.” One proposed bill in Connecticut from 1779 actually
15
suggested tattooing an image of a gallows on the forehead of criminals guilty of burglary, maiming, and
robbery. Wilf, 6, 88.
10. Rush held particularly passionate views on the consumption of hard liquor and the “licentiousness”
of the press. Liquor, Rush wrote, begets “quarrels” and “profane and indecent language” and frequently
leads to “jails, wheelbarrows, and the gallows.” Lambasting printers “who vend scurrility,” Rush lamented
that newspapers, “once the vehicle of pleasing and useful intelligence,” had become full of “misery and
crimes,” thus propagating a spirit of “revenge” in the community. “We read with horror the accounts of
human depravity which has converted public executions into part of the amusements of several ancient and
modern nations,” he wrote, concluding that “the depravity of the human heart is of the same nature in that
man who can read with pleasure or even indifference the mangled character of a fellow citizen in a licentious
newspaper.” “A bitter and unchristian spirit has likewise divided our citizens,” Rush wrote elsewhere. “We
have not, it is true,” he said, “erected a guillotine in our country, but we enjoy similar spectacles of cruelty in
the destruction of public and private characters in our newspapers.” Address of BR to the Ministers of the
Gospel of All Denominations ( June 21, 1788); BR to William Marshall (Sept. 15, 1798); BR to JA ( June 10,
1806); BR to TJ (Aug. 22, 1800).
Executions in early America were, in fact, widely reported in ballads, broadsides, poems, execution
narratives, and—of course—newspapers. Capital trials and executions attracted enormous press and public
attention, and individual cases often inspired petitions for mercy or calls for an execution, whether from
laypersons or the pulpit. For example, as law professor Steven Wilf reports, when a twenty-one-year-old
career criminal, Levi Ames, was sentenced to death in Boston for burglary in 1773, “there was a popular
outcry against the harshness of his punishment.” Though he was granted a one-week reprieve, he was hanged
on October 21 in front of a large number of spectators, with many lamenting his execution, especially when
others thought more deserving of death—for example, suspected murderers—somehow escaped the gallows.
His crime: stealing forty pieces of silver, Spanish pieces of eight, and some gold coins. “Must thieves,” one
anonymous author of a broadside wrote, “[b]e put to death” for stealing men’s goods? Yet, prior to the
development of penitentiaries in the 1780s, jails were not then typically thought of as places for long-term
confinement. “A jail was never intended for punishment, but only to hold the debtor till he fulfilled his
voluntary contracts; the suspected till his offence could be conveniently ascertained; and the convicted till
speedy justice could be executed,” one newspaper article declared. Wilf, 6, 15, 38, 42, 44, 46, 52, 62.
In contrast, when Ebenezer Richardson—a Boston customs officer—killed an eleven-year-old boy,
a bystander to a riot, in 1770 after the unpopular Richardson was chased into his own house by a mob
of schoolboys and fired a volley of bullets in response, there were immediate calls for his lynching and
execution. After Richardson was dragged through the streets and “cruelly abused by the Mob,” he was taken
to Faneuil Hall, examined by a panel of judges with a thousand angry people in attendance, then placed
in protective custody. The funeral for the little boy, Christopher Snider, itself led to calls for Richardson’s
execution. “When I came into town,” John Adams wrote upon returning from the countryside, “I saw a
vast collection of people near Liberty Tree—enquired and found the funeral of the child lately killed by
Richardson.” “My eyes,” Adams said, “never beheld such a funeral. The funeral extended further than can
be well imagined.” “If there was even a color of justice in the public opinion,” John Adams would write
of Ebenezer Richardson, “he was the most abandoned wretch in America.” “On the Liberty Tree,” Wilf
explains, “a placard was hung with the threat that ‘thou shall take not satisfaction for the life of a murderer—
he shall surely be put to death.’” Since no lawyer agreed to defend Richardson, Josiah Quincy was appointed
as counsel and he decided to defend the case on the basis that Richardson had not intended to kill the boy,
had acted in self-defense because “a man’s house is his castle.” If anything, Quincy would argue, Richardson
16
had committed manslaughter, not murder. After hearing the evidence, the jurors found Richardson guilty of
murder, with the jury foreman speaking with a “sullen pride of revenge.” The justices, however, delayed the
sentencing, remanded Richardson to prison, and then quietly consulted English authorities about a royal
pardon—one he would eventually receive, angering many Bostonians. Wilf, 15, 22–24, 27–37; John Phillip
Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the
Coming of the American Revolution 56–57 (1973).
11. “A belief in God’s universal love to all his creatures,” Rush wrote elsewhere, “establishes the equality of
mankind—it abolishes the punishment of death for any crime—and converts jails into houses of repentance
and reformation.” BR to Jeremy Belknap ( June 6, 1791).
12. 1 Butterfield, 73 n.4, 119, 321–22, 416 (describing the relationship between Rush and Dickinson,
their interaction during the Revolutionary War, and their successful formation of Dickinson College).
John Dickinson—who said he was “moved” by “a love of my Maker and of my fellow-creatures”—gave
significant sums of money to the Friends in Philadelphia for the poor who may be “sick and in prison.”
Stille, 328. Dickinson, who called the right of trial by jury “sacred” and said he was “taught to love
humanity,” would draft in his own hand an Act for the Gradual Abolition of Slavery in Delaware. The draft
legislation, proposed in 1785, provided in clause fourteen that “in all Cases where Sentence of Death shall
be pronounced against a Slave the Jury by whom he or she shall be tried shall appraise and declare the Value
of such Slave and if such Sentence shall be executed the Court shall make an Order on the State Treasurer
payable to the Owner for the Amount of such appraised value.” Id. at 323–24, 424, 431; 1 Paul Leicester
Ford, ed., The Writings of John Dickinson 243, 307 (1895).
The “wheel-barrow men,” accompanied by guards, were “weighted down” with a “ball and chain,” with
one diarist, Ann Warder, noting that prisoners “have an iron collar around their neck and waist to which a
long chain is fastened and at the end a heavy ball.” “Their clothing,” Warder recorded, “is a mixture of dark
blue and brown,” with the prisoners wearing “colored woolen caps” so that “an attempt to escape would early
be discovered.” Gottlieb, Theater of Death, 197. On the subject of criminal law reform, Rush anticipated
the repeal of the wheelbarrow law, writing to his friend Jeremy Belknap: “Truth has at last prevailed upon
the subject of our penal laws. A committee of our Assembly has been appointed to revise them. Private
punishments by means of solitude and labor are now generally talked of.” BR to Jeremy Belknap (Nov. 5,
1788). Thomas Jefferson himself expressed the view that the wheelbarrow law had produced unwanted,
unintended consequences. He wrote that men “exhibited as a public spectacle, with shaved heads and mean
clothing, working on the high roads, produced in the criminals such a prostration of character, such an
abandonment of self-respect, as, instead of reforming, plunged them into the most desperate and hardened
depravity of morals and character.” Masur, 78; see also id. at 80 (“In January 1788, the Philadelphia Society
for Alleviating the Miseries of Public Prisons petitioned the legislature against punishments ‘publickly and
disgracefully Imposed.’”).
14. Like his brother, Richard Rush also fought in a duel, against a man named Peter Brown, a member of
the Philadelphia bar, though no party was injured in that duel. 3 Frank M. Eastman, ed., Courts and Lawyers
of Pennsylvania: A History, 1623–1923, at 777 (1922). Dueling was a fact of eighteenth-century life, tolerated
though frequently condemned. See Kann, 71–72:
First-generation Americans, North and South, were ambivalent about dueling. They outlawed it
but tolerated it. Shortly after the Revolution, George Mason wrote to George Washington that one
of Washington’s distant relatives had mortally wounded a dueling opponent. Mason noted that the
young duelist “may not be strictly justifiable in a legal sense” but “he has done no more than any man
of sensibility and honor would have thought himself obliged to do under the same circumstances.”
17
Mason advised Washington to allow the young man to remain in the army until passions cooled and
a fair trial was possible, implying that a dispassionate jury would acquit the duelist.
15. 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).
16. References to God and the Bible were especially common in the founding era when it came to the
subject of punishment. Samuel Adams spoke of “the laws of the Creator,” which he said “are imprinted by the
finger of God on the heart of man.” The cousin of John Adams, Sam Adams called for “a virtuous education”
that would inspire in youth “a profound reverence for the Deity” and that would “reach and influence
the heart” and “prevent crimes.” Stoll, 3, 244. The Vermont revolutionary Ethan Allen—the leader of the
Green Mountain Boys—also expressed the view that God, “instead of inflicting eternal damnation on his
offending children, would rather interchangeably extend his beneficence with his vindictive punishments,
so as to alienate them from sin and wickedness.” Citing the example of “[t]he barbarous zeal of the prophet
Samuel in hewing Agag to pieces after he was made prisoner by Saul,” Col. Allen wrote that “such cruelty”
would not be permitted “towards a prisoner in any civilized nation at this day.” Though Allen wrote that a
murderer “ought to suffer for the demerit of his crime,” he also emphasized that “the great end and design
of punishment, in the divine government, must be to reclaim, restore, and bring revolters from moral
rectitude back to embrace it.” “[A]n eternal punishment,” he wrote, “would defeat the very end and design
of punishment itself.” Ethan Allen, Reason, the Only Oracle of Man; or a Compendious System of Natural
Religion 26–28, 100, 147 (1854); Kaye, 109.
17. Rush—like many of the Founding Fathers—believed strongly in appeals to posterity. In a letter he
wrote to a minister in Boston, Rush urged the minister to continue his “researches into the true meaning of
the Scriptures.” “Your works,” he said, “however much neglected or opposed now, will be precious to those
generations which are to follow us, and, like the bones of Elisha, will perform miracles after your death.” BR
to Elhanan Winchester (Nov. 12, 1791). Rush also told Thomas Jefferson that laws regulating the importation
of malignant fevers “are absurd, expensive, vexatious, and oppressive to a great degree.” “Posterity,” Rush said,
“will view them in the same light that we now view horseshoes at the doors of farmers’ houses to defend
them from witches.” BR to TJ (Aug. 5, 1803); compare BR to Noah Webster ( June 20, 1799) (“I feel the same
pity and contempt for men in company who defend the importation of the yellow fever that I do for the first
settlers in New England who believed in witchcraft.”).
18. The first recorded activity of the Philadelphia Society for Alleviating the Miseries of Public Prisons
was the introduction, in 1787, of religious services into the Walnut Street Jail. Leonard G. Leverson,
Constitutional Limits on the Power to Restrict Access to Prisons: An Historical Re-examination, 18 Harv.
C.R.-C.L. L. Rev. 409, 451 & n.185 (1983). In June 1789, Rush had written Lettsom to thank him “for the
copy your friendship has procured me of Mr. Howard’s late work,” An Account of the Principal Lazarettos in
Europe. “As soon as I receive it,” Rush told Lettsom, “I shall do myself the honor of thanking him for it.” “I
have derived many advantages from reading his first work,” Rush explained, “and can add further that all the
improvements in the treatment and punishment of criminals in our country are derived from it.” BR to John
Coakley Lettsom ( June 8, 1789).
20. Dr. Rush later wrote John Adams to say that several things he (Rush) had done had made his “fellow
citizens” so “hostile” that Rush sometimes felt he was living “in an enemy’s country.” Among the ones he listed
were “opposing the wheelbarrow Constitution of Pennsylvania in 1776 and the men who supported it” and
“writing down the old sanguinary criminal law of our state, by which I made many Old Testament divines
and saints my enemies.” BR to JA (Dec. 26, 1811). An opponent of slavery and capital punishment, Rush—
18
while supportive of the use of force during the Revolutionary War—also came to oppose war. BR to Noah
Webster (Dec. 29, 1789); BR to John Coakley Lettsom (Sept. 28, 1787); BR to RHL (Dec. 21, 1776); BR to
RHL (Dec. 30, 1776); BR to Jeremy Belknap ( June 21, 1792); BR to James Thornton (Sept. 3, 1792); BR to
John Montgomery ( June 16, 1797).
21. Rush, Medical Inquiries, 189 (describing solitude as “indispensably necessary” to addressing madness
because “[t]he passions become weak” by “refraining from conversation,” with Rush recommending that
“visitors should be excluded from the cells and apartments of highly deranged people”); id. at 190 (Rush
recommends darkness “accompany solitude” in the first stage of treating madness because it “invites to
silence, and it induces a reduction of the pulse”).
23. Rush later published an essay, “Thoughts upon the Amusements and Punishments Which Are Proper
for Schools,” in the Columbian Magazine. BR to Jeremy Belknap (Aug. 25, 1790). Rush considered “corporal
punishments, inflicted in an arbitrary manner, contrary to the spirit of liberty.” They “dishonor and degrade
our species,” he said, producing “baneful passions” and “a spirit of violence.” Kann, 99.
25. The common-law distinction between murder and manslaughter was one noted by colonial lawyers
such as John Adams in criminal defense work. Adams’ Argument and Report, Special Court of Admiralty,
Boston, June 1769, C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda,
2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/ADMS-05-02-02-0008-00020007.
30. From 1793 to 1796, Caleb Lownes—who maintained a life-long interest in penal reform—supplied
Thomas Jefferson with iron for his nailery. TJ to Caleb Lownes (Dec. 18, 1793); TJ to JM (Apr. 24, 1796);
Thomas Jefferson’s Monticello, Caleb Lownes, visited Feb. 8, 2011, http://www.monticello.org/site/researchand-collections/caleb-lownes. After the Virginia legislature decided to build a state penitentiary, George
Wythe sent Jefferson, who he called “my best friend,” a letter in 1800 in which Wythe noted: “George Keith
Taylor sent to me a letter written to him by Caleb Lownes, in which that benevolent man consenteth to
superintend our hospital for reception and amendment of sinners formerly doomed to the gibbet.” Lownes
was seeking an appointment to the post of the penitentiary in Richmond, though the job went to another
man, Martin Mims. George Wythe to TJ (Feb. 22, 1800).
31. 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.”); id. at 343 (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”). Even before the publication of Dr. Rush’s essays, Pennsylvania had witnessed some
reform. Banner, 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.
32. In his annual legislative message, Pennsylvania Governor Simon Snyder recommended in 1809 that
life imprisonment be substituted for the death penalty. A Senate committee also favored abolition, believing
19
the time had come “for giving the last stamp of greatness and humanity to the character of Pennsylvania.” On
a 16 to 12 vote, however, the full Senate preferred to postpone the issue. Post, 42; see also Mease, 163 (“Such
has been the effect of the abolition of the spectacles of public executions, upon the feelings of the citizens
of Pennsylvania, that it is now difficult to obtain a jury that will find a man guilty of murder, even when it is
attended with circumstances of malice and cruelty; for which reason, governor Snyder has recommended, in
a message to the legislature of Pennsylvania, to abolish the punishment of death in all cases whatever.”).
34. Only two men, Philip Vigol (also referred to as Philip Wigle) and John Mitchell, were sentenced
to die in the wake of the Whiskey Rebellion. Vigol had been involved in beating up Benjamin Wells—a
man who gave the Justice and Treasury Departments names of delinquent distillers—and burning Wells’s
house, and Mitchell—widely considered a simpleton—had been sent by another participant in the Whiskey
Rebellion, the wealthy lawyer and populist David Bradford, to rob some mail. The death sentences, observers
reported, were inevitable given the way in which jurors were instructed. “[W]ith respect to the evidence, the
current runs one way; it harmonizes in all its parts,” jurors were told. “[T]here is not, unhappily, the slightest
possibility of doubt,” jurors were informed as to Vigol’s intentions. Hogeland, 24, 238; Thomas P. Slaughter,
The Whiskey Rebellion: Frontier Epilogue to the American Revolution 220 (1988). President John Adams
later issued a pardon to David Bradford, who had fled out of state during the Whiskey Rebellion. Noting
that Bradford had expressed his “contrition” and “sincere repentance” and saying that the “principle” purpose
of “punishment” was “the reformation of offenders and the prevention of crimes in others,” Adams granted
a “full” pardon to Bradford in 1799 “for all treasons, suspicions of treasons, felons, misdemeanors and other
crimes and offenses by him committed or done against the United States, in relation to the Insurrection.”
Hogeland, 123, 163–64; The David Bradford House of Washington, PA, visited Jan. 31, 2011, http://www.
bradfordhouse.org/history.html; John Adams, David Bradford’s Pardon (Mar. 9, 1799), visited Jan. 31, 2011,
http://www.whiskeyrebellion.info/bradford3/pardon.htm.
35. Rush credited “Mr. Fawcett’s sermons” for several of his “expressions” upon “the cruelty of capital
punishments.” Rush, Sixteen Introductory Lectures, 393. Suicide itself was once considered a criminal act.
Cruzan by Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 295 (1990) (Scalia, J., concurring) (“At
common law in England, a suicide—defined as one who ‘deliberately puts an end to his own existence,
or commits any unlawful malicious act, the consequence of which is his own death,’ 4 W. Blackstone,
Commentaries—was criminally liable. Although the States abolished the penalties imposed by the common
law (i.e., forfeiture and ignominious burial), they did so to spare the innocent family and not to legitimize
the act.”).
36. Madison and Bradford developed an especially close friendship at Princeton. When they parted ways
on their way home from college in April 1772, they agreed to write often for “pleasure and improvement.”
Bradford wrote first to “My dear Jemmy,” and Madison promptly reciprocated, addressing his letter to “My
dear Billey.” Ketcham, 52; see also id. at 34 (“In the classes of 1772, 1773, and 1774, Madison’s closest friend,
perhaps his favorite of all Princeton associates, was William Bradford of the famous Philadelphia printing
family.”).
38. Montesquieu also argued against the severity of punishments. To punish thieves as one would
murderers, Montesquieu contended, was to destroy any just proportion between crimes and punishments.
Masur, 51. The invocation of Montesquieu by those in America’s founding era was regularly accompanied
by profuse praise, with people describing him as “a great writer,” “the great Montesquieu,” and a “celebrated
author.” John Dickinson called him “a very learned author”; James Madison and Alexander Hamilton
both called him “the celebrated Montesquieu”; and the Continental Congress itself—in an address to the
inhabitants of Quebec—spoke of him as “an illustrious author,” “immortal,” and “a name which all Europe
20
reveres,” for he is a “truly great man” and an “advocate of freedom and humanity.” Gary L. McDowell &
Johnathan O’Neill, eds., America and Enlightenment Constitutionalism 124–25 (2006).
42. In contrast to Pennsylvania’s one capital crime of murder—though treason, too, remained
punishable by death under English common law—Massachusetts had sixteen capital crimes. Calvert, 149.
Early Pennsylvanians were especially reluctant to use capital punishment. “The reason for this,” scholar Jane
Calvert points out, “was that Friends believed that if they killed a man, ‘he would have no time to repent.’”
Id. “[T]here were,” Calvert notes, “only two capital punishments carried out in the first thirty-six years of
Pennsylvania government.” Id. William Penn—the Quaker leader who had been persecuted in England
for preaching a prohibited sermon—had himself witnessed two executions in England in 1685, so had firsthand experience with the cruelty of state-sanctioned killing. Basil Montagu, The Rise and Progress of the
Mitigation of the Punishment of Death from the Year 1520 to the Year 1687, at 42–43 (1822), reprinted in 4
Crimmins; 1 Schwartz, 131. The Frame of Government for Pennsylvania, put in place in 1682, provided that
“all prisons shall be work-houses, for felons, vagrants, and loose and idle persons; whereof one shall be in
every county.” It also provided that “the estates of capital offenders, as traitors and murderers, shall go, onethird to the next of kin to the sufferer, and the remainder to the next of kin to the criminal.” Id. at 134–44.
43. In his “Great Act” of 1682, William Penn, Pennsylvania’s founder and first governor, had compiled
a criminal code making only treason and deliberate murder punishable by death, but Queen Anne found it
so at variance with English law that she annulled it. Maestro, 16–17, 138; Schwartz & Wishingrad, 820–21;
Furman, 408 U.S. at 335–36 (Marshall, J., concurring). Benjamin Rush’s first American ancestor, John Rush,
had served in Cromwell’s army and later became a Quaker, following William Penn to Pennsylvania in 1683.
BR to TJ (Oct. 6, 1800); Gottlieb, Theater of Death, 206. Benjamin Rush’s family, however, abandoned
Quakerism, becoming Baptist, then Presbyterians, before becoming Episcopalians. Id. at 207. “Like all
instances of myth making,” Professor Steven Wilf notes of William Bradford’s high praise of William Penn,
“the Penn narrative relied upon some rather striking lapses of historical memory.” Wilf, 144. As Wilf writes:
“Pennsylvania’s code included branding as well as castration for a second rape offense. African Americans
were subject to a two-tiered criminal justice system. For rape of a white woman, buggery, and burglary, the
penalty was death. Attempted rape of a white woman might be punished by castration.” Id. at 145; see also
id. (“Given the Penn myth, it was ironic that the Crown found castration a cruel and unusual punishment
unknown in common law. The Crown called these sanctions exceptional and demanded repeal.”).
44. In his Spirit of the Laws, Montesquieu wrote: “Experience shows that in countries remarkable
for the lenity of penal laws, the spirit of the inhabitants is as much thereby affected, as in other countries,
with severer punishments.” “It is an essential point,” Montesquieu wrote, “that there should be a certain
proportion in punishments, because it is essential that a great crime should be avoided rather than a lesser,
and that which is more pernicious to society rather than that which is less.” Cogan, 623 (citing Spirit of Laws,
bk. 6, chs. 12, 16).
45. The term “crimes against nature” has been used for centuries. Rose v. Locke, 423 U.S. 48, 48–51
(1975); W.W. Mgmt. & Dev. Co. v. Scottsdale Ins., 769 F. Supp. 178, 180 (E.D. Pa. 1991). In State v.
Crawford, 478 S.W.2d 314 (Mo. 1972), the Missouri Supreme Court stated: “For centuries persons of
ordinary intelligence in the English-speaking community have known and understood what is meant
by ‘the detestable and abominable crime against nature.’ Blackstone referred to it as the ‘infamous crime
against nature’ and stated that the English law treated it as ‘the horrible crime not to be named among
Christians.’” Id. at 318. In Lawrence v. Texas, 539 U.S. 558 (2003), however, the U.S. Supreme Court held
that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct
was unconstitutional. In that case, Justice Anthony Kennedy—writing for the majority—noted that “there
21
is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”
Id. at 568. “Beginning in colonial times,” he wrote, “there were prohibitions of sodomy derived from the
English criminal laws passed in the first instance by the Reformation Parliament of 1533.” Id. “The English
prohibition,” he said, “was understood to include relations between men and women as well as relations
between men and men.” Id. Justice Kennedy added: “Nineteenth-century commentators similarly read
American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men
and women and between men and men.” Id.
50. Richard Henry Lee expressed similar sentiments about the execution of Louis XVI. In a letter to
his nephew, Thomas Lee Shippen, Lee wrote: “I join heartily with you in deploring the fate of Louis—His
death, with the lights I have, was cruel, unnecessary and highly impolitic.” RHL to Thomas Lee Shippen
(Apr. 15, 1793). Unlike Rush, though, Lee sought revenge on Louis XVI’s killers. As Lee wrote:
The vengeance of heaven may slumber a while, but I think it will sound; terribly, e’er long, in the
ears, hearts, & on the heads of these Murderers. I had a deep rooted affection for this good King
because he so effectually aided us in the day of our distress. [A]nd I will say with Queen Elizabeth—
“God may forgive his Murderers, but I never can”—All decency & justice are outraged, if it be true,
that these same Jacobins have Confiscated all the British & Dutch trading Vessels that they had
embargoed in the ports of France previous to their declaration of War! This is robbery & piracy with
a vengeance—It is to be hoped that the British Lion will claw these fellows handsomely for their
misdoing.
Id. In another letter to Thomas Lee Shippen, Richard Henry Lee wished the French “as much Liberty as they
can bare,” but excoriated the “present rulers,” saying “I hope that in Gods good time they will all be hanged.”
RHL to Thomas Lee Shippen (Feb. 12, 1794).
51. Benjamin Rush’s letter to James Madison, sent on February 27, 1790, enclosed a “pamphfelt” that—
in his postscript—Dr. Rush said “shew that mankind are growing wiser upon the subject of penal laws.”
According to J. C. A. Stagg, the editor of The Papers of James Madison, Rush probably enclosed his “Extracts
and Remarks on the Subject of Punishment and Reformation of Criminals.” That pamphlet, printed in 1790,
was published under the auspices of the Philadelphia Society for Alleviating the Miseries of Public Prisons.
BR to JM (Feb. 27, 1790), J. C. A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia
Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-01-13-020047. In a letter Thomas Jefferson received from Dr. Rush on May 8, 1796, Rush also spoke of both “[a] cruel
and Absurd system of penal laws” and “[a] cruel and Absurd code of laws with respect to Debtors,” signing
his name beneath his closing, “your sincere Old friend.” Barbara B. Oberg & J. Jefferson Looney, eds., The
Papers of Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011,
http://rotunda.upress.virginia.edu/founders/TSJN-01-29-02-0001.
53. Several of Rush’s letters to John Adams mention Frederick II, the King of Prussia. BR to JA ( Jan.
6, 1806); BR to JA ( July 6, 1806); BR to JA (Sept. 16, 1808); BR to JA (Apr. 1, 1809); BR to JA (Dec. 19,
1812). For information about the books in the library of John Adams—including 1775 and 1780 editions of
Beccaria’s On Crimes and Punishments—see The John Adams Library at the Boston Public Library, visited
Jan. 31, 2011, http://johnadamslibrary.org/; Personal Expenditures, February-July 1780, C. James Taylor, ed.,
The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://
rotunda.upress.virginia.edu/founders/ADMS-01-02-02-0010-0003-0001.
54. When the First Congress debated the Bill of Rights, Frederick and Peter Muhlenberg—both
of whom were active in Pennsylvania politics—kept Dr. Rush apprised of what was happening. Peter
Muhlenberg served as a pastor in Virginia before relocating to Montgomery County, Pennsylvania, and his
22
brother, Frederick—who served as a Federalist in the First Congress—was a pastor of German Lutheran
churches before settling in that county. On June 10, 1789, Peter Muhlenberg sent Rush a copy of the
amendments, asking for Rush’s “sentiments” relative to “the propriety & necessity of them” and asking that
Rush “communicate them to Doctor Franklin.” On June 25, 1789, having not received a response, Peter
Muhlenberg once again asked Rush for his “sentiments” relative to Madison’s “Propositions.” Then, on
August 18, 1789, Frederick Muhlenberg—the Speaker of the U.S. House of Representatives, who, with VicePresident John Adams, signed the resolution seeking ratification of the Bill of Rights—told Rush that he
hoped the amendments “will be satisfactory to our State” and “may restore Harmony & unanimity amongst
our fellow Citizens & perhaps be the Means of producing the much wished for Alterations & Amendments
in our State Constitution.” Unfortunately, Rush’s responses to these letters have never been found. Veit,
Bowling, & Bickford, 3–5, 246 & n.1, 247, 254, 280–81, 309.
55. Following his capture and near lynching as he tried to flee London in 1688, Lord Chancellor George
Jeffreys, part of James II’s inner circle and also known as “The Hanging Judge,” was put in protective custody
and died of kidney disease in 1689 while in the Tower of London. Pincus, 262–63; BBC, Judge Jeffreys, visited
Jan. 31, 2011, http://www.bbc.co.uk/wales/northeast/guides/halloffame/historical/judge_george_jeffreys.
shtml.
57. At that time, many others also spoke of the need to curtail abuses of power. For example, “The
Impartial Examiner” wrote that “[e]very man has a natural propensity to power” and that “[t]here is
something so exceedingly bewitching in the possession of power that hardly a man can enjoy it, and not be
affected. . . . Nay, it is a melancholy reflection that too often the very disposition itself is transformed,—and
for the gratification of ambitious views, the mild, the gentle, humane—the virtuous become cruel and
violent, losing all sense of honor, probity, humanity and gratitude.” The Impartial Examiner even suggested a
remedy “as no human foresight can penetrate so far into future events, as to guard always against the effects
of vice.” The remedy suggested was a maxim of the kind so typically employed in the law: “Hence, should it
not be a maxim, never to be forgotten—that a free people ought to intrust no set of men with powers, that
may be abused without controul, or afford opportunities to designing men to carry dangerous measures into
execution, without being responsible for their conduct?” “[I]s it not the greatest imprudence to adopt a
system, which has an apparent tendency to furnish ambitious men with the means of exerting themselves—
perhaps to the destruction of American liberty?” it was argued in the debate over the Constitution’s
ratification—and at a time before the U.S. Bill of Rights was proposed. “The Impartial Examiner,” Va. Indep.
Chronicle (Mar. 5, 1788).
58. As U.S. Supreme Court Justice Joseph Story once explained: “The common law of England is not
to be taken in all respects to be that of America. Our ancestors brought with them its general principles,
and claimed it as their birthright; but they brought with them and adopted only that portion which was
applicable to their situation.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 136-37 (1996) (Souter, J.,
dissenting); see also John Marshall to St. George Tucker (Nov. 27, 1800) (“I do not believe one man can
be found” who maintains “that the common law of England has . . . been adopted as the common law of
America by the Constitution of the United States”).
Chapter 4. America’s Founding Fathers (pages 97–161)
1. Displaying effigies of stamp officers was common. As Dr. Benjamin Rush reported from Philadelphia
in 1765: “An effigy of our stamp officers has been exposed to public view affixed to a gallows.” BR to Ebenezer
Hazard (Nov. 8, 1765).
23
2. Jean-Jacques Rousseau introduced the phrase “rights of man” in 1762 in Le Contrat Social, which
began, “Man is born free, and everywhere he is in chains.” Unger, Lion of Liberty, 288 n.14. The American
colonists, fond of asserting their “natural rights,” were not shy about asserting them. Id. at 16. On November
2, 1772, for example, Samuel Adams moved to create a twenty-one member committee “to state the rights
of the Colonists” at the Boston Town Meeting in Faneuil Hall. When the committee issued its statement,
“Rights of the Colonists,” on November 20, 1772, it began with a reference to the colonists’ rights “as Men.”
Among the rights it listed were “First. a Right to Life; Secondly to Liberty; thirdly to Property.” Hunt, 70;
Stoll, 97–98.
3. Richard Henry Lee complained to Sam Adams about Tory excesses in the realm of punishment, and
George Washington himself wrote to John Hancock to lament that Abraham Patten—an American spy
far less famous than Nathan Hale—had been executed. As Washington wrote of Patten, whose execution
had been noted in a New York newspaper: “His family well deserves the generous notice of Congress. He
conducted himself with great fidelity to our cause rendering Services and has fallen a sacrifice in promoting
her Interest.” GW to JH ( June 13, 1777); RHL to SA ( Jan. 18, 1780) (“Whigs always let proof precede
punishment but the Tories have usually substituted imagination for proof and excess of punishment for that
degree of it which is necessary only for prevention & example.”).
4. John Adams also wrote about this execution, telling his wife Abigail: “A poor fellow detected here as
a spy, employed, as he confesses, by Lord Howe and Mr. Galloway, to procure pilots for Delaware River and
for other Purposes, was this day at noon executed on the gallows in the presence of an immense crowd of
spectators. His name was James Molesworth.” JA to AA (Mar. 31, 1777); see also Owen Biddle, Pennsylvania
Board of War, Pennsylvania War Office (Phil.) (Mar. 31, 1777) (noting that Molesworth was “Executed this
day agreeable to the sentence of a Court Martial”).
7. George Washington said that he and his fellow soldiers fought the British “with halters about their
necks.” Before John Hancock asked Washington to read the Declaration of Independence to members of his
army, a British judge had handed down the following sentence to Irish revolutionaries: “You are to be drawn
on hurdles to the place of execution, where you are to be hanged by the neck, but not until you are dead, for
while you are still living your bodies are to be taken down, your bowels torn out and burned before your faces,
your heads then cut off, and your bodies divided each into four quarters.” Chernow, Washington, 236–37.
9. The historical record contains other gallows humor. For example, John Adams once observed: “I left
Congress on the 11th of November, 1777, that year which the Tories said, had three gallows in it, meaning the
three sevens.” Masur, 175 n.12.
10. The British government sought to decisively end the rebellion by dividing Americans and severely
punishing its most articulate leaders. In 1774, after the Boston Tea Party, England’s attorney general charged
John Hancock, Samuel Adams, Dr. Joseph Warren, and Dr. Benjamin Church with “the Crime of High
Treason” and “high misdemeanours.” He ordered the men to be brought to justice “by prosecuting Them for
their Treason” in Massachusetts or by “transmitting them hither to be tried in some County in England.”
Unger, John Hancock, 175. In 1775, British General Thomas Gage, “in his Majesty’s name,” offered amnesty
“to all persons who shall forthwith lay down their arms, and return to the duties of peaceable subjects,
excepting only from the benefit of such pardon, Samuel Adams and John Hancock, whose offenses are of too
flagitious a nature to admit of any other consideration than that of condign punishment.” Id. at 209; General
Thomas Gage Gives Amnesty to All But Samuel Adams and John Hancock ( June 12, 1775).
13. Gregory Claeys, Thomas Paine: Social and Political Thought 20 (1989) (noting Paine was born in
“the small Suffolk market town of Thetford,” “doubtless witnessed the barbarous penalties meted out” there
by the Lent Assizes for the Eastern Circuit, “was particularly aware of the cruelty of many punishments and
24
frequent use of the death penalty” because Quakers were “in the forefront of opposition to both,” and “was
delighted with Robespierre’s efforts to abolish the death penalty”); Kaye, Thomas Paine, 23 (“Gallows Hill
itself could be viewed from the Pain family cottage in the area of town known as the Wilderness. Its grisly
images made a lasting impression on the young Tom, who grew up not only sympathetic to the plight of the
poor but also firmly opposed to capital punishment.”).
16. Measures pertaining to currency and banks, as the heated controversy over the Bank of the United
States illustrates, generated extraordinarily inflammatory language. Jefferson, for example, opposed the
new bank and sent a fiery letter to Madison in which he contended that the power to charter banks and
corporations remained with the states. “For any person to recognize a foreign legislature in a case belonging
to the state itself,” Jefferson said, alluding to the U.S. Congress, “is an act of treason against the state.” “And
whosoever shall do any act under color of authority of a foreign legislature—whether by signing notes,
issuing or passing them, acting as director, cashier or in any other office relating to it,” Jefferson warned, “shall
be adjudged guilty of high treason and suffer death accordingly by the judgment of the state courts.” Chernow,
Alexander Hamilton, 352.
19. In 1780, John Adams had written to his wife Abigail that “London is in the Horrors.” He described
“Mobs” that “broke out into Violences of the most dreadful Nature—burnt Lord Mansfields House,
Books, Manuscripts—burnd the Kings Bench Prison, and all other Prisons—let loose all the Debtors
and Criminals.” Adams told his “dear Portia”: “Many have been killed—martial Law proclaimed—many
hanged—Lord George Gordon committed to the Tower for high Treason—and where it will end God only
knows.” “Examples are necessary,” Adams wrote, adding: “It is to be hoped that all will not escape into the
Grave, without a previous Appearance, either on a Gibbet or a scaffold.” JA to AA ( June 17, 1780).
22. Of what was transpiring in France, Jefferson told Maria Cosway: “The cutting off heads is become
so much á la mode that one is apt to feel of a morning whether their own is on their shoulders.” Chernow,
Alexander Hamilton, 317. Gouverneur Morris later wrote Thomas Jefferson from Paris: “Here, they hang
people for giving their opinion in favor of Royalty,” that is, “they cut off their heads.” Gouverneur Morris to
TJ (Apr. 19, 1793).
25. Tench Coxe—who had once been a loyalist—had himself escaped severe punishment only through
his family’s association with Pennsylvania’s chief justice, Thomas McKean. Jacob E. Cooke, Tench Coxe and
the Early Republic 42 (1978).
27. Robespierre—who failed to convince the National Assembly to do away with executions—later
changed his position, calling for the execution of Louis XVI. Though Robespierre said “the death penalty
in general is a crime” and “can be justified only in cases where it is necessary for the security of the person
or the state,” Robespierre felt that “neither prison nor exile” could destroy the king’s influence. “Louis must
die in order that our country must live,” he said. After overseeing France’s Reign of Terror, Robespierre was
guillotined. Maestro, 153–54; Ishay, 90; Schabas, Abolition of the Death Penalty in International Law, 5; Paul
Rosenzweig, Targeting Terrorists: The Counterrevolution, 34 Wm. Mitchell L. Rev. 5083, 5084 (2008).
30. Two men, John Bly and Charles Rose, were executed at Lenox, Massachusetts, in December 1787 in
the aftermath of Shays’s Rebellion. In contrast, on June 21, 1787, convicted rebels Jason Parmenter and Henry
McCullough were paraded to the gallows until the local sheriff read a reprieve. As historian Louis Masur
explains: “Most of the condemned Shaysites received pardons or commutations from the Governor, but not
before prompting a discussion over whether or not the State should execute captured insurgents.” Masur,
29–33.
31. When Spain protested that “certain individuals of Georgia” had entered the State of Florida and
“seized and carried into Georgia, certain persons, whom they claimed to be their slaves,” a question arose
25
as to whether the federal government had jurisdiction “of these offences.” Although a legal opinion was
prepared pointing out that Congress had been given the power “to define and punish piracies and felonies
committed on the high seas, and offences against the law of nations,” the opinion noted that “these offences
were not committed on the high seas, and consequently not within that branch of the clause.” The opinion
then pondered: “Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st.
in nature 2. usage 3. convention?” “So much may be said in the affirmative, that the Legislators ought to send
the case before the judiciary for discussion,” the legal opinion concluded. On December 3, 1792, Thomas
Jefferson added a postscript to that opinion, writing that “[o]n further examination it does appear that the
11th. Section of the judiciary act above cited gives to the Circuit courts exclusively cognizance of all crimes
and offenses cognizable under the authority of the U.S. and not otherwise provided for.” Still, Jefferson
had multiple questions: “1. what is the peculiar character of the offence in question, to wit, treason, felony,
misdemeanor or trespass? 2. What is it’s specific punishment, capital or what? 3. whence is the venue to
come?” Opinion on Offenses against the Law of Nations, Barbara B. Oberg & J. Jefferson Looney, eds., The
Papers of Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011,
http://rotunda.upress.virginia.edu/founders/TSJN-01-24-02-0681.
32. Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal
Jurisdiction, 45 Emory L.J. 1, 25–26 (1996) (“Debate on substantive criminal law issues almost exclusively
consisted of four main topics: piracy, crimes against the law of nations, treason, and counterfeiting.”); Ryan
Norwood, None Dare Call It Treason: The Constitutionality of the Death Penalty for Peacetime Espionage, 87
Cornell L. Rev. 820, 845 n.170 (2002) (“During a debate over the treason clause, Rufus King warned that
‘the controversy relating to Treason might be of less magnitude than was supposed; as the legislature might
punish capitally under other names than Treason.’”); Todd David Peterson, Congressional Power over Pardon
& Amnesty: Legislative Authority in the Shadow of Presidential Prerogative, 38 Wake Forest L. Rev. 1225, 1230
(2003). At Virginia’s ratifying convention, the record reveals that George Mason argued that the President
should not be given the pardoning power. “If he has the power of granting pardons before indictment, or
conviction,” Mason said, “may he not stop inquiry and prevent detection? The case of treason ought at
least to be excepted. This is a weighty objection with me.” Virginia Ratifying Convention ( June 18, 1788).
Notably, James Wilson and Robert Morris—who speculated in land—both ended up doing time in prison as
debtors. Rappleye, 506–7, 510–11.
33. George Mason, “Objections to the Constitution of Government formed by the Convention,” John
P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds.,
The Documentary History of the Ratification of the Constitution Digital Edition (Univ. of Virginia Press,
Rotunda, 2009), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN-02-08-020001-0030-0002 & RNCN-03-14-02-0040-0002. Mason’s objections began, “There is no Declaration of
Rights,” and said that “[n]or are the People secured even in the Enjoyment of the Benefits of the common
law.” Id. Mason sent a version of his objections to the proposed Constitution to George Washington, and
his objections were frequently reprinted in newspapers and vigorously debated. GM to GW (Oct. 7, 1787);
Mass. Centinel (Nov. 21, 1787); Reply to George Mason’s Objections to the Constitution, New Jersey J. (Dec.
19 & 26, 1788); “Civis Rusticus,” Va. Indep. Chronicle ( Jan. 30, 1788); “Marcus,” Norfolk and Portsmouth J.
(Mar. 12, 1788); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s
Secret Drafting History, 91 Geo. L.J. 1113, 1151 n.142 (2003) (noting that George Mason’s “Objections” were
published in “at least twenty-seven newspapers from Maine to South Carolina”).
34. The definition of treason was the subject of intense debate because of abusive prosecutions for
treason—and because people had such different views on what treason meant. “It is essential to the
26
preservation of liberty,” Gouverneur Morris argued, “to define precisely and exclusively what shall constitute
the crime of treason.” “In Massachusetts,” the Harvard-educated lawyer Rufus King said, “one assembly
would have hung all the insurgents” in Shays’s Rebellion, while “[t]he next was equally disposed to pardon
them all.” Bowen, at 221–22.
35. The consequence of a death sentence under the English common law—as Blackstone reported—
was “attainder.” Reynolds, 182; McMullen, 989 F.2d at 604. The judgment was said to mark with infamy
the person to be executed, and the effect of common-law attainder was forfeiture to the crown of real and
personal property and “corruption of blood,” which meant the attainted person could neither inherit from
ancestors nor transmit wealth or title to heirs. The Constitution itself provides that “no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” The attainder
that followed a court-approved death sentence is to be distinguished from a “bill of attainder,” a legislative
action imposing a punishment without a trial. Id. at 604–5; U.S. Const., art. III, § 3.
The British Parliament first enacted bills of attainder around 1300, and bills of attainder were enacted
in America during the Revolutionary War. McMullen, 989 F.2d at 605. “No doubt,” Thomas Jefferson wrote,
“that these acts of attainder have been abused in England as instruments of vengeance by a successful over a
defeated party.” “But what institution,” he pondered, “is insusceptible of abuse in wicked hands?” TJ to L.
H. Girardin (Mar. 12, 1815). According to Jefferson, a bill of attainder “prescribes” to the affected person “a
sufficient time to appear and submit to a trial by his peers; declares that his refusal to appear shall be taken as
a confession of guilt, as in the ordinary case of an offender at the bar refusing to plead, and pronounces the
sentence which would have been rendered on his confession or conviction in a court of law.” Id.
36. Fletcher v. Graham, 192 S.W.3d 350, 377 (Ky. 2006); Ex parte Garland, 71 U.S. 333, 380 (1866);
Murphy v. Ford, 390 F. Supp. 1372, 1373 (D. Mich. 1975). The President’s power to grant reprieves or
conditional commutations, even for death sentences, is clear. Ex parte Wells, 59 U.S. (18 How.) at 309; United
States v. Wright, 56 F. Supp. 489, 492 (D. Ill. 1944); United States v. Taveras, No. 04-CR-156, 2006 WL
473773 (E.D.N.Y. Feb. 28, 2006), aff ’d, 514 F.3d 193 (2d Cir. 2008).
37. An Anti-Federalist from Beverly, Massachusetts, Nathan Dane served in the Confederation Congress
from 1786 to 1788. After becoming a Federalist in July 1788, however, Dane did not get reelected. Veit,
Bowling, & Bickford, 303. The Ordinance of 1784—the predecessor to the Northwest Ordinance—was
drafted by Thomas Jefferson but did not contain any cruel or unusual punishments provision. See The
Ordinance of 1784, reprinted in Peter S. Onuf, Statehood and Union: A History of the Northwest
Ordinance 46–49 (1987). A draft of the Ordinance of 1784, attributed to Jefferson, who served on the
committee that prepared it, had proposed the following: “That after the year 1800 of the Christian era there
shall be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of
crimes, whereof the party shall have been duly convicted to have been personally guilty.” George Rutherglen,
State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1372 & n.17 (2008). The
first proposed amendment to the Ordinance of 1784 was made on March 16, 1785, but by then Jefferson
had already left for Europe. Duffey, 937 n.47; see also Rutland, 101–3 (describing committee members as
including Thomas Jefferson, James Madison, James Monroe, and Rufus King).
The Northwest Ordinance was passed by the Continental Congress (also known as the Congress of the
Confederation) on July 13, 1787, then was re-enacted in substantially verbatim form by the First Congress
on August 7, 1789. 1 Stat. 50 (1789); Kevin D. Evans, Beyond Neutralism: A Suggested Historically Justifiable
Approach to Establishment Clause Analysis, 64 St. John’s L. Rev. 41, 44 n.9 (1989); Patrick M. Garry, Religious
Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of
Religion, 57 Fla. L. Rev. 1, 19 n.133 (2005). Ironically, the day before the Continental Congress in New York
27
City approved the Northwest Ordinance, the Constitutional Convention in Philadelphia approved the
three-fifths compromise. Brooke E. Newborn, Correcting the Common Misreading of the “Three-Fifths” Clause
of the U.S. Constitution: Clarifying the “Hostile Fraction,” 80 Penn. Bar Ass’n Q. 93, 96 (2009).
39. A 1748 fugitive-slave law made it lawful in Virginia “for any person . . . to kill and destroy” any slave
who did not surrender “by any ways or means, without accusation or impeachment of any crime for the
same.” Chernow, Washington, 116–17. In the founding era, one “Phileleutheros”—after commenting that
“[o]ften do we see unhappy convicts led forth to execution for only taking the property of another”—put it
this way: “The Congress by the new Constitution are to make laws for the punishment of piracy and murder
upon the high seas—But all this seems only to respect white people—the Africans may be pirated, hacked
and tortured, and all with impunity. The killing a negroe in the southern states is no more accounted of, than
the killing a dog—this is a fact.” Phileleutheros, Hampshire Gazette (4 June), John P. Kaminski, Gaspare J.
Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds., The Documentary History of
the Ratification of the Constitution Digital Edition (Univ. of Virginia Press, Rotunda, 2009), visited Feb. 2,
2011, http://rotunda.upress.virginia.edu/founders/RNCN-02-07-02-0003-0006-0044-0004.
43. Little, 361 (“Although a Senate Committee was appointed early in the First Session to ‘defin[e] the
crimes and offences that shall be cognizable under the authority of the United States, and their punishment,’
and the Senate passed such a bill, House action was deferred until the Second Session.”). Oliver Ellsworth—
who became a U.S. Supreme Court Justice—believed, like some of his contemporaries, in the idea of federal
common-law crimes. Andrew Lenner, A Tale of Two Constitutions: Nationalism in the Federalist Era, 40 Am.
J. Legal Hist. 72, 85 (1996); Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. Rev. 177,
178–79 n.5 (1984).
44. Congress amended the Articles of War in 1789 and 1806, with Congress rejecting a proposal in
1806 to remove the death penalty from court-martial jurisdiction. Simon, 103. The Act of April 30, 1790
allowed the use of the pillory for perjury for up to one hour, provided for hanging for murder and treason,
and included a provision allowing for the post-mortem dissection of murderers. Hadix v. Caruso, 461 F.
Supp.2d 574, 590 (W.D. Mich. 2006). A “pillory” was a locking wooden frame, with holes for the head
and hands, used to restrain offenders and expose them to public ridicule. Id. at 590 n.7. In 1785, Madison
himself presented a bill to the Virginia legislature providing that a “second time” offender “shall suffer
judgment on the pillory” for the crime of selling “diseased” meat or “unwholesome bread or drink.” Another
bill introduced by Madison that year dealt with the salaries and fees for certain officers, including those
“For putting one in the stocks” or “pillory” and “For executing one condemned to die.” A Bill Prescribing
the Punishment of Those Who Sell Unwholsesome Meat or Drink & A Bill for Ascertaining the Salaries
and Fees of Certain Officers, Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas Jefferson
Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.
edu/founders/TSJN-01-02-02-0132-0004-0076 & TSJN-01-02-02-0132-0004-0033.
Across the Atlantic, the death penalty—though a distant second to “transportation,” England’s preferred
method of punishment—was still very much in use in England in 1789 when the Judiciary Act was passed.
Devereaux, 130 (“Twelve people were sentenced to death at the September 1789 sessions of the Old Bailey,
but no less than fifty-four others received sentences of transportation.”). Because of the country’s conflict
with England and the real threat of anarchy, in America’s early years, acts of treason, rebellion and piracy
were of special concern to the new country and its legislators and courts. See, e.g., United States v. Insurgents,
26 F. Cas. 498, 499 (C.C.D. Pa. 1790) (No. 15,442); Case of Fries, 9 F. Cas. 826, 846 (C.C.D. Pa. 1799); Ex
parte Bollman, 8 U.S. (4 Cranch) 75 (1807); United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818); United
States v. Palmer, 16 (3 Wheat.) U.S. 610 (1818); United States v. Klintock, 18 (5 Wheat.) U.S. 144 (1820).
28
Jefferson himself wrote from Paris in October 1787 to express concern about men being “carried against their
will to England, where they will certainly be impressed to serve against France,” with Jefferson adding that “if
taken prisoners by the latter,” they “may perhaps be hung as pyrates.” TJ to André Limozin (Oct. 17, 1787). In
1790, Congress did nevertheless pass a law requiring the appointment of counsel in cases of treason and other
capital crimes. Act of Apr. 30, 1790, ch. IX, § 29, 1 Stat. 112, 118 (1790).
45. James Iredell, a U.S. Supreme Court Justice, instructed a grand jury in 1792 that dissection—the
topic that had generated so much debate in the First Congress—was only for cases “of very aggravating
circumstances.” Banner, 78. In England—whether to train physicians and surgeons or for its perceived
deterrent effect—there was a long tradition of dissecting the bodies of people who had been executed. Prue
Vines, The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-Mortem Examination,
29 Sydney L. Rev. 235, 238–39 (2007).
47. In some places reform took longer. Not until 1808 did Samuel Romilly succeed in repealing English
laws that punished small thefts with death; and not until 1832 was the death penalty abolished for stealing
a horse or a sheep. 1 William Canton, A History of the British and Foreign Bible Society 120 (1904).
Romilly—who repeatedly invoked Beccaria and the “cruelty” of death sentences for crimes other than
murder—had long argued that the death penalty should not be used to punish crimes pertaining to “a
mere invasion of property.” Samuel Romilly, Observations on a Late Publication, Intituled, Thoughts on
Executive Justice (London 1786), reprinted in 2 Crimmins; Samuel Romilly, Observations on the Criminal
Law of England as it relates to Capital Punishments, and on the Mode in which it is Administered (1810),
reprinted in 3 Crimmins. Samuel Romilly and Thomas Jefferson had met in London, and they dined together
with John Adams and others in 1786. Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas
Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.
upress.virginia.edu/founders/TSJN-01-13-02-0344 (letter from Benjamin Vaughan referencing “our mutual
acquaintance Mr. Romilly”).
48. Benjamin Franklin was elected to the 1776 convention to write Pennsylvania’s new constitution, and
Benjamin Rush was a central figure in discussions pertaining to that constitution. Brands, 512–13.
49. Compare BF to M. Le Veillard (Apr. 15, 1787):
You were right in conjecturing that I wrote the remarks on the Thoughts Concerning Executive
Justice. I have no copy of those remarks at hand, and forget how the saying was introduced that
it was better one thousand guilty persons should escape than one innocent suffer. Your criticisms
thereon appear to be just, and I imagine you may have misapprehended my intention in mentioning
it. I always thought, with you, that the prejudice in Europe which supposes a family dishonored by
the punishment of one of its members was very absurd, it being, on the contrary, my opinion that a
rogue hanged out of a family does it more honor than ten that live in it.
In 1782, Benjamin Vaughan had written Benjamin Franklin on the subject of “Retaliation.” As Vaughan
wrote from Paris:
I am sensible the Injuries done you, have very feelingly provoked Retaliation. It is, however a fact in
criminal Law, that tho’ there are no bounds to crimes, yet every wise society determines that there
are bounds to Punishments. If a Villain tortures my Brother, there is no civil law that determines
reciprocal torture for that Villain; & still less for that Villain’s Brother, who perhaps was wholly
averse to the crime.
Benjamin Vaughan to BF (Aug. 9, 1782).
51. GW to William Smallwood (Feb. 21, 1778) (discussing capital punishment in the context of “the
operation of our articles of war, with regard to intentional, or attempted desertion”); GW to John Lacey
29
Jr. (Feb. 21, 1778) (“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.”); GW to William Livingston (Apr. 26, 1778) (saying “it is the practice of War”
to execute “immediately” any “Deserters attending Flags”); Masur, 58 (“Under Washington’s orders scores
of men from both the continental and British armies faced the gallows.”). In an earlier letter to Robert
Dinwiddie, Washington had recommended the use of “heavy fines” or “corporal punishments” for those
aiding deserters. GW to Robert Dinwiddie (Oct. 11, 1755).
In the founding era, corporal and capital punishments were common penalties for soldiers who
committed crimes, deserted or violated military rules—as well as for those who aided the enemy. For
example, the Rules & Regulations of the Continental Army made giving intelligence to the enemy
punishable by death or such other punishment as a court martial might consider proper, with whipping an
authorized form of punishment. E.g., Minutes of the Conference (Oct. 1775) & General Orders (Sept. 14,
1778), Theodore J. Crackel, ed., The Papers of George Washington Digital Edition (Univ. of Virginia Press,
Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/GEWN-03-02-02-01750003 & GEWN-03–16–02–0644; see also Rules for the Regulation of the Navy of the United Colonies,
Phila., 1775, facsim. edn., Washington, 1944, with “Introductory Note” by Adm. Joseph Strauss), arts. 3–4,
25, 27–30, 32–35 (authorizing captains to “punish” sailors “heard to swear, curse or blaspheme the name of
God” by “causing them to wear a wooden collar or some other shameful badge of distinction,” to inflict up to
“twelve lashes” upon a “bare back with a cat of nine tails,” to “put in irons” seamen “guilty of drunkenness,”
and mandating death for murder and authorizing death—or such other punishment “as a court-martial shall
inflict”—for desertion, mutiny, or sedition), available at C. James Taylor, ed., The Adams Papers Digital
Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/
founders/ADMS-06-03-02-0076-0009.
The Founding Fathers looked to Congress and the commander-in-chief to enforce military discipline,
while recognizing that the Constitution itself set the boundaries for what Congress or the executive branch
could do. E.g., Speech of Oliver Ellsworth, Connecticut Ratifying Convention ( Jan. 7, 1788) (“In the time
of the war we had an army. Who made the laws for the army? By whose authority were offenders tried and
executed? Congress was the power. By their authority, a man was taken, tried, condemned and hanged, in
this very town. He belonged to the army; he was a proper subject of military law; he deserted to the enemy;
he deserved his fate.”); id. (“This constitution defines the extent of the powers of the general government.
If the general legislature should at any time overleap their limits, the judicial department is a constitutional
check. If the United States go beyond their powers, if they make a law which the constitution does not
authorise, it is void; and the judicial power, the national judges, who to secure their impartiality are to be
made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they
make a law which is an usurpation upon the general government, the law is void, and upright independent
judges will declare it to be so.”).
Where death sentences were pronounced, it was taken for granted that commanding officers had the
power to issue pardons or remit sentences. Resolution on Pardoning Power (May 28, 1777) (“Resolved
That the General, or Commander in Chief for the Time being Shall have full Power of pardoning, or
mitigating any of the Punishments ordered to be inflicted, for any of the Offences mentioned in the Rules
and Articles”), in C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda,
2008), http://rotunda.upress.virginia.edu/founders/ADMS-06-05-02-0124; Rules for the Regulation of the
Navy of the United Colonies, supra, arts. 43–44. Unlike the British rules, making the death penalty available
for twenty-four offenses, murder was the only offense in American naval rules specifically mandating a
30
death sentence. Id. n.25. John Adams wrote that he drew up the naval rules “by my hand,” but that they were
“examined, discussed and corrected” by the Naval Committee. Id. n.2.
52. GW to William Livingston ( Jan. 12, 1782) (“It is in vain to expect that pernicious and growing traffic
will ever be stopped, untill the States pass laws agt. it, making the penalty death. This I long ago foresaw and
recommended.”); GW to Horatio Gates (Feb. 14, 1778) (“I do not conceive I could with propriety, alter the
capital punishment into a corporal one.”); GW to Anne Cesare, Chevalier de la Luzerne (Nov. 13, 1782) (“I
have at various periods of the War written to Congress and to the States, endeavouring 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.”); see also 6 The Writings
of George Washington 497 ( John C. Fitzpatrick ed., 1937), 12 id. at 14 & 13 id. at 135, 139–40 (letters of
George Washington confirming or ordering the execution of spies); GW to Brigadier General William
Maxwell (Feb. 18, 1777) (“I wish You would lay some plan of catching the Dutch Man who is said to come to
this place every Week for Intelligence; if he appears to be a Spy I will order a Court Martial on him & have
him hanged instantly.”); 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). In one letter, Benedict Arnold told Washington that a court martial had condemned a man—one
James McCormick—for firing his gun into a house full of soldiers and killing a sergeant. Arnold noted that
he had approved the sentence, but “respited him untill your Excellency’s Pleasure in the Matter is known.”
Arnold noted that he had obtained the man’s “Confession at the Gallows” before he was reprieved, to await
Washington’s order. Benedict Arnold to GW (Sept. 25, 1775), Theodore J. Crackel, ed., The Papers of George
Washington Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.
upress.virginia.edu/founders/GEWN-03-02-02-0038.
“Retaliation is certainly just and sometimes necessary, even where attended with the severest penalties,”
Washington wrote to the Continental Congress in 1777. “But when the Evils which may and must result
from it, exceed those intended to be redressed,” he said, “prudence and policy require that it should be
avoided.” As Washington explained: “The Balance of prisoners is greatly against us, and a general regard to
the happiness of the whole, should mark our conduct. Can we imagine that our Enemies will not mete the
same punishments, the same indignities, the same cruelties to those belonging to us in their possession, that
we impose on theirs in our power?” GW to Continental Congress (Mar. 1, 1777). The issue of retaliatory
punishments—as one might expect at such a tumultuous time—was a contentious topic of discussion during
the Revolutionary War. JH to GW ( July 13, 1776); GW to Nathanael Greene (Dec. 15, 1781) (“humanity will
ever interfere and plead strongly against the sacrifice of an innocent person for the guilt of another”).
53. David Hackett Fischer, Washington’s Crossing 378 (2004) (“An American policy on prisoners
emerged after the battle of Trenton. Washington ordered that Hessian captives would be treated as
human beings with the same rights of humanity for which Americans were striving.”). In 1777, George
Washington instructed Major General Horatio Gates: “I think we ought to avoid putting in practice, what
we have so loudly complained of, the cruel treatment of prisoners.” GW to Horatio Gates (Mar. 10, 1777);
see also Theodore J. Crackel, ed., The Papers of George Washington Digital Edition (Univ. of Virginia
Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/GEWN-03-1202-0364 (Washington’s letter to Henry Laurens reads in part: “I had remonstrated against the severe &
cruel treatment of the Prisoners.”). Washington, though, viewed Indians as “beast of prey” and “a cruel
and bloodthirsty enemy,” instructing a subordinate in 1779 “to attack the Iroquois and lay waste all the
settlements around” and to reject “any overture of peace before the total ruin of their settlement is effected.”
31
David V. Baker, American Indian Executions in Historical Context, 20 Crim. Just. Stud. 315, 319 (2007);
Chernow, Washington, 358.
55. John Adams wrote to his wife Abigail of “the natural Resentment of such Atrocious Cruelties” by
British forces, singling out General Howe for his callousness. JA to AA (Apr. 13, 1777). The official American
position on British cruelties was set forth in a 1779 communication to the Commissioners to the Comte de
Vergennes signed by Benjamin Franklin, Arthur Lee, and John Adams. That diplomatic communiqué read in
part:
The cruelties of our enemies have heretofore more than once exasperated the minds of the people so
much as to excite apprehensions that they would proceed to retaliation, which, if once commenced,
might be carried to extremities; to prevent which, the congress issued an address exhorting to
forbearance, and a further trial, by examples of generosity and lenity, to recall their enemies to the
practice of humanity amidst the calamities of war. In consequence of which, neither the congress nor
any of the States apart have ever exercised, or authorized the exercise of the right of retaliation.
The Commissioners to the Comte de Vergennes (Passy, Jan. 1779).
56. Major Gen. John Sullivan to GW (Aug. 7, 1777) (recounting how, on Washington’s orders, a soldier
was ordered pardoned just minutes before his schedule execution). “In the first place,” Washington told his
French brigadier general of his regret over the Tory’s execution, “it was a matter that did not come within
the jurisdiction of martial law, and therefore the whole proceeding was irregular and illegal, and will have
a tendency to excite discontent, jealously and murmurs among the people.” “In the second,” Washington
continued, “if the trial could properly have been made by a Court Martial, as the division you command is
only a detachment from the army, and you cannot have been considered as in a separate department, there
is none of our articles of war that will justify your inflicting a capital punishment, even on a soldier much
less on a citizen.” “I mention these things for your future government,” Washington relayed, “as what is past
cannot be recalled.” Id.
On October 23, 1778, Washington also approved of some death sentences and—after reciting the
crimes for which they were imposed—said this: “Shocked at the frequent horrible Villainies of this nature
committed by the troops of late, He is determined to make Examples which will deter the boldest and most
harden’d offenders. Men who are called out by their Country to defend the Rights and Property of their
fellow Citizens, who are abandoned enough to violate those Rights and plunder that Property deserve and
shall receive no Mercy.” General Orders (Oct. 23, 1778) (GW).
58. After Washington solicited his views, Lafayette advised Washington that military punishments—
following the English custom—were “much too severe.” Saying this approach was not in line with the
American “temper,” Lafayette told Washington that he did not favor a court-martial for any officer for
neglect of duty, but only in the case of assassins, cowards and robbers and when they “deserve being cashiered
or put to death.” Major Gen. Lafayette to GW (circa Jan. 13, 1778). Lafayette told Washington, for example,
that he had heard that a landlord had been robbed and that, if this were true, the robber deserved to be
hanged. Major Gen. Lafayette to GW (Feb. 23, 1778).
61. Council of War, Council of General Officers ( June 27, 1776) (ordering that Hickey’s execution take
place the next day at 11:00 a.m.); 23 Syrett, 496; see also id. at 275–76 (noting Hamilton’s approval of a death
sentence by shooting for a deserter, private Joseph Perkins); Warrant for the Execution of Thomas Hickey
( June 28, 1776); JA to James McHenry ( July 13, 1799) (“I have received your letter of the 8th of this month,
and have read the letter from Major-General Hamilton, and the proceedings of the court-martial in the case
of Joseph Perkins. All circumstances considered, I think this instance the least capable of a pardon of any
32
which has been laid before me. I have thought it my duty to sign the warrant for his execution, and return
it inclosed with all the other papers. My own opinion is, that commission is not the exclusive evidence of
appointments to office; but as chicanery may start popular objections, if the heads of department have any
serious doubt in the case of Richard Hunt, you may submit this to them also.”).
62. Drawing upon his experience as attorney general under Elizabeth and James I, Coke defined English
crimes and their history. Thomas Jefferson took extensive notes on Coke’s writings in his commonplace
book, with one scholar noting that “it is probable that the substance of Coke’s commentary as well as
the style worked an important influence on the bill for proportioning crime and punishments on which
Jefferson worked in 1776–79.” David N. Mayer, The Constitutional Thought of Thomas Jefferson 9 (1994);
Ellis, American Sphinx, 45. In 1616, Coke himself was discharged as the Chief Justice of the King’s Bench
for his efforts to frustrate royal efforts to place the monarch’s power above the law. In 1628, after being
elected to the House of Commons, Coke played an important role in the enactment of the English Petition
of Right—an antecedent of the U.S. Bill of Rights. The Petition of Right recited that “no freeman” should
be “in any manner destroyed, but by the lawful judgment of his peers or by the law of the land”; “nor put
to death, without being brought to answer by due process of law”; and that “no man ought to be adjudged
to death but by the laws established in this our realm, either by the customs of the same realm or by acts of
parliament.” 1 Schwartz, 17–20.
63. C. James Taylor, ed., The Adams Papers Digital Edition (Univ. of Virginia Press, Rotunda, 2008),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/ADMS-05-01-01-0010 & ADMS-01-0102-0014-0003-0005 (“Two of Adams’ most spectacular cases, both of which were tried in special admiralty
courts and in both of which he saved his clients from hanging, were on charges of murder at sea.”; John
Adams’ diary entry for Thursday, “June 28” quotes Beccaria and notes that Adams represented a man accused
of rape in Worcester and that the man was acquitted and saved from the gallows). Hamilton was especially
repelled by the punitive post-war policies of Governor George Clinton. A country lawyer from Ulster
County, Clinton served as New York’s first governor and as Vice President under Thomas Jefferson and
James Madison. The post-war approach of Clinton has been described as follows: “He tried, condemned,
imprisoned, and punished the Loyalists most unmercifully. They were by his orders tarred and feathered,
carted, whipped, fined, banished, and in short, every kind of cruelty, death not excepted, was practised by
this emissary of rebellion.” Kaminski, 19.
65. After André was hanged, Hamilton left a moving, almost sentimental account of his death. “In going
to the place of execution,” Hamilton wrote of André, “he bowed familiarly as he went along to all those with
whom he had been acquainted in his confinement.” “Upon being told the final moment was at hand and
asked if he had anything to say, he answered, ‘Nothing but to request you will witness to the world that I die
like a brave man.’” “I am aware that a man of real merit is never seen in so favourable a light as seen through
the medium of adversity,” Hamilton wrote in his letter to John Laurens, adding, “The clouds that surround
him are shades that set off his good qualities.” Chernow, Alexander Hamilton, 143–44. James Madison
also took note that André “was hung as a spy” but that—“for the present”—Benedict Arnold had managed
to “escape an ignominious death.” JM to Edmund Pendleton (Oct. 10, 1780). Washington himself also
continued to seek revenge against Benedict Arnold, though Arnold—the traitor—eluded capture. Should
Arnold “fall into your hands,” Washington directed Lafayette, Arnold was to be executed “in the most
summary way.” Chernow, Washington, 387.
66. President John Adams—ever the lawyer—wanted to ensure that court martial proceedings were
being conducted properly, and looked to his military advisers to ensure that compliance. In particular,
33
Adams wanted to ensure that court-martial officers were regularly commissioned and objected to the
acceptance of a guilty plea. Steiner, 381; id. at 382 (“The cabinet thought the judgment of the court martial
probably legal and Adams finally left the question of clemency in McHenry’s and Hamilton’s hands.”).
67. President Adams came under intense criticism for his decision to extradite to Great Britain a
seaman charged with murder and mutiny aboard a Royal Navy frigate, the HMS Hermione. Thomas Nash,
who claimed to be an American citizen named Jonathan Robbins, had been a member of the ship’s crew,
which, in 1797, had mutinied, murdered the ship’s officers, then taken the ship to Spain, where they sold the
vessel. After Nash made an appearance in Charleston, South Carolina as a crewman of a different ship, he
was arrested at the request of the British consul pending extradition to Great Britain under the Jay Treaty.
Though Nash claimed his real name was Robbins and that he had been pressed into service in the British
navy against his will and had not taken part in the mutiny, Adams approved the extradition on May 21, 1799.
Nash was later turned over to the Royal Navy, taken to Jamaica, and hanged after being found guilty in a
court-martial. Accused by Republicans of sacrificing an innocent American to the British, Adams became
the subject of a congressional motion to censure for his handling of the case. “I think no circumstance since
the establishment of our government has affected the popular mind more,” Thomas Jefferson would write. In
the end, though, the censure motion—brought by New York’s Edward Livingston—was defeated 61–35. Jean
Edward Smith, John Marshall: Definer of a Nation 258–62 (1996); Sloan & McKean, 40–41.
68. After learning of Joshua Huddy’s fate, James Madison wrote to Edmund Randolph to describe
how the New Jersey militia captain had been “treated with every mark of insult and cruelty” and “finally
brought over to the Jerseys, and in cold blood hanged.” “A label was left on his breast, charging him with
having murdered one of their fraternity,” Madison noted, saying that “[t]he charge has been disproved by
unexceptionable testimony.” Madison added: “A number of respectable people of New Jersey have, by a
memorial, called aloud on the Commander-in-Chief for retaliation; in consequence of which he has, in the
most decisive terms, claimed of Sir Henry Clinton a delivery of the offenders up to justice, as the only means
of averting the stroke of vengeance from the innocent head of a captive officer of equal rank to the Jersey
captain.” 1 The Writings of James Madison: 1769–1783, at 133–36 (Gaillard Hunt ed., 1900); see also J. C. A.
Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited
Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-01-17-02-0324 (1782 letter to Edmund
Pendleton). On April 29, 1782, Congress unanimously resolved that the enemy’s “unprecedented and
inhuman cruelties, so contrary to the laws of nations and of war, will no longer be suffered with impunity”
and that Washington’s “fixed purpose of exemplary retaliation” had “their firmest support.” J. C. A. Stagg,
ed., The Papers of James Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited Feb. 2,
2011, http://rotunda.upress.virginia.edu/founders/JSMN-01-04-02-0091. In some editions of Madison’s
papers, the letter is misdated “May 1, 1781.” Id.
69. Compare Chernow, Washington, 427 (“Interestingly enough, the unsentimental Benjamin Franklin
favored a tough, uncompromising stand. ‘If the English people refuse to deliver up or punish this murderer,’
he wrote, ‘it is saying that they choose to preserve him rather than Captain Asgill.’ Aware that he might be
the target of patriotic reprisals, William Franklin fled to London.”); J. C. A. Stagg, ed., The Papers of James
Madison Digital Edition (Univ. of Virginia Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.
upress.virginia.edu/founders/JSMN-01-04-02-0091 (“Yielding to pressure from the government of France,
Congress on 7 November 1782 directed Washington ‘to set Captain Asgill at liberty.”).
70. After the duel, a New Jersey grand jury indicted Aaron Burr for murder. Chernow, Alexander
Hamilton, 718. With Vice President Burr presiding over the U.S. Senate, eleven Republican senators urged
New Jersey governor Joseph Bloomfield to terminate the prosecution, arguing that “most civilized nations”
34
refused to treat deaths as a result of duels as “common murders.” Id. at 718–19. Ironically, seven years before
the Burr-Hamilton duel, Burr himself had been James Monroe’s second in a proposed duel between Monroe
and Hamilton that Burr prevented through clever negotiation. Unger, The Last Lion, 131–32, 179. The BurrHamilton duel sparked what historian Joseph Ellis called “a crusade against dueling throughout most of the
northern states.” “Though the practice of dueling survived in the South,” as well as in a “blaze-away version
on the frontier of the West,” Ellis writes, “the stigma associated with the Burr-Hamilton duel put the code
duello on the defensive as a national institution.” Ellis, Founding Brothers, 39.
72. John Marshall—the future author of Marbury v. Madison—was another one of Wythe’s students,
with Wythe’s tutorials and lectures covering topics as diverse as politics, government, and English and
Virginia common law. In 1778, Wythe became one of three chancellors on Virginia’s high court of chancery,
and eleven years later, after a reorganization of the judiciary, he became its sole chancellor. While on the
bench, he famously articulated the principle of judicial review, ruling in Commonwealth v. Caton, 4 Call 5
(1782): “Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds
prescribed to them by the people, I, in administering the public justice of the country, will meet their united
powers at my seat in this tribunal; and pointing to the Constitution, will say to them, ‘here is the limit of
your authority; and hither shall you go but no further.’” Embracing the doctrine of separation of powers,
Wythe wrote that, because of that principle, “tyranny has been sapped, the departments kept within their
own spheres, the citizens protected, and general liberty promoted.” Wythe, who had a Quaker mother, had
left the 1787 Constitutional Convention before its completion because his wife was dying. At Wythe’s death
in 1806, Jefferson said “a purer character has never lived” and regretted that his death had been “aggravated
by the horror of his falling by the hand of a parricide.” “He was my antient master, my earliest & best friend;
and to him I am indebted for first impressions which have had the most salutary influence on the course of
my life,” Jefferson wrote. Holt, 1010–11, 1013, 1025–26; Aitken & Aitken, 54–56.
When Wythe resigned as a professor in 1789, he was succeeded by one of his former students, St. George
Tucker. Tucker, like Wythe, used Blackstone as his primary legal text, though he told his students that
American law had departed in ways from English common law. Blackstone, he said, would teach students
“what the law had been,” but that “resort to very different sources of information” had to be consulted to
know what the law “now is.” Tucker urged law students to read the federal and state constitutions, saying
“no man can pretend to a knowledge of the laws of his country, who doth not extend that knowledge to
the constitution itself.” Tucker engaged his students in debates on leading issues of the day, including the
questions of the abolition of slavery and capital punishment. The most important contribution of Tucker’s
career was his work editing Blackstone’s Commentaries on the Laws of England. Davison M. Douglas,
The Jeffersonian Vision of Legal Education, 51 J. Legal Educ. 185, 203–04 (2001); Paul Carrington, The
Revolutionary Idea of University Legal Education, 31 Wm. & Mary L. Rev. 527, 539–40 (1990).
74. Thomas Jefferson, Third Draft of the Virginia Constitution (1776), reprinted in 1 Boyd, 359; Second
and Third Drafts, Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas Jefferson Digital
Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/
founders/TSJN-01-01-02-0161-0003 & http://rotunda.upress.virginia.edu/founders/TSJN-01-01-02-01610004.
75. Jefferson remained interested in Beccaria’s book throughout his life. In a letter to Joseph Milligan,
written in 1815, Jefferson requested that Milligan “try to get” a list of just over twenty books. Among the
books Jefferson listed was On Crimes and Punishments. TJ to Joseph Milligan (Mar. 28, 1815).
The committee to revise Virginia’s laws met in Fredericksburg in January 1777, and Jefferson was asked to
draft a code of criminal law. King, 950. Jefferson saw the committee as an opportunity ripe “for fixing every
35
essential right on a legal basis,” and George Mason’s notes—the only surviving record of the 1777 meeting—
specify how some capital crimes would be punished less severely, with the notes containing no reference to
the lex talionis principle. Dubber & Farmer, 129; Broadwater, 104. Because of health problems, Thomas Lee
and George Mason—who also saw himself as unqualified because he was not a lawyer—did not continue
their work on the committee. Id. at 105; Dubber & Farmer, 130–33; Aitken & Aitken, 55. The “Plan” of the
Committee of Revisors indicates that “Treason and Murder (and no other Crime)” was “to be punished with
Death.” Plan Agreed upon by the Committee of Revisors at Fredericksburg, Barbara B. Oberg & J. Jefferson
Looney, eds., The Papers of Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/TSJN-01-02-02-0132-0002.
In his letter to George Wythe, his long-time mentor, Jefferson added: “[E]ven the membrum pro
membro of Bracton, or the punishment of the offending member, although long authorized by our law, for
the same offence in a slave has, you know, been not long since repealed, in conformity with public sentiment.
This needs reconsideration.” TJ to George Wythe (Nov. 1, 1778). Wythe himself later died under extremely
suspicious circumstances, and may have been poisoned with arsenic by a relative who was living with him.
Though murder charges were brought against George Wythe Sweeney, Wythe’s delinquent, 17-year-old greatnephew and a one-time beneficiary of Wythe’s will, Sweeney was acquitted. It is possible, one theory goes,
that the jury may not have wanted Sweeney to receive a death sentence for also poisoning a mulatto youth to
whom Wythe was giving a classical education. Holt, 1036–38.
76. Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J. 509,
539 (2004) (“Jefferson’s proportionate mutilation was merely a crude version of the elaborate taxonomy
of proportionate pain developed by another follower of Beccaria’s utilitarian theory of punishment as
deterrence, Jeremy Bentham. Bentham distinguished between various sources of proportionality, including
‘The same Instrument used in the Crime as in the Punishment,’ ‘For a Corporal Injury a similar Corporal
Injury,’ ‘Punishment of the Offending Member,’ and ‘Imposition of Disguise assumed.’”) (citing Jeremy
Bentham, The Rationale of Punishment 56–62 (London, C. & W. Reynell 1830). Bentham’s The Rationale
of Punishment was published in 1775, shortly before Jefferson began working on his bill. Bruce P. Smith, The
History of Wrongful Execution, 56 Hastings L.J. 1185, 1227 n.190 (2005).
79. In 1781 and 1782, Jefferson also wrote notes on Virginia practices to answer various “Queries” made
“by a Foreigner of Distinction.” Jefferson had a few copies printed, which he gave to friends, and a translation
of them was later published in France. They were later offered to the American public in February 1787. In
“Query XIV,” titled “The Administration of Justice and Description of the Laws?,” Jefferson wrote: “We
are told of a certain Vedius Pollio, who, in the presence of Augustus, would have given a slave as food to his
fish for having broken a glass. With the Romans, the regular method of taking the evidence of their slaves
was under torture.” “Here,” Jefferson wrote, “it has been thought better never to resort to their evidence.”
As Jefferson explained, contrasting the Roman and Virginia systems: “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.” Thomas Jefferson, Notes on the State
of Virginia iii–v, 153 ( J.W. Randolph, ed., 1853).
“The Revised Code,” Jefferson wrote, “further proposes to proportion crimes and punishments.” “This
is attempted,” he said, “on the following scale”: “Crimes whose punishment extends to life”; “Crimes whose
punishment goes to limb”; and “Crimes punishable by labor.” The scale listed the following offenses as
death-eligible: high treason, petty treason, murder, dueling and a second conviction for manslaughter. Rape
and sodomy, in the scale, were punishable by “Dismemberment,” while “Maiming” and “Disfiguring” were
punishable by “Retaliation, and the forfeiture of half the lands and goods to the sufferer.” Crimes punishable
36
by labor included manslaughter, counterfeiting money, arson, robbery, burglary, house-breaking, horsestealing, grand larceny, petty larceny, and pretensions to witchcraft. Excusable homicide, suicide, apostasy
and heresy, Jefferson wrote, were “[t]o be pitied, not punished.” Jefferson said “[a]nother object of the revisal
is, to diffuse knowledge more generally through the mass of the people,” adding: “Pardon and privilege of
clergy are proposed to be abolished; but if the verdict be against the defendant, the court, in their discretion,
may allow a new trial. No attainder to cause a corruption of blood, or forfeiture of dower.” Id. at 156–57.
82. The rejection by the states and the federal government of mandatory executions—as well as
society’s rejection of the lex talionis principle—shows American society’s rejection of Kant’s views. William
Blackstone himself pointed out the absurdity of following the twisted “logic” of the lex talionis principle.
As Blackstone wrote: “There are very many crimes, that will in no shape admit of these penalties, without
manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by
forgery, adultery by adultery.” 4 William Blackstone, Commentaries *12–19.
83. 2 Paul Leicester Ford, ed., The Writings of Thomas Jefferson 30–34 (1893); see also TJ to Thomas
Nelson ( Jan. 25, 1781) (“We deny the propriety of their taking Paroles from unarmed farmers. But as in any
event the only justifiable Punishment of a Breach of Parole is Confinement, so should the enemy hang a
single man for this Cause, we will instantly retaliate by hanging their Prisoners in equal number.”); TJ to
Thomas Fletcher (Mar. 21, 1781) (“You informed me that the British Commanding Officer expressed the
Determination to hang any Person who should be found in Arms after having given a parole. . . . [T]he Law
of nations . . . only punishes a breach of Parole by strict Confinement and does not authorise the inflicting
death. Such an infliction therefore will be considered as putting prisoners to Death in cold Blood, which
we are determined to retaliate by the immediate execution of an equal number of British Prisoners in our
Hands. For the sake of Humanity I wish the British Commanding Officer to be informed that this is our
Determination.”). Many years later, in 1814, Jefferson said this on the subject of retaliation: “To do wrong is
a melancholy resource, even where retaliation renders it indispensably necessary. It is better to suffer much
from the scalpings, the conflagrations, the rapes and rapine of savages, than to countenance and strengthen
such barbarisms by retortion.” Jefferson added: “I have ever deemed it more honorable and more profitable
too, to set a good example than to follow a bad one. The good opinion of mankind, like the lever of
Archimedes, with the given fulcrum, moves the world.” TJ to Monsieur Correa de Serra (Dec. 27, 1814).
84. 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, 184 (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.”); Simon, 103
(“The Articles of War of 1776 increased the number of capital offenses to fourteen, but restricted ordinary,
common law capital offenses to the jurisdiction of the civil courts.”). In 1815, Jefferson emphasized that Josiah
Philips—sometimes spelled “Phillips”—was ultimately captured, indicted, tried by a jury “in the ordinary
way,” convicted, sentenced and executed “under the common law,” with Jefferson concluding that “the first
object” of an act of attainder was to bring the accused “to fair trial.” “An enemy in lawful war, putting to
death in cold blood the prisoner he has taken, authorizes retaliation, which would be inflicted with peculiar
justice on the individual guilty of the deed,” Jefferson wrote. TJ to L. H. Girardin (Mar. 12, 1815); see also
“Four Fugitive Cases from the Realm of American Constitutional Law,” 49 Am. L. Rev. 818, 819–20, 824
(1915) (noting that Philips was executed on December 4, 1778 at a gallows near Williamsburg); Bill to
Attaint Josiah Philips and Others, Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas
Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.
upress.virginia.edu/founders/TSJN-01-02-02-0064 (detailing the history of the bill of attainder).
37
Jefferson recalled his role in Josiah Philips’s bill of attainder in a letter he wrote in 1814 to William Wirt,
saying: “I remember the case, and took my part in it. . . . Mr. Henry, then Governor, communicated the case
to me. We both thought the best proceeding would be by bill of attainder, unless he delivered himself up
for trial within a given time.” TJ to William Wirt (Aug. 14, 1814). Jefferson, however, generally opposed
executing prisoners of war. In the margins of his copy of Lord Kames’s Essays on the Principles of Morality,
thought to have survived the tragic Shadwell fire, Jefferson wrote:
The putting to death captives in war was a general practice among savage nations. When men
became more humanized the captive was indulged with life on condition of holding it in perpetual
slavery; a condition exacted on this supposition, that the victor had right to take his life, and
consequently to commute it for his services. At this stage of refinement were the Greeks about the
time of the Trojan war. At this day it is perceived we have no right to take the life of an enemy unless
where our own preservation renders it necessary.
Wills, 293–94.
Though Jefferson’s views did not overcome the Framers’ desire to outlaw bills of attainder in the
Constitution itself, Patrick Henry—another participant in the Josiah Philips affair—also defended the use
of the bill of attainder in that case. “That man was not executed by a tyrannical stroke of power. Nor was he
a Socrates. He was a fugitive murderer and outlaw—a man who commanded an infamous banditti, and at
a time when the war was at the most perilous stage,” Henry said of Philips. “He committed the most cruel
and shocking barbarities. He was an enemy to the human name. Those who declare war against the human
race,” Henry offered, “may be struck out of existence as soon as they are apprehended.” “I am truly a friend to
legal forms and methods; but, sir, the occasion warranted the measure,” Henry defensively replied to harsh
criticism of the bill of attainder leveled by Edmund Randolph. “A pirate, an outlaw, or a common enemy to
all mankind,” Henry argued, “may be put to death at any time. It is justified by the law of nature and nations.”
Levy, 74; “Four Fugitive Cases,” 821; Debates, Virginia Convention of 1788, Elliot, iii, 66.
88. Hunt, 135–40 (noting that six weeks after passing the Declaration of the Rights of Man and of
the Citizen, French deputies abolished all uses of judicial torture; that a French decree issued in October
1789 abolished all forms of torture; and that French deputies voted to restrict the death penalty for certain
crimes). Lafayette—once a prisoner—told Thomas Jefferson that he himself had only narrowly escaped
execution, writing: “The Moment I Was their prisoner, I Expected the Worst, and Had it Not Been for the
Glorious display of our Military Institutions, and Uncommon Exertions of our Conquerors, We Never
Should Have left Our prison But for the Scaffold.” Lafayette to TJ (Apr. 19, 1799).
In his autobiography, Jefferson emphasized that the Virginia bill passed with modifications, including
eliminating “public labor” in favor of “solitary” punishments. Thomas Jefferson, Autobiography Draft
Fragment, Jan. 6-July 27, 1821 (Feb. 6 entry). The 1796 bill, championed by George Keith Taylor, replaced
capital punishment with other penalties for felonies, but retained the death penalty for first-degree
murder. For example, high treason was punishable by six to twelve years at hard labor or in solitude; rape
was punishable by ten to twenty-one years; arson warranted a five- to twelve-year sentence; horse-stealing
was punished with a two- to seven-year sentence along with restoration of the animal or its full value;
and second-degree murder was punishable by five to eighteen years. Taylor was a descendent of a Quaker
clergyman from Pennsylvania, and was, like Jefferson, a protégé of George Wythe. The Virginia Assembly,
looking at Pennsylvania’s example, provided for imprisonment at hard labor in a penitentiary as the penalty
for most offenses. Thus, the ideas Jefferson espoused in his bill—too progressive for the citizenry Edmund
Pendleton had cautioned Jefferson about in 1776 in the midst of the American Revolution—would become
law, though in a modified form, many years after the fact. Despite the passage of Taylor’s bill in 1796, Virginia
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slaves continued to be sentenced to death and whipped. Randall, 300; King, 960–63; Preyer, 76–77 n.86.
The efforts to curtail the death penalty’s use—which Jefferson began, and which Taylor carried on—certainly
did not go unnoticed. See Masur, 71 (“In 1796, the duc de Rochefoucauld-Liancourt, a French aristocrat
exiled by the Revolution to Philadelphia, commented that ‘the attempt at an almost entire abolition of the
punishment of death, and the substitution of a system of reason and justice, to that of bonds, ill-treatment,
and arbitrary punishment, was never made but in America.’”).
89. J. C. A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia Press, Rotunda,
2010), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-01-06-02-0094 (noting
that on June 28, 1783, the Virginia General Assembly enacted a statute making issuing fraudulent tobacco
certificates punishable by death “without benefit of clergy”). The Virginia penitentiary opened in 1800,
three years after New Jersey completed its penitentiary. Preyer, 78 n.92. Pointing to Pennsylvania as an
example, George Keith Taylor—of Prince George County—appealed to his fellow Virginians to adopt penal
reform so as to “imitate and adopt” the system already in place in Pennsylvania. “How distressing it is to a
Virginian,” he said, “to reflect that his native state is likely to be distanced in this race for mercy.” Id. at 78.
Thomas Jefferson was intimately involved in suggesting plans for the building of Virginia’s prison. James
Wood to TJ (Mar. 3, 1797) (soliciting Jefferson’s ideas for “the proper plan” for a prison). In 1797, Jefferson
wrote from Monticello:
An architect of Lyons had in 1761 proposed the idea of solitary confinement, and presented to
that government an engraved plan for a prison on that idea. This was, as far as I know, the first
proposition for this kind of punishment. It was afterwards as I believe, that a particular society
adopted it in England. Pennsylvania is the 2d and ourselves the 3d. instance of adoption.
TJ to James Wood (Mar. 31, 1797). Jefferson noted that he had received from “the architect of Lyon (M.
Bugniet) a copy of his plan, and sent it to our executive with plans and models of the Capitol.” Jefferson—
noting that his plan could accommodate 200 people at a cost of $37,000—added that “to adapt it to the
smaller scale which suited us, I sketched a plan of a prison for us with solitary cells.” Id. In 1786, Jefferson had
also sent the plans for the prison proposed at Lyons that he had gotten from the architect. TJ to William
Buchanan & James Hay ( Jan. 26, 1786). The concept of solitary confinement—considered to be a progressive
reform—had actually been suggested in England as early as 1701, with the Vatican building a prison modeled
on the concept in 1703. Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial
Revolution, 1750–1850, at 53–54, 65–66 (1978).
94. 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.”). Notably, alternatives to capital
punishment—as well as different modes of punishments for Indians—were considered in this era, even
for slaves. Shortly after Gabriel’s Rebellion, Virginia’s General Assembly asked Gov. Monroe to petition
President Jefferson to let the state buy federal lands in “the vacant western territory of the United States
. . . to which persons obnoxious to the laws or dangerous to the peace of society may be removed.” “This
resolution,” it was noted, “was produced by the conspiracy of the slaves . . . last year and is applicable to that
description of persons only.” The idea was “suggested by motives of humanity” to provide “an alternative
mode of punishment for those . . . doomed to suffer death.” Though Jefferson rejected the idea of settling
rebellious slaves on the frontier or in the West Indies for fear of future attacks against the United States,
he did agree to ask the American minister in England to propose resettling American slaves on lands of
the Sierra Leone Company in western Africa. Unger, Last Founding Father, 147. In a special message to
39
Congress, President Jefferson also made a suggestion to legislators in 1802 as to the treatment of Indians
facing capital sentences. “[I]t will be worthy the consideration of the legislature,” he said, “whether the
provisions of the law inflicting on Indians, in certain cases, the punishment of death by hanging, might not
permit its commutation into death by military execution, the form of the punishment in the former way
being peculiarly repugnant to their ideas, and increasing the obstacles to the surrender of the criminal.” TJ,
Special Message ( Jan. 28, 1802) (addressed to “Gentlemen of the Senate and House of Representatives”).
96. The death penalty had a long history in Virginia, as it did in other former British colonies. Spak, 43
(“In 1612, for example, Virginia enacted the Divine, Moral, and Martial Laws, permitting infliction of the
death penalty for various minor crimes, such as stealing grapes, killing chickens, and killing livestock without
permission.”).
97. In 1774, Madison referred to “the course and dry study of the Law” in a letter to Bradford, though he
added that “the Law does bear fruit but it is sour fruit that must be gathered and pressed and distilled before
it can bring pleasure or profit.” JM to WB ( Jan. 24, 1774). That same year, Bradford himself wrote Madison
from the First Continental Congress in Philadelphia, telling him that the delegates consulted Montesquieu
in defining their rights vis-à-vis the English Parliament. Matthew P. Bergman, Montesquieu’s Theory of
Government and the Framing of the American Constitution, 18 Pepp. L. Rev. 1, 20 (1990).
98. After Rhode Island ratified the Constitution, Daniel Owen—the president of its convention—
notified George Washington but simultaneously communicated that state’s declaration “[t]hat there are
certain natural rights, of which men, when they form a social compact, cannot deprive or divest their
posterity, among which are the enjoyment of Life and Liberty.” Another of its declarations read “[t]hat
excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments
inflicted.” From the Rhode Island Ratifying Convention, Theodore J. Crackel, ed., The Papers of George
Washington Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2001), http://rotunda.
upress.virginia.edu/founders/GEWN-05-05-02-0313. North Carolina’s ratifying convention, seeking to
protect “the unalienable Rights of the People,” also adopted—as part of a declaration of rights—a “natural
rights” provision and one reading “[t]hat excessive bail ought not to be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” North Carolina Convention Amendments, John P. Kaminski,
Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds., The Documentary
History of the Ratification of the Constitution Digital Edition (Univ. of Virginia Press, Rotunda, 2009),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN-03-18-02-0087.
99. Masur, 62 (“James Madison also supported reform. When in 1790 Rush sent Madison a pamphlet
that advocated the abandonment of the gallows in favor of new punishments that reformed criminals,
Madison responded that he had been ‘for a considerable time a firm believer’ in such a doctrine.”). At the
request of his son Richard Rush, Dr. Rush later sent Madison a pamphlet on the administration of justice in
Pennsylvania. BR to JM (Oct. 6, 1809).
101. JM to TJ (Dec. 4, 1786) (“I think the chance is rather against its final passage in that branch of the
Assembly; and if it should not miscarry there, it will have another gauntlet to run through the Senate.”).
Madison kept Jefferson informed on the progress of the bill seeking more proportionate sentences, including
in his lengthy letter to Jefferson on the results of the Constitutional Convention. JM to TJ ( Jan. 22, 1786); JM
to TJ (Oct. 24, 1787). Jefferson, in turn, kept Madison informed about what was happening in France, telling
Madison that “[t]he people” had taken the Bastille; “cut off the Governor’s and Lieutenant governors heads”
and “also of the Prevost des marchands discovered in a treacherous correspondence”; that “Foulon, one of
the fugitive ministers,” was captured in the country, brought back to Paris and hung, and was “dragged by the
enraged populace thro’ the principal streets of Paris” after his head was severed. TJ to JM ( July 22–23, 1789).
40
102. C. Cliff, ed., Capital Punishment: A Bibliography with Indexes 36 (2d ed. 2003) (referencing “An
address to the legislature of Kentucky on the abolition of capital punishments, in the United States, and the
substitution of exile for life” by G. F. H. Crockett, with the following additional information: “Published:
Georgetown, Ky.: Printed by N.L. Finnell, 1823”).
108. Report of S. M. Stilwell, Chairman of a Select Committee, of the House of Assembly of the State
of New-York, appointed to inquire into the Expediency of a Total Abolition of Capital Punishment (March
1832). Silas Stilwell ultimately introduced “An act to abolish capital punishment” in the New York legislature.
Journal of the Assembly of the State of New-York at Their Fifty-Fifth Session 354 (1832).
Chapter 5. The Eighth Amendment (pages 162–221)
1. 2 Storing, 375. Samuel Bryan—or “Centinel”—was the twenty-eight-year-old son of George Bryan, a
Pennsylvania supreme court justice. Maier, Ratification, 75–76. After the Pennsylvania convention ratified
the new constitution on December 12, 1787, by a vote of 46 to 23, twenty-one members of the minority
signed a dissenting address objecting to the absence of a bill of rights. Their dissenting views were published
in the Pennsylvania Packet and Daily Advertiser on December 18, 1787, and proposed the following
protection, among others, to remedy the deficiency: “That excessive bail ought not to be required, nor
excessive fines imposed, nor cruel nor unusual punishments inflicted.” The “first consideration” the dissenters
saw as regards the Constitution was “the omission of a bill of rights, ascertaining and fundamentally
establishing those unalienable and personal rights of men, without the full, free, and secure enjoyment of
which there can be no liberty, and over which it is not necessary for a good government to have the control.”
The dissenters also noted that “[t]he absolute unqualified command that Congress have over the militia
may be made instrumental to the destruction of all liberty, with the dissenters writing: “As militia they may
be subjected to corporal punishments of the most disgraceful and humiliating kind, and to death itself, by
the sentence of a court martial.” Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional
Convention Debates 237, 247, 254–55 (1986); 3 Storing, 151.
2. “Brutus,” writing in the New York Journal on November 1, 1787, said that the Eighth Amendment’s
provisions were “[f ]or the security of liberty” and “are as necessary under the general government as under
that of the individual states; for the power of the former is as complete to the purpose of requiring bail,
imposing fines, inflicting punishments.” “The powers vested in the new Congress,” Brutus wrote, noting New
York already barred “excessive bail,” “excessive fines,” and “cruel or unusual punishments,” “extend in many
cases to life; they are authorised to provide for the punishment of a variety of capital crimes, and no restraint
is laid upon them in its exercise, save only, that ‘the trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be in the state where the said crimes shall have been committed.’” Cogan, 621;
Michael Kammen, ed., The Origins of the American Constitution: A Documentary History 301–2, 313–19
(1986).
Though the identity of “Brutus” is in doubt, he is often thought to be Robert Yates, a New York
delegate to the Constitutional Convention. The Forum at The Online Library of Liberty, 1787: Brutus,
Essay II, visited Feb. 7, 2011, http://oll.libertyfund.org. “Philadelphiensis” is thought to be the pseudonym
of Benjamin Workman, an Irish immigrant who taught at the University of Pennsylvania. Jon L. Wakelyn,
Birth of the Bill of Rights: Encyclopedia of the Antifederalists 37, 39 (2004).
3. In the Norfolk and Portsmouth Journal, “Marcus”—who saw Congress as possessing only limited
authority over criminal law matters—gave a lengthy explanation for why a “cruel and unusual punishments”
clause was believed unnecessary:
41
As to the constituting of new crimes, and inflicting unusual and severe punishment, certainly the
cases enumerated wherein the Congress are empowered either to define offences, or prescribe
punishments, are such as are proper for the exercise of such authority in the general Legislature of
the Union. They only relate to “counterfeiting the securities and current coin of the United States;
to piracies and felonies committed on the high seas, and offenses against the law of nations, and
to treason against the United States.” These are offences immediately affecting the security, the
honor or the interest of the United States at large, and of course must come within the sphere of the
Legislative authority which is entrusted with their protection. Beyond these authorities Congress
can exercise no other power of this kind, except in the enacting of penalties, to enforce their acts of
Legislation in the cases where express authority is delegated to them, and if they could not enforce
such acts by the enacting of penalties those powers would be altogether useless, since a legislative
regulation without some sanction would be an absurd thing indeed. The Congress having, for these
reasons, a just right to authority in the above particulars, the question is, whether it is practicable
and proper to prescribe the limits to its exercise, for fear that they should inflict punishments
unusual and severe? It may be observed, in the first place, that a declaration against “cruel and
unusual punishments,” formed part of an article in the Bill of Rights at the Revolution in England,
in 1688. The prerogative of the Crown having been grossly abused in some preceding reigns, it was
thought proper to notice every grievance they had endured, and those declarations went to an abuse
of power in the crown only, but were never intended to limit the authority of Parliament. Many
of these articles of the Bill of Rights in England, without a due attention to the difference of the
cases, were eagerly adopted when our Constitutions were formed, the minds of men then being so
warmed with their exertions in the cause of liberty, as to lean too much perhaps towards a jealousy
of power to repose a proper confidence in their own government. From these articles in the State
Constitutions, many things were attempted to be transplanted into our new Constitution, which
would either have been nugatory or improper: This is one of them.
Cogan, 622; 2 Schwartz, 452–54; “Marcus,” Norfolk & Portsmouth J. (Mar. 12, 1788).
5. George Mason recommended that Congress immediately call a convention of representatives “from
the several states, with full power to take into their consideration the defects of this constitution that have
been suggested by the state conventions, and report such amendments thereto, as they shall find best suited
to promote our common interests, and secure to ourselves and our latest posterity, the great and unalienable
rights of mankind.” No one, Mason would say, was “more fully convinced of the necessity of establishing
some general government,” but “I thought it repugnant to our highest interests.” “I would have lost this
hand,” he added, “before it should have marked my name to the new government.” Broadwater, 217; Robert
Douthat Meade, Patrick Henry: Practical Revolutionary 377 (1969). In an enclosure titled “Amendments to
the New Constitution of Government” Mason sent to New York Anti-Federalist John Lamb, the thirteenth
item on the list reads: “That excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel
and unusual Punishments inflicted.” GM to John Lamb ( June 9, 1788). Elbridge Gerry of Massachusetts,
described by one contemporary as a “Grumbletonian” who objected “to every thing he did not propose,”
also refused to sign the Constitution, saying that the “best that could be done” to fix it was to hold “a
second general Convention.” Labunski, 12; Bowen, 260. After the Bill of Rights passed the U.S. House
of Representatives, Mason softened his stance, confiding to a correspondent that “I have received much
Satisfaction from the Amendments to the federal Constitution, noting that with “two or three further
Amendments . . . I cou’d chearfully put my Hand & Heart to the new Government.” GM to Samuel Griffin
(Sept. 8, 1789). Mason, who felt more liberties were needed, once characterized Madison’s amendments to
42
the Constitution as “a tub to the whale.” Conley & Kaminski, 338. Instead of “those solid and substantial
amendments which the people expect,” said Aedanus Burke, another critic of Madison’s amendments, the
proposed amendments were “whip-syllabub”—an eighteenth-century dessert that was “frothy and full of
wind, formed only to please the palate”—or “like a tub thrown out to a whale” by sailors trying to divert its
attention from attacking their ship. Maier, Ratification, 452.
6. Jefferson’s response to Madison’s letter strongly advocated a bill of rights, saying “I am much pleased
with the prospect that a declaration of rights will be added.” “[T]ho it is not absolutely efficacious under all
circumstances,” Jefferson wrote, “it is of great potency always, and rarely inefficacious.” “[I]f we cannot secure
all our rights, let us secure what we can,” he said. “[H]alf a loaf is better than no bread,” Jefferson assured
Madison. TJ to JM (Mar. 15, 1789).
8. Richard Henry Lee—who declined election to the Constitutional Convention as a conflict of
interest because of his work in New York with the Continental Congress—proposed several constitutional
amendments on September 27, 1787, as Congress debated the manner in which to transmit the Constitution
to the state legislatures. Jack N. Rakove, Declaring Rights: A Brief History with Documents 115–19 (1998).
Congress, however, did not consider them or place them on the journals. Madison later asserted that the
amendments corresponded to the ideas of George Mason. Between September 29 and October 5, Lee
himself sent copies of his proposed amendments to Elbridge Gerry, George Mason, William Shippen
Jr., and Samuel Adams. Lee also distributed copies of the amendments to Anti-Federalists he conferred
with in Pennsylvania and Delaware. Lee’s suggested amendments were also printed in more than a dozen
newspapers, generating a variety of responses in other published essays. John P. Kaminski, Gaspare J.
Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds., The Documentary History of
the Ratification of the Constitution Digital Edition (Univ. of Virginia Press, Rotunda, 2009), visited Jan. 2,
2011, http://rotunda.upress.virginia.edu/founders/RNCN-03-14-02-0090.
9. The delegates approved Wythe’s report without their votes being recorded. Labunski, 115.
10. Mayer, 435; Labunski, 163 (noting that, in 1776, James Madison “was appointed to the thirty-six
member committee that would draft a declaration of rights”); Thomas Y. Davies, Correcting Search-andSeizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding
of “Due Process of Law,” 77 Miss. L.J. 1, 137 (2007); see also id. at n.475 (“Madison also participated in a
discussion of the bill of rights in the Ordinance during the Constitutional Convention.”); compare id. at 136–
37 (saying that James Madison was “a member of the committee that had drafted the brief bill of rights in
the 1787 Northwest Ordinance”) and Rutland, 101 (saying the Northwest Ordinance “was the product of a
steady evolution of ideas in which the committee work of the best minds of Congress had figured: Jefferson,
Madison, Monroe, and Rufus King being among the contributors.”) with Thomas Nathan Peters, Religion,
Establishment, and the Northwest Ordinance: A Closer Look at an Accommodationist Argument, 89 Kentucky
L.J. 743, 768 n.173 (2001) (“Madison did not serve on any of the committees in charge of drafting versions of
the Ordinance. Indeed, during the summer of 1787, when Congress was drawing up the final version of the
Ordinance, Madison was in Philadelphia serving in the Constitutional Convention.”).
11. The Confederation Congress and the Constitution (Sept. 26–28), Richard Henry Lee’s Amendments
(Sept. 27), John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A.
Hogan, eds., The Documentary History of the Ratification of the Constitution Digital Edition (Univ. of
Virginia Press, Rotunda, 2009), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN03-13-02-0098 (listing Richard Henry Lee’s proposed amendment as “That excessive Bail, excessive Fines,
or cruel and unusual punishments should not be demanded or inflicted”). Richard Henry Lee was on the
committee that drafted the Northwest Ordinance of 1787. Id. n.10.
43
13. On the subject of amendments, George Washington preferred to stay above the fray. In his inaugural
address on April 30, 1789, Washington said: “Instead of undertaking particular recommendations on this
subject, in which I could be guided by no lights derived from official opportunities, I shall again give way
to my entire confidence in your discernment and pursuit of the public good.” Veit, Bowling, & Bickford,
233. Washington, however, circulated to the states’ governors a copy of the proposed amendments to the
Constitution—a circular in which the “cruel and unusual punishments” language appears in “Article the
tenth.” Circular to the Governors of the States, Theodore J. Crackel, ed., The Papers of George Washington
Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.
edu/founders/GEWN-05-04-02-0087.
14. Madison worried that listing amendments at the end of the Constitution would lead to “some
ambiguities” because it would be unclear “how far the original text is or is not necessarily superceded by”
the amendments. Madison, however, was pragmatic, so his preference for incorporating the amendments
into the text was not a deal-breaker. “I am not however very solicitous about the mode,” Madison said on the
House floor, “so long as the business is fully attended to.” Labunski, 219.
15. Noah Webster—the publisher of grammar books—also opposed Madison’s efforts to amend the
Constitution, saying that “[p]aper declarations of rights are trifling things and no real security to liberty.”
“In general,” Webster said, “they are a subject of ridicule.” Labunski, 228–29. In New York’s Daily Advertiser,
Noah Webster wrote in December 1787 that “[t]he only barrier against tyranny, that is necessary in any
State, is the election of Legislators by the yeomanry of that State.” As Webster explained: “The very attempt
to establish a permanent, unalterable Constitution, is an act of consummate arrogance. It is a presumption
that we have all possible wisdom—that we can foresee all possible circumstances—and judge for future
generations, better than they can for themselves.” Webster specifically disliked the idea of forbidding
“unusual” punishments—finding the term “unusual” to be too vague to be of any consequence. As Webster
replied “To the DISSENTING MEMBERS of the late CONVENTION of PENNSYLVANIA”:
You would likewise restrain Congress from requiring excessive bail, or imposing excessive fines and
unusual punishment. But unless you can, in every possible instance, previously define the words
excessive and unusual—if you leave the discretion of Congress to define them on occasion, any
restriction of their power by a general indefinite expression, is a nullity—mere formal nonsense.
What consummate arrogance must you possess, to presume you can now make better provision for
the Government of these States, during the course of ages and centuries, than the future Legislatures
can, on the spur of the occasion! Yet your whole reasoning on the subject implies this arrogance, and
a presumption that you have a right to legislate for posterity!
Reply to the Pennsylvania Minority: “America,” Daily Advertiser (New York), Dec. 31, 1787. Noah Webster
wrote this essay in response to the “Dissent,” which was reprinted in three New York City newspapers—New
York Morning Post, Daily Advertiser, and New York Journal—in the last week of December. John P. Kaminski,
Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds., The Documentary
History of the Ratification of the Constitution Digital Edition (Univ. of Virginia Press, Rotunda, 2009),
visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN-03-15-02-0049.
17. Levy, 234 (“Though English common-law courts did not sentence anyone to be tortured, the
monarch could authorize the rack by special royal warrant. The rack in the Tower of London was frequently
used, especially during the time of the Tudors. Moreover, English law had permitted such grisly punishments
as ‘pulling out the tongue,’ slicing off the nose, cutting off the genitals, and, for capital crimes, boiling to
death.”). Amercements—a common criminal sanction in thirteenth-century England—resembled modernday fines. Solem, 463 U.S. at 284 n.8.
19. “It is not the Pain the Fire, etc. that is dreaded so much as the Infamy and Disgrace,” John Adams
44
wrote, adding: “So that really the civil Magistrate may be said in a good Sense to keep the World in order, by
Means of Satyr, for Gaols, Stocks, Whipping Posts and Gallows’s are but different Kinds of it.” JA to Mercy
Warren (Mar. 15, 1775).
20. A large group of colonists had emigrated to Massachusetts Bay in 1630, including Gov. John
Winthrop. Winthrop noted that the people—distrustful of so much discretion vested in magistrates—“had
long desired a body of laws” that would guarantee “such liberties Immunities and priveledges as humanitie,
Civilitie, and Christianitie call for as due to every man in his place and proportion.” The Massachusetts
Body of Liberties—the first American effort to codify liberties and rights in a written instrument—was
drafted by Nathaniel Ward and put in place just months after the abolition of England’s Star Chamber. 1
Schwartz, 70–71, 85–86; An Act for the Regulating of the Privy Council, and for Taking Away the Court
Commonly Called the Star-Chamber ( July 5, 1641); Granucci, 850–51. According to one scholar, “[i]t
appears that Ward’s language, used in the Massachusetts Body of Liberties, was motivated by concerns about
torture that was used to extract confessions in the absence of a conviction and bodily punishments that were
‘inhumane Barbarous or cruel.” Rumann, 669. “In explaining the meaning of the proscriptions contained
in the Body of Liberties,” writes Celia Rumann, a professor at the University of St. Thomas School of Law,
“ministers to then Massachusetts governor Bradford specifically used the word ‘punishment’ when referring
to torturous interrogation.” Id. “A magistrate is bound,” a Mr. Patrich explained, to draw from the accused
“an acknowledgmente of ye truth,” “but he may not extracte a confession—by any violent means—by any
punishmente inflicted or threatened to be inflicted for so he may draw forth an acknowledgmente of a
crime from a fearful inocente.” Id. Another man, John Reynor, also explained: “To inflicte some punishment
merely for this reason, to extracte a confession of a capitall crime, is contrary to ye nature of vindictive
justice.” Id. “Based on this historical record,” Rumann writes, “it is clear that the Body of Liberties was
motivated by and intended to prevent conduct that included such punishment as torturous interrogations.”
Id.
The prohibition against “inhumane, barbarous or cruel” punishments was later incorporated into the
Massachusetts Bay Colony’s Code of 1648, which made cursing one’s parents or rebelling against one’s
father punishable by death, and into Connecticut’s Code of 1672. Granucci, 860; Christopher Collier, The
Common Law and Individual Rights in Connecticut Before the Federal Bill of Rights, 76 Conn. B.J. 1, 12–13
(2002); Mark D. Cahn, Punishment, Discretion, and the Codification of Prescribed Penalties in Colonial
Massachusetts, 33 Am. J. Legal Hist. 107, 132 (1989); Whipping and Castration as Punishments for Crime,
8 Yale L.J. 371, 380–81 (1899). In an article on the origins of the Eighth Amendment, Professor Rumann
further concludes that “[w]hatever the meaning of the language of Article 10 of the Bill of Rights of 1689,
to the Framers, the Eighth Amendment certainly was designed to prevent torturous interrogations.”
Rumann, 673. Under early English practice, someone could not suffer loss of life, limb, or property unless
he was first convicted by a jury. If the person accused of a crime refused to plead, his “consent” to proceed
with the jury trial was extorted by “punishment strong and hard,” or peine forte et dure. Historian Leonard
Levy explains how this cruel technique worked on offenders refusing to plead: “He was stripped, put in
irons on the ground in the worst part of the prison, and fed only coarse bread one day and water the next.
Then the refinement of ‘punishment’ was added; he was slowly pressed, spread-eagled on the ground, with
as much iron placed on his body as he could bear ‘and then more.’ The punishment by pressing, exposure,
and slow starvation continued until the prisoner agreed to be tried or died.” Levy, 233. Citing statements
made by Patrick Henry and George Mason during Virginia’s ratification debate surrounding the proposed
Constitution, Professor Rumann concludes that the Framers understood the Eighth Amendment to ban
interrogations involving torture. Rumann, 673–78, 680–81.
21. Compare Ingraham, 430 U.S. at 664 (“Historians have viewed the English provision as a reaction
45
either to the ‘Bloody Assize,’ the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive
rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year.”). In the
founding era, the abuses of Chief Justice Jeffreys were still very much on the minds of Americans. In one of
his “Farmer’s Letters” to the inhabitants of the British Colonies, John Dickinson mused: “But supposing
that through the extreme lenity that will prevail in the government through all future ages, these colonies
will never behold any thing like the campaign of chief justice Jeffreys, yet what innumerable acts of injustice
may be committed, and how fatally may the principles of liberty be sapped, by a succession of judges utterly
independent of the people?” 1 The Political Writings of John Dickinson 229 (1801).
23. Compare Levy, 235 (“In 1630 Alexander Leighton, a Puritan clergyman who had libeled the Anglican
bishops, was fined the staggering amount of ten thousand pounds, defrocked by the highest ecclesiastical
court, unmercifully whipped until almost dead, pilloried, one ear nailed to the pillory and then cut off, his
cheek branded, and his nose slit; a week later he suffered the same mutilations on the other side of his face,
and he was imprisoned for the rest of his life.”).
24. Claus, Methodology, Proportionality, Equality, 40 & n.22 (“As William Blackstone made clear
to lawyers in the American Founding era, the English Bill of Rights did not condemn methods of
punishment—not even the grotesque practice of drawing and quartering traitors.”); Levy, 236 (“[T]he
provision of the Bill of Rights of 1689 against ‘cruel and unusual punishments’ had nothing to do with
a hostile parliamentary reaction to Jeffreys’s conduct. The chief prosecutor during the Bloody Assize
was Sir Henry Pollfexen, a close friend and supporter of Jeffreys who did not view the Bloody Assize as
illegal; Pollfexen was one of the chief backers of the Bill of Rights. Its provision against cruel and unusual
punishments derived mainly from the reaction to the case of Titus Oates.”). Compare Kukla, 135 (“American
punishments did not parallel English experience. In The Concept of Cruel and Unusual Punishments
(Lexington, Mass., 1975), Larry Berkson demonstrated that particularly cruel punishments—beheading,
boiling, breaking on the wheel, gibbeting, pressing to death, burning at the stake, and mutilating—had been
rare in colonial America.”).
25. Stinneford, 1803 (“several Antifederalists proposed that the Constitution should be amended
to include a bill of rights that would explicitly bind the federal government not to violate common law
rights”); id. (“Richard Henry Lee proposed adoption of a federal bill of rights that would include a variety of
common law protections, including a requirement that ‘excessive Bail, excessive Fines, or cruel and unusual
punishments should not be demanded or inflicted’”). Richard Henry Lee’s concerns about the Constitution
and his list of proposed amendments to it appeared in newspapers in Virginia and throughout the country.
Labunski, 38–41. George Mason also wrote letters and newspaper essays objecting to the absence of a bill of
rights. Id. at 41–42.
On May 10, 1776, the Continental Congress asked the colonies to organize new governments. Five days
later, the Virginia convention passed a resolution creating a committee to draft a new constitution and a
bill of rights. The committee had thirty-some-odd members, and Madison and Mason were both appointed
to serve in mid-May. Mason immediately began drafting his own bill of rights and plan of government,
and Edmund Pendleton told Jefferson, who was still in Philadelphia, that “the Political cooks are busy in
preparing the dish, and as Colo. Mason seems the have the Ascendancy in the great work, I have Sanguine
hopes it will be framed so as to Answer it’s end, Prosperity to the Community and Security to Individuals.”
Though the final Virginia Constitution and the Declaration of Rights were collaborative efforts, Mason
was—in the words of his biographer—“the principal architect of both documents.” Broadwater, 80–81;
compare id. at 83 (“Mason may have written the terse eleventh article, ‘excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted’”) with Massey, 1242 (“The best
evidence is that the draftsman of the Virginia declaration, George Mason, a planter without formal legal
46
training but well-versed in English constitutional history, simply adopted wholesale the 1689 English
Bill of Rights when he drafted Virginia’s version in 1776.”). This was not the only time Mason looked to
English law to help craft American law. Broadwater, 200 (“Failing to persuade the convention to make
‘Maladministration’ a basis for removal from office, Mason next suggested ‘high crimes and misdeameanours’
as an alternative. Borrowed from English law, the phrase went into the Constitution.”).
The phrase “privileges and immunities” first made its way into U.S. law through the Articles of
Confederation. Slaughter-House Cases, 83 U.S. 36, 75 (1872). The U.S. Constitution also contains the phrase,
providing in what is known as the Comity Clause that “[t]he Citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the several States.” U.S. Const., art. IV, sec. 2. The Fourteenth
Amendment further provides: “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.” U.S. Const., amend. XIV. Robert Bork famously compared the
Fourteenth Amendment’s Privileges or Immunities Clause to an “ink blot,” saying “[t]he clause has been a
mystery since its adoption and in consequence has, quite properly, remained a dead letter.” Randy E. Barnett,
Restoring the Lost Constitution: The Presumption of Liberty 234 n.42 (2004); see also Robert H. Bork,
The Tempting of America: The Political Seduction of the Law 166 (“A provision whose meaning cannot be
ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an
ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.
So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the
privileges and immunities of citizens of the United States.”).
The words “privileges” and “immunities,” however, appear on the face of the Constitution, and must be
given meaning and effect as they guarantee people’s fundamental rights. An early American case described
the “privileges and immunities of citizens” as those “which belong, of right, to the citizens of all free
governments,” and were said to include, among others, the “fundamental” rights of “[p]rotection by the
government,” “the enjoyment of life and liberty,” and “to claim the benefit of the writ of habeas corpus.”
Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230). Judges may sometimes differ
over what rights qualify as “privileges” or “immunities,” but there is no question as to the facts: no ink blot
obscures the Fourteenth Amendment’s text. For a discussion of the debate surrounding the Fourteenth
Amendment’s Privileges or Immunities Clause, see Eric R. Claeys, Blackstone’s Commentaries and the
Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan, 45 San Diego L. Rev.
777 (2008).
26. John Locke’s Second Treatise of Government was published in 1690. John Locke, Second Treatise
of Government (C.B. Macpherson ed., Hackett Pub. Co. 1980) (1690). The writings of Sir Edward Coke
and William Blackstone were especially popular among colonial lawyers. Suzanne L. Abram, Problems of
Contemporaneous Construction in State Constitutional Interpretation, 38 Brandeis L.J. 613, 614–15, 626–31
(2000).
27. As law professor Laurence Claus writes of the “cruel and unusual punishments” language:
For many in the founding generation, it had become the verbiage of civility, and they were intent on
employing it for whatever it was worth. Like the Latin Mass, it was valued by those for whom it was
cultural heritage, whether understood or not. When George Mason and his fellow Virginians sat
down to draft a Declaration of Rights in 1776, they had just spent over a decade declaring at every
opportunity that all they sought were the “rights of Englishmen.” Now that the bonds with Britain
were broken, they described the rights they claimed as natural rather than English, but the content
of those rights did not change. The language of the English Bill of Rights meant for the Founders
whatever it meant for the English.
Claus, Antidiscrimination Eighth Amendment, 129.
47
28. Bills of attainder were frequently used during the Revolutionary War. Levy, 70–76. “Bills of pains and
penalties” were “simply a subspecies of bills of attainder, the only difference being that the punishment was
something less than death.” Carmell v. Texas, 529 U.S. 513, 537 n.27 (2000); see also Nixon v. Administrator of
Gen. Services, 433 U.S. 425, 474 (1977) (“In England a bill of attainder originally connoted a parliamentary
Act sentencing a named individual or identifiable members of a group to death. Article I, § 9, however, also
proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting
punishment other than execution.”); Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468
U.S. 841, 852 (1984) (“At common law, bills of attainder often imposed the death penalty; lesser punishments
were imposed by bills of pains and penalties. The Constitution proscribes these less penalties as well as those
imposing death.”).
29. Pennsylvania’s constitution of 1790, which provided “[t]hat excessive bail shall not be required,
nor excessive fines imposed, nor cruel punishments inflicted,” was drafted largely by James Wilson. Charles
Grove Haines, The Role of the Supreme Court in American Government and Politics, 1789–1835, at 57
(1944); Pa. Const. (1790), sec. XIII, available at Duquesne University School of Law, Constitution of the
Commonwealth of Pennsylvania 1790, visited Feb. 9, 2011, http://www.duq.edu/law/pa-constitution/
constitutions/1790.cfm.
30. James Madison, quoting Montesquieu, wrote in Federalist No. 47 that “‘there can be no liberty
where the legislative and executive powers are united in the same person, or body of magistrates.” Bowsher
v. Synar, 478 U.S. 714, 721–22 (1986). In the founding era, the term “magistrate”—in addition to referring
to judges—was frequently used to refer to those interrogating criminal suspects and to executive positions.
J. M. Beattie, Sir John Fielding and Public Justice: The Bow Street Magistrates’ Court, 1754–1780, 25 Law &
Hist. Rev. 61, 66–67 (2007); Wesley MacNeil Oliver, Magistrates’ Examinations, Police Interrogations, and
Miranda-Like Warnings in the Nineteenth Century, 81 Tul. L. Rev. 777, 784–86 (2007); Ralph Ketcham, ed.,
The Anti-Federalist Papers and the Constitutional Convention Debates 67, 69, 77, 97, 114, 117, 125, 130–31,
251–52 (1986); see also Wesley M. Oliver, Portland, Prohibition, and Probable Cause: Maine’s Role in Shaping
Modern Criminal Procedure, 23 Me. B.J. 210, 213 n.31 (2008) (“In the late eighteenth century and early
nineteenth century, magistrates, in addition to the constables and watchmen, were expected to personally
make arrests and maintain order.”).
Some states did not adopt any “cruel or unusual” or “cruel and unusual” language. The Connecticut
Declaration of Rights of 1776 simply provided “[t]hat no Man’s Life shall be taken away . . . unless clearly
warranted by the Laws of this State.” Georgia’s 1777 constitution—while protecting the rights to habeas
corpus and trial by jury—gave only the following protection: “Excessive fines shall not be levied, nor
excessive bail demanded.” New York’s 1777 constitution—while stating “we lament the cruel necessity”
which brought about the Declaration of Independence—contained no language prohibiting “cruel” or
“unusual” punishments, and neither did New Jersey’s 1776 constitution, even though it similarly spoke of
George III’s “most cruel and unnatural” manner of waging war. 2 Schwartz, 256–61, 289–303. The Vermont
Declaration of Rights, issued in 1777, complained of the King’s “cruel and unjust war” against Vermonters,
noting that laws had been passed giving judges the power “to award execution of death” without trial, but
Vermont’s constitution also failed to include any protection against “cruel” or “unusual” punishments. Id. at
319–24.
The convention that produced the Massachusetts Constitution of 1780 delegated the preparation of a
draft to Samuel and John Adams and James Bowdoin, though John Adams assumed the bulk of the work and
the drafting. Stoll, 208; Halston, 125 n.36. Adams’ constitution served as a model for the U.S. Constitution
and is the oldest functioning written constitution in the world. McCullough, 220–25; Hon. Roderick L.
48
Ireland, How We Do It in Massachusetts: An Overview of How the Massachusetts Supreme Judicial Court Has
Interpreted Its State Constitution to Address Contemporary Legal Issues, 38 Val. U. L. Rev. 405, 407 (2004).
The courts of Massachusetts have determined that the protection against “cruel or unusual punishments”
is “at least equally as broad as those guaranteed under the Eighth Amendment.” Michaud v. Sheriff of Essex
County, 458 N.E.2d 702, 708 (Sup. Jud. Ct. Mass. 1983).
33. Calabresi & Agudo, 83; Ky. Const. of 1792, art. XII, § 15; compare id. (“Only nine states out of thirtyseven in 1868—a minority of slightly less than one-quarter of the states then in the Union—explicitly
required in their state constitutions that all penalties and punishments be proportioned to the offense.”);
Stacy, 504–05, 531 (noting that Delaware and Kentucky enacted constitutions in 1792 that prohibited “cruel
punishments” and that “[n]umerous state constitutions enacted after the Founding period used this same
language”). As one commentator has explained:
The 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. Just months after the
House of Lords approved the Bill’s prohibition against “cruel and unusual punishments,” a group
of Lords filed a dissenting statement in the case of Titus Oates. The dissenting Lords concluded
that the punishments imposed in Oates’s case violated the Bill of Rights, which they described
as providing that neither “cruel nor unusual punishments [be] inflicted.” Their mistake suggests
that they understood prohibitions of “cruel and unusual” and “cruel or unusual” punishments as
equivalents.
Id. at 503–4; see also id. at 504 (“the Founders did not understand the Cruel and Unusual Punishment Clause
in a literal fashion and did not mean for a punishment’s unusual nature to be an invariable requirement of
unconstitutionality”).
But the line of argument contending that “cruel and unusual” is a unitary concept is far from settled
and has been criticized. For example, in discussing the difference between “cruel and unusual” and “cruel or
unusual,” the Michigan Supreme Court stated:
[I]t seems self-evident that any adjectival phrase in the form “A or B” necessarily encompasses a
broader sweep than a phrase in the form “A and B.” The set of punishments which are either “cruel”
or “unusual” would seem necessarily broader than the set of punishments which are both “cruel” and
“unusual.”
People v. Bullock, 485 N.W.2d 866, 872 n.11 (Mich. 1992); see also Turnipseed v. State, 6 Ala. 664, 1844 WL
301 *1 (Ala. 1844) (interpreting a state statute prohibiting “cruel or unusual punishment” and holding: “True,
the statute makes two offences, or rather does not require that the punishment inflicted upon a slave shall be
both cruel and unusual to subject the offender to its sanctions: it is enough if the proof show it to be either
the one or the other.”).
34. Granucci, 860 (“In the seventeenth century, the word ‘cruel’ had a less onerous meaning than
it has today. In normal usage it simply meant severe or hard. The Oxford English Dictionary quotes as
representative Jonathan Swift, who wrote in 1710, ‘I have got a cruel cold, and staid within all this day.’”); id.
(“Sir William Blackstone, discussing the problem of ‘punishments of unreasonable severity,’ uses the word
‘cruel’ as a synonym for severe or excessive.”). A proclamation issued by George Washington referred to
“cruel and humiliating punishments,” with John and Abigail Adams—in letters—even referring to their long
separation as “cruel torture” and “a cruel Punishment.” Proclamation Warning the Insurgents in the Western
Parts of Pennsylvania to Desist from Their Opposition to the Laws, reprinted in 12 The Writings of George
Washington 445–48 (Worthington Chauncey Ford ed., 1891); AA to JA (Nov. 14, 1779); JA to Richard
Cranch (Sept. 10, 1783). Early Americans used the word “cruel” to describe all sorts of things. It is thus clear
49
that the Framers understood that in using the word “cruel” they were putting a word in the Constitution
that, in the future, would be subject to varying interpretations.
38. Alexander Hamilton also used the word “cruel” in advocating for exceptions to the Alien and
Sedition Acts, saying “Let us not be cruel or violent.” Chernow, Alexander Hamilton, 572. George Mason,
who saw slavery as morally wrong, yet owned slaves, had—as biographer Jeff Broadwater points out—
“firsthand experience with the cruelty involved in keeping people in bondage.” “In 1754,” Broadwater writes,
“one of Mason’s slaves, a man named Dick, had his ear cut off for running away and for stealing, probably
a hog.” “In 1767,” Broadwater adds, “two of Mason’s slaves were executed for attempting to poison their
overseers, and according to a newspaper report, the slaves’ ‘Heads were cut off, and fixed on the chimnies
of the Court-House.’” Broadwater, 35. Slaves, Mason said, “produce the most pernicious effect on manners,
every master of slaves is born a petty tyrant.” Id. at 191.
42. “A Son of Liberty,” New York J. (Nov. 8, 1787) (expressing a fear of punishments of “unusual severity”
if the Constitution “proposed by the Convention” were adopted, with the writer listing “curses which will be
entailed on the people of America, by this preposterous and newfangled system”); JM to William Jarvis (May
6, 1802) (“the condemnation took place without giving to the claimants the opportunities usually allowed
by the laws of the country, to defend their cause, or that their persons were treated with unwarrantable and
unusual severity”).
43. When James Madison introduced his proposed amendments, Rep. Samuel Livermore, a Federalist,
wanted to consider the amendments at a later time, once the government itself was organized. As historian
Richard Labunski writes: “He recommended that the Senate be consulted to see whether it was willing to
discuss amendments, because if senators were unenthusiastic about the subject, it made no sense for the
House to continue.” “If they opposed the measure,” Livermore said, “all the house did would be a mere
waste of time.” Livermore ultimately voted against the amendments. Labunski, 204, 239; Veit, Bowling,
& Bickford, 69, 92, 95. Rep. Smith, of South Carolina, also thought Madison’s effort to offer amendments
was premature. The son of a wealthy merchant who studied law in London during the Revolutionary War,
Smith—a Federalist—argued: “That however desirous this house may be to go into the consideration of
amendments to the constitution, in order to establish the liberties of the people of America on the securest
foundation; yet the important and pressing business of the government, prevents their entering upon that
subject at present.” Smith—who wanted to take up the judiciary bill first—also thought some of Madison’s
amendments were “not self evident,” that some “will admit of lengthy discussion,” and that others “may be
rejected.” Id. at 74–75, 114, 312.
In the August 22, 1789 edition of the Gazette of the United States, Samuel Livermore’s August 17th
objections are presented in this way:
Mr. LIVERMORE said, the clause appears to express much humanity, as such, he liked it; but as it
appeared to have no meaning, he did not like it: As to bail, the term is indefinite, and must be so
from the nature of things; and so with respect to fines; and as to punishments, taking away life is
sometimes necessary, but because it may be thought cruel, will you therefore never hang any body—
the truth is, matters of this kind must be left to the discretion of those who have the administration
of the laws.
Veit, Bowling, & Bickford, 179–80. Livermore—a graduate of Princeton who practiced law in New
Hampshire while serving in various judicial and legislative positions—made this speech after insisting that
the proposed Double Jeopardy Clause be retained because he viewed it as “essential.” Id. at 180, 186–89, 308.
45. The Sixth Amendment’s Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., amend. VI.
50
The “civil law” and “common law” approaches have long differed. See Crawford v. Washington, 541 U.S. 36
(2004) (“The right to confront one’s accusers is a concept that dates back to Roman times. The founding
generation’s immediate source of the concept, however, was the common law. English common law has long
differed from continental civil law in regard to the manner in which witnesses give testimony in criminal
trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the
civil law condones examination in private by judicial officers.”) (citing 3 W. Blackstone, Commentaries
on the Laws of England 373–374 (1768)). At times, England adopted elements of civil-law practice, with
examinations read in court in lieu of live testimony. “The most notorious instances of civil-law examination,”
the Supreme Court has noted, “occurred in the great political trials of the 16th and 17th centuries.” For
example, at Sir Walter Raleigh’s treason trial in 1603, Raleigh was sentenced to death after the judge refused
to require his accuser to testify. English law later developed a right of confrontation to limit such abuses. Id.
at 44–45.
At Virginia’s ratifying convention, Patrick Henry expressed the view that the common law—a “system
of law which has been admired, and has protected us and our ancestors”—was absent from the proposed
Constitution, making it defective. “That paper ought to have declared the common law in force,” he said.
“When our Government was first instituted in Virginia,” he emphasized, “we declared the common law of
England to be in force.” Debate in Virginia Ratifying Convention ( June 16, 1788). Henry added:
Persons accused may be carried from one extremity of the State to another, and be tried not by an
impartial jury of the vicinage, acquainted with his character, and the circumstances of the fact; but
by a jury unacquainted with both, and who may be biased against him.—Is not this sufficient to
alarm men?—How different is this from the immemor[i]al practice of your British ancestors, and
your own?
Id. George Nicolas, on the other hand, contended that “the common law is not excluded.” “There is nothing
in that paper to warrant the assertion,” he said of Henry’s argument. Id.
46. At the Constitutional Convention, the delegates decided to create a ten-mile square federal district.
Chernow, Alexander Hamilton, 325. According to the editor of George Mason’s papers, the prohibition
against cruel and unusual punishments in the Virginia Declaration of Rights “stressed the growing
American resentment against a medieval heritage of ear-slitting, stake-burning, branding, and other capital
punishments repulsive to a society that increasingly sought proof of man’s virtues instead of his wickedness.”
1 Robert A. Rutland, ed., The Papers of George Mason 1725–1792, at 285 (1970).
47. Compare Berkson, 9 (“The first recorded judicial opinion in the United States on cruel and
unusual punishment was rendered by the Supreme Court of Errors of Connecticut in 1811. Gibson Smith
was convicted on two separate informations of distinct offenses and was sentenced to serve three years
imprisonment on each, to run consecutively. He claimed that the ‘mode of accumulating the terms of
imprisonment’ was ‘novel, without precedent, cruel and illegal.’ The court, however, promptly reject his
contention.”) and Commonwealth v. Wyatt, 6 Rand 694, 27 Va. 694, 1828 WL 860 *1 (Va. Gen. Ct. 1828)
(upholding the constitutionality of an act of 1823 providing that persons convicted may be imprisoned for
up to six months and may receive “stripes” at the discretion of the court, to be inflicted at one time, or at
different times, providing they did not exceed thirty-nine at any one time). In Wyatt, the General Court of
Virginia summarized the defendant’s lawyer’s unsuccessful arguments as follows:
[I]t is perfectly evident that the Court, by virtue of this Law, might exercise its discretion to subserve
vindictive passions, and so as to direct the party convicted to be subjected to thirty-nine stripes every
day of the six months, which would inevitably terminate in death; a death produced by the most
cruel torture. That by the Bill of Rights, properly regarded as part of the Constitution of Virginia,
51
the General Assembly is restrained from authorising by Law, “cruel and unusual punishments (to be)
inflicted,” and that therefore the authority delegated to the Courts, as above described by the Act
aforesaid, being prohibited to the Legislature, by the Constitution, cannot by it be delegated to the
Courts, and that the Act aforesaid is therefore void, and ought so to be regarded by this Court.
Id. at *4.
A “John Humble,” writing on behalf of three million “low born American slaves,” penned an article
in Philadelphia’s Independent Gazetteer on October 29, 1787, on the subject of executions and corporal
punishments. He spoke of a prospect of a soldier chopping off the arm of a slave, saying “we will conceive
our case remarkably fortunate if he leaves the other arm on.” And he wrote of federal judges ordering the
“immediate execution” of offending slaves, adding, “nor will we think their sentence severe unless after being
hanged they are also to be both beheaded and quartered.” “John Humble,” To Lick the Feet of Our Well Born
Masters, Indep. Gazetteer, Oct. 29, 1787.
51. A law passed in 1812 prohibited the use of “corporal punishment by whipping” upon militia soldiers
serving with the U.S. Army. An Act to authorize a detachment from the Militia of the United States (Apr.
10, 1812). While the law only applied to militia, the regular army also abandoned whipping in favor of
“cobbing”—striking the buttocks with a flat instrument—and other forms of punishment during the War
of 1812. John S. Hare, Military Punishments in the War of 1812, 4 J. Am. Mil. Inst. 236, 238 (1940); Erastus
Roberts to JM (Sept. 2, 1813), J. C. A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of
Virginia Press, Rotunda, 2010), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN03-06-02-0566 (referring to “the infamous punishment of Cobbing” and saying “there must be some rules
prescribed in the infliction of corporeal punishment or our situation is far beneath the African Slave”; “the
judge has already become the Executioner, and I blush to think the law of Congress has been so shamefully
violated which abolished that punishment inflicted by stripes and lashes”). “That man left to act agreeably
to the dictates of his own will, when irritated, is naturally cruel, revengeful and unreasonable to the utmost
degree,” one Erastus Roberts wrote James Madison from Camp Fort George in 1813. Id. Roberts expressed
the view that the Army was evading the law passed by Congress by inventing instruments of “punishment
or torture.” Such instrumentalities included making the criminal stand upon “sharp pegs with his bare
feet any length of time his offended master thought proper” and using “a bat about the size of a common
cricket Bat, used to pat the naked posteriors of Soldiers when nealed over a drum or barrel.” “The next
mode of punishment invented exceeded all the rest, for this is an age when Men vie with each other in acts
of cruelty,” Roberts continued. As Roberts explained of what he called “the most common method now”:
“Small Hickery switches were cut, hardened in the fire, and two or three taken together and used to whip
the naked backs and sometimes the posteriors of offenders.” Roberts urged that instead of these disgraceful
punishments, offenders be deprived of whiskey, put in “close confinement” or be required “to do the dirty
work of the Company” such as cleaning sinks. Id.
53. In James, it was argued that the judgment was in contravention of Pennsylvania’s constitution, which
declared that “no cruel punishments shall be inflicted.” James v. Commonwealth, 12 Serg. & Rawle 220, 1825
WL 1899 *2 (Pa. 1825). Ducking, counsel contended, was not a common-law punishment, but had been
introduced by statute. “Ducking,” he argued, “is one of those ‘cruel,’ or barbarous punishments of our British
ancestors, the infliction of which is expressly forbidden by the constitution.” Id. Depictions of a ducking
stool, as well as a pillory and stocks, can be found elsewhere. John Thomas Scharf, History of Maryland from
the Earliest Period to the Present Day 41 (1879).
55. Lockyer v. Andrade, 538 U.S. 63 (2003) (“A gross disproportionality principle is applicable to
52
sentences for terms of years.”); Howard J. Alperin, Length of Sentence as Violation of Constitutional Provisions
Prohibiting Cruel and Unusual Punishment, 33 A.L.R.3d 335 (1970) (compiling cases).
56. Thomas Jefferson’s proposed extradition convention with Spain—to use the words of the editors
of his papers—“came to naught.” As editors Barbara Oberg and J. Jefferson Looney explain: “Spanish
negotiators insisted that the convention include all malefactors as well as fugitive slaves, whereas their
American counterparts wished to restrict it to premeditated murderers. Unable to reconcile these differences,
the United States and Spain failed to reach an agreement.” Considerations on a Convention with Spain
(Mar. 22, 1792), Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of Thomas Jefferson Digital Edition
(Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/
TSJN-01-23-02-0275.
57. Persons facing murder charges do not have a constitutional right to bail under the Eighth
Amendment. Carlson v. Landon, 481 U.S. 739 (1952); United States ex rel. Covington v. Coparo, 297 F.
Supp. 203 (S.D.N.Y. 1969); see also Salerno, 481 U.S. at 752 (“The Eighth Amendment addresses pretrial
release by proving merely that ‘[e]xcessive bail shall not be required.’ This Clause, of course, says nothing
about whether bail shall be available at all.”). In his Commentaries, William Blackstone observed: “in
felonies, and other offences of a capital nature, no bail can be a security equivalent to the actual custody of
the person.” Referencing the English Bill of Rights, Blackstone wrote: “[I]t is expressly declared by statute
1 W. & M. st. 2. c. 1. that excessive bail ought not be required: though what bail shall be called excessive,
must be left to the courts, on considering the circumstances of the case, to determine.” William Blackstone,
Commentaries, bk. 4, ch. 22, vol. 4, pp. 294–95.
60. The Court in Weems began its analysis by noting that “[w]hat constitutes a cruel and unusual
punishment has not been exactly decided,” explaining that “[n]o case has occurred in this court which has
called for an exhaustive definition.” Weems, 217 U.S. at 368–69; see also Solem, 463 U.S. at 287 (discussing
Weems); id. at 290 (“we hold as a matter of principle that a criminal sentence must be proportionate to
the crime for which the defendant has been convicted”). It is clear that the Eighth Amendment protects
everyone. Roper, 543 U.S. at 560 (“By protecting even those convicted of heinous crimes, the Eighth
Amendment reaffirms the duty of the government to respect the dignity of all persons.”); Madrid v. Gomez,
889 F. Supp. 1146, 1244–45 (N.D. Cal. 1995) (“[W]hile incarceration may extinguish or curtail many rights,
the Eighth Amendment’s protections against cruel and unusual punishment still retain its ‘full force’ behind
prison doors.”). It is also clear that in capital cases the Eighth Amendment requires that a punishment must
be “proportioned” to the offense. Kennedy, 128 S. Ct. at 2649.
61. “Time works changes, brings into existence new conditions and purposes,” the Court emphasized.
Weems, 217 U.S. at 373. As the Court explained of constitutions:
The future is their care, and provision for events of good and bad tendencies of which no prophecy
can be made. In the application of a constitution, therefore, our contemplation cannot be only of
what has been, but of what may be. Under any other rule a constitution would indeed be as easy of
application as it would be deficient in efficacy and power. Its general principles would have little
value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words
might be lost in reality.
Id. Had a purely “historical” interpretation of the Eighth Amendment prevailed in Weems, Justice Brennan
noted in Furman, the Cruel and Unusual Punishments Clause “would have been effectively read out of the
Bill of Rights.” Furman, 408 U.S. at 265 (Brennan, J., concurring).
62. In 1816, Jefferson wrote Samuel Kercheval to explain his views: “Some men look at constitutions with
53
sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe
to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond
amendment.” “[L]et us provide in our constitution for its revision at stated periods,” Jefferson wrote, adding,
“What these periods should be, nature herself indicates. By the European tables of mortality, of the adults
living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period
then, a new majority is come into place; or, in other words, a new generation.” As Jefferson explained: “Each
generation is as independent of the one preceding, as that was of all which had gone before.” Ellis, American
Sphinx, 131–32; TJ to Samuel Kercheval ( July 12, 1816).
63. Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in
Constitutional Adjudication, 22 Yale L. & Pol’y Rev. 329, 330 (2004) (“In writing the Constitution, the
Framers looked to other systems and thinkers from other lands for enlightenment, and they understood that
the new nation would be bound by ‘the Law of Nations,’ today called international law.”); see also Russell
G. Murphy & Eric J. Carlson, “Like Snow [Falling] on a Branch . . .”: International Law Influences on Death
Penalty Decisions in the United States, 38 Denv. J. Int’l L. & Pol’y 115, 141–44 (2009).
64. Compare Powell v. Texas, 392 U.S. 514, 532 (1968) (plurality opinion) (conviction for public
drunkenness was not cruel and unusual punishment and did not come within the rule laid down in Robinson
because “appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk”).
In Solem, the habitual offender’s prior offenses were classified by the Court as “nonviolent” and “all relatively
minor.” Id. at 296–97. In making its ruling, the Court called the sentence at issue “far more severe than the
life sentence we considered in Rummel v. Estelle.” Solem, 463 U.S. at 297. The criminal in Rummel v. Estelle,
445 U.S. 263 (1980), the Court emphasized, was parole-eligible in twelve years whereas Jerry Helm, barring
executive clemency, would spend “the rest of his life in the state penitentiary.” Solem, 463 U.S. at 297, 301. In
Rummel, the Supreme Court upheld a “life” sentence (with parole eligibility) for a recidivist convicted of
obtaining $120.75 by false pretenses. Sullivan & Frase, 134; Stinneford, 1740. The U.S. Supreme Court has
also held that the Eighth Amendment did not restrict housing two prisoners in one cell; permitted prison
officials to suspend an inmate’s visitation privileges as a means of ensuring prison discipline; and allowed the
shooting of a prisoner to quell a prison riot. Rhodes v. Chapman, 452 U.S. 337, 339, 352 (1981); Overton v.
Bazzetta, 539 U.S. 126, 136–37 (2003); Whitley v. Albers, 475 U.S. 312, 319–21 (1986); see also Hutto v. Davis,
545 U.S. 370 (1982) (per curiam) (upholding forty year sentence for possession and distribution of nine
ounces of marijuana); Graham v. West Virginia, 224 U.S. 616, 631 (1912) (rejecting a claim that a life sentence
for a recidivist horse thief violated the Eighth Amendment).
65. Compare Cabana v. Bullock, 474 U.S. 376 (1986) (holding that there is no constitutional bar to an
appellate court finding that a defendant killed, attempted to kill, or intended to kill), overruled in part on
other grounds, Pope v. Illinois, 481 U.S. 497, 503 n.7 (1987). By contrast, in Tison v. Arizona, 481 U.S. 137
(2008), the Supreme Court held that “substantial participation in a violent felony under circumstances
likely to result in the loss of innocent human life may justify the death penalty even absent an ‘intent to kill.’”
Id. at 154; see also id. at 158 (“we simply hold that major participation in the felony committed, combined
with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement”).
The Supreme Court recently declined to consider a categorical Eighth Amendment challenge to the
constitutionality of a death sentence for a kidnapping offense. Sears v. Upton, 130 S. Ct. 3259, 3262 n.2
(2010).
66. Kennedy v. Louisiana, Petition for Rehearing, 2008 WL 2847069 *1–2 ( July 21, 2008). The State
of Louisiana, the petition said, “regrettably did not know of this Federal provision,” acknowledging “a
significant error” and accepting “full responsibility” for the failure to bring the law to the Court’s attention in
54
its prior briefs. On October 1, 2008, however, the U.S. Supreme Court denied the motion for rehearing. The
Court held that although “[t]he military death penalty for rape has been the rule for more than a century,”
the death penalty “has not been carried out against a military offender for almost 50 years.” The Court also
emphasized that it was applying the Eighth Amendment to “civilian law” and not in the context of a military
case. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008).
67. Kennedy, 128 S. Ct. at 2658–59 (citing California v. Brown, 479 U.S. 538, 541 (1987) (“death penalty
statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and
unpredictable fashion”) & Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (requiring a
State to give narrow and precise definition to aggravating factors)); Callins v. Collins, 510 U.S. 1141, 1144–45
(1994) (Blackmun, J., dissenting from denial of cert.). The desire to achieve uniform outcomes in cases while
also mandating that defendants be treated in an individualized fashion has led to results that the Court
itself admits are “not all together satisfactory.” Kennedy, 128 S. Ct. at 2659 (citing Tuilaepa v. California,
512 U.S. 967, 973 (1994) (“The objectives of these two inquiries can be in some tension, at least when the
inquiries occur at the same time.”) & Walton v. Arizona, 497 U.S. 639, 664–65 (1990) (Scalia, J., concurring
in part) (“The latter requirement quite obviously destroys whatever rationality and predictability the former
requirement was designed to achieve.”)); see also Walton, 497 U.S. at 664 (Scalia, J., concurring) (“[t]o
acknowledge that ‘there perhaps is an inherent tension’” between Furman and the Woodson-Lockett line of
cases “is rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers
in World War II”) (citing McCleskey, 481 U.S. at 363 (Blackmun, J., dissenting)). In Kennedy, the Court
noted that the Woodson-Lockett line of cases “is still in search of a unifying principle” but that its response
“has been to insist upon confining the instances in which capital punishment may be imposed.” Kennedy, 128
S. Ct. at 2659.
68. The Court in Holden ruled:
Whether a convict, sentenced to death, shall be executed before or after sunrise, or within or without
the walls of the jail, or within or outside of some other inclosure, and whether the inclosure within
which he is executed shall be higher than the gallows, thus excluding the view of persons outside,
are regulations that do not affect his substantial rights. The same observation may be made touching
the restriction . . . as to the number and character of those who may witness the execution, and the
exclusion altogether of reporters or representatives of newspapers. These are regulations which the
Legislature, in its wisdom, and for the public good, could legally prescribe in respect to executions.
Holden, 137 U.S. at 491.
70. The Supreme Court has also rejected a number of other Eighth and Fourteenth Amendment
claims. See, e.g., Oregon v. Guzek, 546 U.S. 517 (2006) (neither the Eighth Amendment nor the Fourteenth
Amendment entitled a capital murder defendant to present additional alibi evidence at resentencing
that was inconsistent with his prior conviction); Jones v. United States, 527 U.S. 373 (1999) (the Eighth
Amendment did not require a jury to be instructed as to the consequences of their failure to agree on a
verdict); Buchanan v. Angelone, 522 U.S. 269 (1998) (the Eighth Amendment did not require that a jury
be instructed on concept of mitigating evidence or on particular statutory mitigating factors); Harris
v. Alabama, 513 U.S. 504 (1995) (Alabama law, which vested sentencing authority in a trial judge but
required the judge to consider an advisory jury verdict, did not violate the Eighth Amendment by failing
to specify the weight a judge must give to the jury’s recommendation); Romano v. Oklahoma, 512 U.S. 1
(1994) (admission of evidence regarding the defendant’s prior death sentence did not undermine the jury’s
sense of responsibility for determining the appropriateness of the death penalty in violation of the Eighth
and Fourteenth Amendments); Sochor v. Florida, 504 U.S. 527 (1992) (no Eighth Amendment violation
55
occurred when a trial judge weighed the heinousness factor, but an Eighth Amendment error occurred when
the trial judge weighed the “coldness factor”); Walton v. Arizona, 497 U.S. 639 (1990) (“especially heinous,
cruel, or depraved” aggravating circumstance, as construed by the Arizona Supreme Court, furnished
sufficient guidance to the sentencer to satisfy the Eighth and Fourteenth Amendments), overruled on other
grounds, Ring v. Arizona, 536 U.S. 584, 588–89 (2002); Franklin v. Lynaugh, 487 U.S. 164 (1988) (prisoner
had no Eighth Amendment right to jury instruction allowing jury to consider residual doubts about guilt
as mitigating circumstance in penalty phase); California v. Brown, 479 U.S. 538 (1987) (instruction during
penalty phase of capital murder trial, that jurors not be swayed by “mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling,” did not violate the Eighth or Fourteenth Amendment);
Pulley v. Harris, 465 U.S. 37 (1984) (Eighth Amendment does not require proportionality review by
appellate court in every case in which it is requested by a defendant); Wainwright v. Goode, 464 U.S. 78
(1983) (the procedures followed by a state court judge did not produce an arbitrary or freakish sentence
forbidden by the Eighth Amendment).
71. The Court in In re Kemmler emphasized that the New York law in question “was passed in the effort
to devise a more humane method” of execution, pointing out that New York’s governor, in commending the
legislation, had stated that “[t]he present mode of executing criminals by hanging has come down to us from
the dark ages.” In re Kemmler, 136 U.S. at 444, 447.
Early legal commentary on the Eighth Amendment expressed particular concern about the modes of
punishment. As one commentator wrote: “The prohibition of cruel and unusual punishment, marks the
improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid
modes of torture, devised by human ingenuity for the gratification of fiendish passion.” James Bayard, A
Brief Exposition of the Constitution of the United States 154 (2d ed. 1840) (cited in Harmelin, 501 U.S. at
981). In another treatise, lawyer Benjamin Oliver also had this to say of the Cruel and Unusual Punishments
Clause: “The various barbarous and cruel punishments inflicted under the laws of some other countries, and
which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish
sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending asunder with
horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging
to death, are wholly alien to the spirit of our humane general constitution.” Benjamin L. Oliver, The Rights
of an American Citizen 186 (1832). However, scholarship has shown that some of the Framers may have
misinterpreted English law in concluding that the parallel provision in the English Bill of Rights was
originally intended to ban particularly vile methods of punishment. Granucci, 843.
72. Furman, 408 U.S. at 244–45 (Douglas, J., concurring) (“The words ‘cruel and unusual’ certainly
include penalties that are barbaric.”); Ford v. Wainwright, 477 U.S. 399, 406 (1986) (“[T]he Eighth
Amendment’s proscriptions are not limited to those practices condemned by the common law in 1789.”);
Gregg v. Georgia, 428 U.S. 153, 171 (1976) (“[T]he Court has not confined the prohibition embodied in
the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century. Instead,
the Amendment has been interpreted in a flexible and dynamic manner.”) (opinion of Stewart, Powell and
Stevens, JJ.); Graham, 130 S. Ct. at 2017–34; Kennedy, 128 S. Ct. at 2658. In Atkins v. Virginia, 536 U.S. 304
(2002), the Supreme Court put it this way: “Thus, we have read the text of the Amendment to prohibit all
excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Id. at 311
n.7. Seven Justices recently reiterated that the Eighth Amendment forbids prison sentences that are grossly
disproportionate to the crime. Ewing v. California, 538 U.S. 11, 23 (2003) (plurality opinion); id. at 35 (Breyer,
J., dissenting).
75. In The Amistad and The Antelope, two cases pre-dating the Fourteenth Amendment, one finds
56
expression of the “great cruelty” and “extreme cruelty” with which slaves were treated by their kidnappers
and slaveholders. The Amistad, 40 U.S. 518, 526 (1841); The Antelope, 23 U.S. 66, 79 (1825).
76. In 1868, the U.S. Supreme Court cited Barron v. Baltimore in rejecting the claim of a condemned
man. Condemned to death for the crime of murder, the petitioner unsuccessfully attempted to invoke rights
set forth in the U.S. Constitution’s Fifth and Sixth Amendments. Twitchell v. Commonwealth, 74 U.S. 321
(1868).
77. In 1788, “Brutus”—writing in a New York newspaper—used the “unusual” terminology when
referring to criminal appeals. “I believe it is a new and unusual thing to allow appeals in criminal matters,”
Brutus wrote, adding: “It is contrary to the sense of our laws, and dangerous to the lives and liberties of the
citizen.” “Brutus,” New York J. (Feb. 28, 1788).
Justice Frankfurter made his remarks about “Due Process” in a dissent in Solesbee v. Balkcom, where
a condemned prisoner claimed a due process right to a judicial determination of his sanity, but where the
Court did not consider the possible existence of an Eighth Amendment right as the Eighth Amendment had
not yet been applied to the States. The Court’s ruling in Solesbee was later abrogated by Ford v. Wainwright,
which categorically forbid the execution of the insane. Ford v. Wainwright, 447 U.S. 399, 405 (1950).
“Since this Court last had occasion to consider the infliction of the death penalty upon the insane,” the
Court determined in Ford, referencing its early decision in Solesbee, “our interpretations of the Due Process
Clause and the Eighth Amendment have evolved substantially.” “Now that the Eighth Amendment has
been recognized to affect significantly both the procedural and the substantive aspects of the death penalty,”
the Court ruled in Ford, “the question of executing the insane takes on a wholly different complexion.” Id.
Of course, as the guardian of the constitutional rights, the Supreme Court has the final say over what “due
process of law” means.
79. Though it has been argued that the Privileges or Immunities Clause—or perhaps the Ninth
Amendment—prohibits States from violating inmates’ Eighth Amendment rights, the incorporation of
the Bill of Rights has been premised on the Fourteenth Amendment’s Due Process Clause. Cooper Indus.,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434 (2001); Michael P. O’Shea, Purposeless Restraints:
Fourteenth Amendment Rationality Scrutiny and the Constitutional Review of Prison Sentences, 72 Tenn. L.
Rev. 1041, 1046 n.36 (2005). The Supreme Court recently refused to overrule Slaughter-House Cases, with
four Justices ruling: “For many decades, the question of the rights protected by the Fourteenth Amendment
against state infringement has been analyzed under the Due Process Clause of that Amendment and
not under the Privileges or Immunities Clause.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3030–31
(2010). Although Justice Clarence Thomas noted that the terms “privileges” and “immunities” had long
been considered synonyms for “rights,” the Court declined to take a position with respect to the “academic
debate” between proponents of “total incorporation” versus “selective incorporation.” Id. at 3058–88
(Thomas, J., concurring in part).
81. The bill of attainder of Josiah Philips was itself condemned as a “wicked” and “arbitrary” act by
Edmund Randolph at Virginia’s ratification convention. Debate in Virginia Ratifying Convention, June 9,
1788.
82. Strauder v. West Virginia, 100 U.S. 303 (1880) (a black defendant is denied equal protection of the
laws when the State puts him on trial before a jury from which members of his race have been purposefully
excluded). In O’Neil, the defendant, a New Yorker, had been convicted of selling intoxicating liquor without
authority in violation of Vermont law. O’Neil, 144 U.S. at 325. The jury found the defendant, John O’Neil,
guilty of 307 offenses, and he was ordered to pay a fine of $6,140 and, if the fine was not paid, to a term of
imprisonment of 19,914 days. Id. at 327–30. A dissent in O’Neil took strong issue with the majority’s holding.
57
“The punishment imposed,” Justice Field wrote, “was one exceeding in severity, considering the offences of
which the defendant was convicted, anything which I have been able to find in the records of our courts
for the present century.” Id. at 338 (Field, J., dissenting). The sentence, Field wrote, “was six times as great as
any court in Vermont could have imposed for manslaughter, forgery or perjury,” and “may justly be termed
both unusual and cruel.” Id. at 339 (Field, J., dissenting). “That designation, it is true,” wrote Field, “is usually
applied to punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching
of limbs and the like, which are attended with acute pain and suffering.” Id. But, Field added, “[t]he
inhibition is directed, not only against punishments of the character mentioned, but against all punishments
which by their excessive length or severity are greatly disproportioned to the offences charged.” Id. at 339–40.
Justice Field laid out his position in a lengthy argument:
The state may, indeed, make the drinking of one drop of liquor an offense to be punished by
imprisonment, but it would be an unheard-of cruelty if it should count the drops in a single glass,
and make thereby a thousand offenses, and thus extend the punishment for drinking the single
glass of liquor to an imprisonment of almost indefinite duration. The state has the power to inflict
personal chastisement, by directing whipping for petty offenses,—repulsive as such mode of
punishment is,—and should it, for each offense, inflict 20 stripes, it might not be considered, as
applied to a single offense, a severe punishment, but yet, if there had been 307 offenses committed,
the number of which the defendant was convicted in this case, and 6,140 stripes were to be inflicted
for these accumulated offenses, the judgment of mankind would be that the punishment was not
only an unusual, but a cruel, one, and a cry of horror would rise from every civilized and Christian
community of the country against it. It does not alter its character as cruel and unusual that for each
distinct offense there is a small punishment, if, when they are brought together, and one punishment
for the whole is inflicted, it becomes one of excessive severity.
Id. at 458–59.
Justice Field believed that “every citizen of the United States is protected from punishments which
are cruel and unusual.” Id. at 467. Justice Harlan, another dissenter, also agreed with that view. Id. at 370
(Harlan, J., dissenting) (“I fully concur with Mr. Justice Field, that since the adoption of the Fourteenth
Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the
Constitution of the United States, can be denied or abridged by a State in any respect to any person within
its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution.”);
id. at 370–71 (Harlan, J., dissenting) (“Among those rights is immunity from cruel and unusual punishments,
secured by the Eighth Amendment against Federal action, and by the Fourteenth Amendment against
denial or abridgement by the States. A judgment, therefore, of a state court, even if rendered pursuant to
a statute, inflicting or allowing the infliction of a cruel and unusual punishment, is inconsistent with the
supreme law of the land. The judgment before us by which the defendant is confined at hard labor in a
House of Correction for the term of 19,914 days, or fifty-four years and two hundred and four days, inflicts
punishment, which, in view of the character of the offenses committed, must be deemed cruel and unusual.”).
84. “Castration was,” scholar Steven Wilf writes, “most certainly a vestige of slave law.” Wilf, 120.
“Castration,” he recounts, “was a sanction for black rapists, not whites.” “Both slave owners and the
authorities, who were often forced to reimburse masters for the loss of an executed slave,” he notes, “opposed
death sentences on economic grounds.” Id. at 121.
85. The common law forbade jailers from subjecting prisoners to any “pain or torment,” whether through
harsh confinement in leg irons or otherwise. Richardson v. McKnight, 521 U.S. 399, 407 (1997).
58
86. In re Birdsong held that the prohibition on cruel or unusual punishments contains “no syllable
relative to the character or color of the victim in that matchless charter for the preservation of right and the
prohibition of wrong.” “If the jailer is judge, jury, and executioner,” the court stated, “can it be predicted with
certainty what will be the character or color of the next victim of the chain and padlock?” “It is a rule we
are considering,” the court held, “a rule for the protection of the unfortunate as well as of the vicious.” In re
Birdsong, 39 F. at 603.
87. Michigan Supreme Court Justice Thomas Cooley taught constitutional law at the University of
Michigan Law School and authored several books and articles on constitutional law. Thomas M. Cooley
Law School, Thomas McIntyre Cooley (1824–1898), visited Feb. 9, 2011, http://www.cooley.edu/overview/
tmctheman.htm. In his treatise, Constitutional Limitations, Cooley wrote:
It is certainly difficult to determine precisely what is meant by cruel and unusual punishments.
Probably any punishment declared by statute for an offence which was punishable in the same way at
the common law could not be regarded as cruel or unusual in the constitutional sense. And probably
any new statutory offence may be punished to the extent and in the mode permitted by the common
law for offences of similar nature. But those degrading punishments which in any State had become
obsolete before its existing constitution was adopted, we think may well be forbidden by it as cruel
and unusual. We may well doubt the right to establish the whipping-post and the pillory in States
where they were never recognized as instruments of punishments, or in States whose constitutions,
revised since public opinion had banished them, have forbidden cruel and unusual punishments. In
such States the public sentiment must be regarded as having condemned them as “cruel,” and any
punishment which, if ever employed at all, has become altogether obsolete, must certainly be looked
upon as “unusual.”
Cooley, Constitutional Limitations, 403–4. In a footnote, Cooley noted that “[i]n New Mexico it has
been decided that flogging may be made the punishment for horse-stealing.” Id. at 404 n.1 (citing Garcia v.
Territory, 1 N.M. 415 (1869)). Cooley added, however, that “[t]he power in prison keepers to inflict corporal
punishment for the misconduct of convicts cannot be delegated to contractors for convict labor or their
managers.” Id. (citing Cornell v. State, 6 Lea 624, 74 Tenn. 624 (1881)).
In Cornell v. State, the Tennessee Supreme Court stated:
The common law undoubtedly considered corporal chastisement by the infliction of blows on the
bare back as one of the ordinary modes of punishment, and such punishment has been held not
to be within the prohibition of our State constitutions against cruel and inhuman punishments:
Commonwealth v. Wyatt, 6 Rand., 694. Our sturdy ancestors not only allowed it in the case of
criminals, sailors and soldiers, but considered it a proper discipline for their wives and children.
Cornell, 1881 WL 4276 at *3. The court in Cornell, however, found that a judge’s punishment—consisting of
striking convicts on their bare backs with a leather strap—was excessive, ruling, “We do not often interfere
with the punishment awarded by the court below, but this is an exceptional case.” Id. at *4. As the court in
Cornell ruled:
It cannot be denied . . . that this form of punishment has fallen under the ban of modern civilization,
as tending to degrade the individual and destroy the sense of personal honor. It has been banished in
this country from the army and navy, and is no longer treated as an ordinary mode of punishment
even for high crimes. And whatever may be the rule elsewhere, the tendency of legislation and public
sentiment in this State are against it.
Id. at *3.
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88. A short article in the Harvard Law Review, published in 1910, noted that “[t]he authorities differ
widely as to the interpretation” of the “cruel and unusual punishments” restriction. What Is Cruel and
Unusual Punishment, 24 Harv. L. Rev. 54, 55 (1910).
93. The Driver court emphasized that Lord Devonshire’s case “laid down” a “safe rule” by which “to judge
the reasonableness of punishment.” As the court wrote: “‘There are two things which have been heretofore
looked upon as very good guides, (1) what has formerly been expressly done in like cases, and (2) for the want
of such particular discretion, then to consider that which comes nearest to it.’” State v. Driver, 78 N.C. 423,
430 (1878). “If these rules are observed the punishment will be such as is ‘usual,’ and therefore not ‘excessive’
or ‘cruel,’” the Driver court ruled. Id.
94. The Driver court explained its approach to the contours of the constitutional prohibition as follows:
What the precise limit is, cannot be prescribed. The Constitution does not fix it, precedents do not
fix it, and we cannot fix it, and it ought not to be fixed. It ought to be left to the Judge who inflicts
it under the circumstances of each case, and it ought not to be abused, and has not been abused
(grossly) in a century, and probably will not be in a century to come, and it ought not be interfered
with, except in a case like the present, where the abuse is palpable. And when that is the case, then
the sleeping power of the Constitution must be waked up to protect the oppressed citizen. The
power is there, not so much to draw a fine line close up to which the Judges may come, but as a
“warning” to keep them clear away from it.
Driver, 78 N.C. at 429.
97. On June 11, 1689, the House of Commons resolved that the judgments against Titus Oates and
another man, Samuel Johnson, were “cruel and illegal.” Johnson—who had been in trouble with the
law before for writing a text titled “Julian the Apostate”—had been convicted of seditious libel, fined a
prohibitively large sum, then ordered to be imprisoned until he paid the fine. In Johnson’s case, it was also
directed that he be pilloried at three locations in London, with it ordered that Johnson be whipped “by the
common hangman from Newgate to Tyburn.” Claus, Antidiscrimination Eighth Amendment, 137–39.
The phrase “cruel and illegal proceedings”—along with a reference to “all free governments where every
Citizen has equal protection by its lawes”—is also found in a 1809 letter sent to James Madison by a soldier
who was dismissed from the service. The soldier complained that he had been suspended of his command
before his trial, and that when he “offered his opinion on the tendency of admitting the opinions of
Witnesses as evidence,” he was met by “browbeating” and a “repremanding” in “open Court.” The soldier also
complained that an effort was made “to destroy his reputation” and that he was tried on frivolous charges in
a manner contrary to the Articles of War, including at sessions “after three O clock in the afternoon” and by
“adjourning the Court to the Exchange Coffee House in Boston and holding a session without ordering him
there.” J. C. A. Stagg, ed., The Papers of James Madison Digital Edition (Univ. of Virginia Press, Rotunda,
2010), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/JSMN-03-04-02-0644 (“The
undersigned Alden G. Cushman . . . beges leave to state to your Excellency and protest in the most solemn
manner against the cruel and illegal proceedings against him, to deprive him of his rank as an Officer and his
character as Citazen.”).
104. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 684 (Mass. 1973) (“the soul-chilling
inhumanity of conditions in American prisons has been thrust upon the judicial conscience”), aff ’d, 494
F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977 (1974). In Farmer, the Supreme Court held that a prison
official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement “unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837.
60
105. Compare Alberti v. Klevenhagen, 790 F.2d 1220, 1228 (5th Cir. 1986) (“nor does the Eighth
Amendment require the provision of every amenity needed to avoid mental, physical, or emotional
deterioration”); Johnson v. Ozmint, 456 F. Supp.2d 688, 697 (D. S.C. 2006) (“the court finds that because
the restricted diet was imposed only for a short time, with no resultant long-term adverse effects, it was a
constitutionally permissible security measure taken during the pendency of the lock-down”).
106. “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments,” the Court held in
Hudson, noting that not every “malevolent touch” by a prison guard will give rise to a federal cause of action,
“necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort ‘repugnant to the conscience of mankind.’” Hudson v. McMillian, 503 U.S. 1,
9-10 (1992) (citations omitted); accord Graham v. Gunter, 61 F.3d 916, 1995 WL 447908 at *1–3 (10th Cir.
1995) (prisoner’s brief, unintentional exposure to floor-wax fumes is not actionable as the exposure was de
minimis).
107. Wilson v. Seiter, 501 U.S. 294, 297 (1991) (prisoners claiming that conditions of confinement
constituted Eighth Amendment violation need to show “deliberate indifference” on the part of prison
officials). “What is necessary to establish an ‘unnecessary and wanton infliction of pain,’” the Court has said,
“varies according to the nature of the alleged constitutional violation.” Hudson, 503 U.S. at 5 (citing Whitley,
475 U.S. at 320).
Chapter 6. Capital Punishment in America (pages 222–264)
1. The states that authorize the death penalty are Alabama, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and
Wyoming. The states that no longer authorize the death penalty are Alaska, Hawaii, Illinois, Iowa, Maine,
Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island,
Vermont, West Virginia, and Wisconsin. Death Penalty Info. Ctr., Facts About the Death Penalty (May 9,
2011).
2. Of more than 400 federal capital prosecutions since 1988, only 69 resulted in death sentences, with
many more ending in plea bargains or sentences less than death. At least sixteen federal prosecutions resulted
in acquittals or the pre-trial dismissal of charges on grounds of innocence. Death Penalty Info. Ctr., Federal
Death Penalty, visited Feb. 7, 2011, http://www.deathpenaltyinfo.org/federal-death-penalty.
5. David C. Baldus & George Woodworth, Race Discrimination in the Administration of the Death
Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 39 Crim.
L. Bull. 194, 202 (2003); Maxine Goodman, A Death Penalty Wake-Up Call: Reducing the Risk of Racial
Discrimination in Capital Punishment, 12 Berkeley J. Crim. L. 29, 37–38 (2007); William J. Bowers et
al., Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the
Defendant Is Black and the Victim Is White, 53 DePaul L. Rev. 1497 (2004).
8. Other Justices have raised substantial Eighth Amendment concerns as to conditions of confinement
involving solitary confinement where a cell was kept in complete darkness for 24 hours a day. Sellars v. Beto,
409 U.S. 968, 969 (1972) (Douglas, J., dissenting).
9. The cell sizes of death-row inmates vary somewhat. In Arizona, the cells are 11ʹ7ʹʹ x. 7ʹ9,ʹʹ for a total
of 86.4 square feet. Ariz. Dep’t of Corrections, Death Row Information, visited Feb. 7, 2011, http://www.
azcorrections.gov/Jill_dr_faq.aspx. In Texas, the cells of death-row inmates measure only 60 square feet.
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Tex. Dep’t of Crim. Just., Death Row Facts, visited Feb. 7, 2011, http://www.tdcj.state.tx.us/stat/drowfacts.
htm.
12. Thompson v. McNeil, 129 S. Ct. 1299, 1300 (2009) (Stevens, J., statement respecting the denial of
cert.) (“Today, condemned inmates await execution for an average of nearly 13 years. To my mind, this figure
underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the
United States.”); id. (“our experience during the past three decades has demonstrated that delays in statesponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel”).
14. John H. Blume, “The Times They Are A-Changin’” (or are they?), 36 Cornell L. Forum 18 (Spring
2010) (“In a previous study, Professor Theodore Eisenberg and I reported that, using Bureau of Justice
statistics, the death sentencing rate in the United States was 2.2 percent (i.e., 2.2 death sentences were
imposed for every 100 murders). Looking at the same data from 1999 through 2007, the rate at which death
sentences are imposed is now half that.”) (citing John H. Blume, Theodore Eisenberg & Martin Wells,
Explaining Death Row’s Population and Racial Composition, 1 J. Emp. Leg. Stud. 165 (2004)).
16. The poll conducted for the Death Penalty Information Center found that 39 percent of
respondents—including disproportionate numbers of African Americans, Catholics and women—believed
they would be disqualified from jury service due to their moral beliefs. Richard Dieter, A Crisis of
Confidence: Americans’ Doubts About the Death Penalty 2 (2007).
17. The “death-qualification” standard has evolved over the years. Prior to 1968, prospective jurors
were routinely excluded from jury service if they had “conscientious scruples” against capital punishment.
See Michael W. Peters, Does “Death Qualification” Spell Death for the Capital Defendant’s Constitutional
Right to an Impartial Jury?, 26 Washburn L.J. 383 (1987). A series of Supreme Court cases, beginning with
Witherspoon in 1968, later modified that practice and the applicable standard for juror removal, though
“death-qualified” juries have remained the norm. See Lockhart v. McCree, 476 U.S. 162, 165 (1986) (the
Constitution does not “prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of
prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially
impair the performance of their duties as jurors at the sentencing phase of the trial”); Buchanan v. Kentucky,
483 U.S. 402, 415 (1987) (rejecting claim that “death qualification” violated the right to a jury selected from
“a representative cross section of the community”).
18. Sheri Lynn Johnson, Race and Recalcitrance: The Miller-El Remands, 5 Ohio State J. Crim. L. 131, 135–
36 (2007); Stanton D. Krauss, The Witherspoon Doctrine at Witt’s End: Death Qualification Reexamined,
24 Am. Crim. L. Rev. 1, 2 (1986); Phoebe C. Ellsworth, To Tell What We Know or Wait for Godot?, 15 Law &
Hum. Behav. 77 (1991); Claudia L. Cowen et al., The Effects of Death Qualification on Jurors’ Predisposition
to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav. 53 (1984); Robert Fitzgerald & Phoebe
C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 L. & Hum. Behav.
31 (1984); Craig Haney, Juries and the Death Penalty: Readdressing the Witherspoon Question, 26 Crime
& Delinq. 512 (1980); George L. Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt
Determination Process, 84 Harv. L. Rev. 567 (1971). Although a capital defendant may challenge for cause any
prospective juror who would automatically vote for death if the defendant were convicted of a capital crime,
see Morgan v. Illinois, 504 U.S. 719 (1992), there are probably very few people who fall into that category.
22. Ironically, the attempt to streamline habeas corpus procedures and speed up executions came at the
same time that increasing numbers of death-row inmates were being exonerated through the very habeas
corpus process sought to be short-circuited. Death Penalty Info. Ctr., The Innocence List, visited Feb. 7, 2011,
http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row.
23. Teague’s bar on retroactive application of “new rules of constitutional criminal procedure” has two
62
exceptions. First, the bar does not apply to rules forbidding punishment of “certain primary conduct” or for
certain classes of defendants “because of their status or offense.” Beard v. Banks, 542 U.S. 406, 416 (2004).
The second exception is for “watershed rules of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.” Id. at 417; Tyler v. Cain, 533 U.S. 656, 665 (2001). Under the
Supreme Court’s jurisprudence, whether a rule is classified as substantive or procedural carries considerable
weight. “New substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004).
According to the Court, substantive rules apply retroactively because they “necessarily carry a significant risk
that a defendant stands convicted of ‘an act that the law does not make criminal’” or “faces a punishment
that the law cannot impose upon him.” Id. at 352. In contrast, “[n]ew rules of procedure” are not applied
retroactively for the stated reason that “[t]hey do not produce a class of persons convicted of conduct the law
does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.” Id.
The Court has decided many such “retroactivity” cases, making life-and-death decisions hinge on a
doctrine that even many lawyers find indecipherable. Beard v. Banks, 542 U.S. 406, 408 (2004) (Mills v.
Maryland, 486 U.S. 367 (1988) held not retroactive in a death penalty case); Schriro v. Summerlin, 542 U.S.
348, 358 (2004) (Ring v. Arizona, 536 U.S. 584 (2002) did not apply retroactively to a death penalty case
already final on direct review); O’Dell v. Netherland, 521 U.S. 151, 153 (1997) (Simmons v. South Carolina, 512
U.S. 154 (1994) was a “new” rule and therefore could not be used to disturb a petitioner’s death sentence in a
habeas corpus proceeding); Lambrix v. Singletary, 520 U.S. 518, 539 (1997) (Espinosa v. Florida, 505 U.S. 1079
(1992) announced a “new” rule that could not be used on collateral review in a death penalty case); Graham
v. Collins, 506 U.S. 461, 463 (1993) (concluding that death-row inmate’s claim was barred by Teague); Sawyer
v. Smith, 497 U.S. 227, 232, 245 (1990) (holding that Caldwell v. Mississippi, 472 U.S. 320 (1985) could not be
used retroactively by a state prisoner seeking habeas relief ); Butler v. McKellar, 494 U.S. 407, 408–09 (1990)
(death-row inmate could not use decision in Arizona v. Roberson, 486 U.S. 675 (1988) retroactively); Saffle v.
Parks, 494 U.S. 484 (1990) (rejecting death-row inmate’s claim on collateral review as barred by the Teague
doctrine).
25. Death-row inmates almost always lack the mental faculties to wade through—let alone understand—
the complex morass of laws, rules, and procedures that lawyers and judges call “death penalty jurisprudence.”
Smith & Starns, 55; Blume, 950 n.54 & 966.
26. Eric M. Freedman, Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines
as an Opportunity to Reconsider the Death Penalty, 2 Ohio St. J. Crim. L. 663 (2005); Robin M. Maher, The
ABA and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases,
36 Hofstra L. Rev. 763, 763 (2008); Supplementary Guidelines for the Mitigation Function of Defense Teams
in Death Penalty Cases, 36 Hofstra L. Rev. 677, 677 (2008). The national study of capital cases is reprinted
in part in James S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995, 78 Tex. L. Rev.
1839 (2000).
30. Kennedy, 128 S. Ct. at 2651 (“The existence of objective indicia of consensus against making a
crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the
approach of those cases here.”); id. at 2657–58 (“we conclude there is a national consensus against capital
punishment for the crime of child rape”); Roper, 543 U.S. at 564 (“The evidence of national consensus against
the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient
to demonstrate a national consensus against the death penalty for the mentally retarded.”).
31. The Supreme Court has stated that the “‘clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country’s legislatures.’” Atkins, 536 U.S. at 312. The
63
Court, however, has sometimes cited foreign law sources in support of its conclusions. Enmund, 102 S. Ct.
at 3376 n.22. In Atkins, in examining “a much broader social and professional consensus,” the Court even
made reference to positions taken by professional organizations, religious groups, polling data, and the views
of the “world community” opposing the death penalty’s imposition on mentally retarded offenders. Atkins,
536 U.S. at 316 n.21. While the Court in Atkins emphasized “these factors are by no means dispositive,” it
noted that “their consistency with the legislative evidence lends further support to our conclusion that
there is a consensus among those who have addressed the issue.” Id.; see also Thompson, 487 U.S. at 830–31
n.31 (considering the views of “respected professional organizations, by other nations that share our AngloAmerican heritage, and by the leading members of the Western European community”).
33. As the Court ruled in Atkins:
Given the well-known fact that anticrime legislation is far more popular than legislation providing
protections for persons guilty of violent crime, the large number of States prohibiting the execution of
mentally retarded persons (and the complete absence of States passing legislation reinstating the power
to conduct such executions) provides powerful evidence that today our society views mentally retarded
offenders as categorically less culpable than the average criminal. The evidence carries even greater force
when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of
the prohibition. Moreover, even in those states that allow the execution of mentally retarded offenders,
the practice is uncommon. . . . The practice, therefore, has become truly unusual, and it is fair to say that a
national consensus has developed against it.
Atkins, 536 U.S. at 315–16 (footnotes omitted); see also Kennedy, 128 S. Ct. at 2656 (“The small number
of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against
capital punishment for this crime.”).
34. The lack of more states outlawing the execution of juvenile offenders did not stop the Court from
finding the practice unconstitutional. As the Court in Roper concluded: “A majority of States have rejected
the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the
Eighth Amendment.” Roper, 543 U.S. at 568. The majority opinion in Kennedy also pointed out:
Louisiana is the only State since 1964 that has sentenced an individual to death for the crime
of child rape; and petitioner and Richard Davis, who was convicted and sentenced to death for
the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007 are the only two
individuals now on death row in the United States for a nonhomicide offense.
Kennedy, 128 S. Ct. at 2657.
35. Weaver v. Clarke, 45 F.3d 1253 (8th Cir. 1995) (holding that prison officials’ alleged deliberate
indifference to prisoner’s smoke-induced illness violated the Eighth Amendment); State ex rel. White v.
Parsons, 483 S.E.2d 1, 6 (W. Va. 1996) (“prison officials may not be indifferent to the desire of inmates to
avoid concentrations of so-called ‘second hand smoke’”).
38. Whether an action is “unusual”—one of the terms used in the Eighth Amendment—depends, the
U.S. Supreme Court has said, 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 inter-relationship 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.”).
In Ingraham, Florida junior high school students brought a civil rights action in 1971 alleging that they
had been subjected to corporal punishments in violation of their constitutional rights. In a 5–4 decision,
the Supreme Court found that paddling students on the buttocks with a flat, wooden paddle as a means
64
of maintaining school discipline did not violate the Eighth Amendment. Ingraham, 430 U.S. at 653–57.
In its 1977 decision, the Court found that teachers could impose “reasonable” but not “excessive force” to
discipline a child in a school setting. “To the extent that the force is excessive or unreasonable,” the majority
ruled, “the educator in virtually all States is subject to possible civil and criminal liability.” Saying the
Eighth Amendment was designed “to protect those convicted of crimes,” the Court held that “the Eighth
Amendment does not apply to the paddling of children as a means of maintaining discipline in public
schools.” Id. at 660–61, 664; see also Moss v. Shelby County, 401 F. Supp.2d 850, 854 (W.D. Tenn. 2005)
(“only those individuals who have been formally convicted of a crime may seek protection under the Eighth
Amendment”); Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (“The eighth amendment applies to
‘convicted prisoners.’”); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (pretrial detainee’s treatment not
properly evaluated under the Eighth Amendment because he had not yet been convicted); Johnson v. City
of Dallas, Tex., 61 F.3d 442, 445 (5th Cir. 1995) (persons not convicted of crimes had no standing to raise an
Eighth Amendment challenge).
40. Cf. Carey, 435 U.S. at 263 (“[W]e foresee no particular difficulty in producing evidence that mental
and emotional distress actually was caused by the denial of procedural due process itself.”). The Northington
case distinguished Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979), which it characterized as involving “a
sheriff ’s idle threat to hang a prisoner”—and which had not given rise to an actionable claim. Northington,
973 F.2d at 1524.
41. Lethal injection as a method of execution originated in Oklahoma, where state legislators first
proposed it after they consulted with the anesthesiology department at the University of Oklahoma College
of Medicine. Baze, 128 S. Ct. at 1526. Kentucky and other states adopted lethal injection protocols based on
Oklahoma’s protocol without independent review of the procedure and without considering alternatives to
it. Id. at 1527 n.1; id. at 1545 (Stevens, J., concurring). Kentucky law provided only that “every death sentence
shall be executed by continuous intravenous injection of a substance or combination of substances sufficient
to cause death.” Ky. Rev. Stat. Ann. § 431.220(1)(a) (West 2006). As a result of the lawsuit in Baze, Kentucky
officials later chose to increase the amount of sodium thiopental to 3 grams. Baze, 128 S. Ct. at 1528.
42. A “phlebotomist” is someone who performs “an invasive procedure to withdraw blood from the
human body to collect samples for the practice of clinical laboratory science,” including for “testing for
analysis, typing and cross-matching of blood for medical examination and human transfusion.” La. Rev. Stat.
Ann., tit. 37, § 1313(13).
43. The judgment and opinion written by Chief Justice Roberts was joined by Justices Alito and
Kennedy. Baze, 128 S. Ct. at 1525. Prior to the Supreme Court’s ruling in Baze, only one Kentucky prisoner,
Eddie Lee Harper, had been executed using Kentucky’s three-drug protocol, apparently without reported
problems. Id. at 1528. A study published in 2005 in a respected medical journal, The Lancet, had set off a
heated controversy about the effectiveness of lethal injection protocols. Id. at 1532 n.2. A toxicology study
drew blood samples from executed death-row inmates and found that “most of the executed inmates”
had concentrations of sodium thiopental that “would not be expected to produce a surgical plane of
anesthesia” and that 43 percent of those executed “had concentrations consistent with consciousness.” Id.
The controversial study, invoked around the country, was cited in motions to stay executions even as others
questioned the study’s findings and its reliability. Id.
45. An execution in North Carolina costs taxpayers $2.16 million more than the cost of a life sentence;
Florida reportedly spends $3.2 million per execution; and each Texas execution costs taxpayers an average of
$2.3 million. See Testimony of Richard C. Dieter, Judiciary Committee, Colorado House of Representatives,
House Bill 1094, pp. 6–7. All 670 of California’s death-row inmates qualify as indigents, with indigent
65
defendants entitled to court-appointed counsel at trial. Cal. Comm’n on the Fair Admin. of Just., Report
and Recommendations on the Admin. of the Death Penalty in Cal. 21 ( June 30, 2008). The California
commission that issued its report in 2008 had this to say about capital punishment’s significant financial
costs: “With a dysfunctional death penalty law, the reality is that most California death sentences are
actually sentences of lifetime incarceration. The defendant will die in prison before he or she is ever executed.
The same result can be achieved at a savings of well over one hundred million dollars by sentencing the
defendant to lifetime incarceration without possibility of parole.” Id. at 75–76.
47. John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty
Debate, 58 Stan. L. Rev. 791, 841 (2005) (“there exists profound uncertainty about the deterrent (or
antideterrent) effect of the death penalty; the data tell us that capital punishment is not a major influence on
homicide rates, but beyond this, they do not speak clearly”); Cass R. Sunstein & Adrian Vermeule, Deterring
Murder: A Reply, 58 Stan. L. Rev. 847, 848 (2005) (“[w]e do not know whether deterrence has been shown”);
Jeffrey Fagan, Death and Deterrence Redux: Science, Law and Casual Reasoning on Capital Punishment, 4
Ohio St. J. Crim. L. 255, 271 (2006) (“Felony murder offenders should be deterred both by the threat of
prison and the threat of execution. But when both are included in multivariate models, there seems to be no
greater marginal threat from execution than from a generalized effect from incarceration.”).
48. Fagan, Zimring, & Geller, 1804 & nn.6–7, 1860 (analyzing data since the resumption of executions
following Gregg, finding “[t]here is simply no visible evidence of the marginal deterrent impact of the
death penalty on death-eligible killings,” and concluding that “the marginal deterrent effect of the threat
or example of execution on those cases at risk for such punishment is invisible”). Some statistical studies
conclude that executions, far from deterring crime, actually have a brutalizing effect, causing even more
homicides. Bessler, Death in the Dark, 184–86 (discussing studies).
59. Justice Gerald Heaney argued in Singleton that the execution of a man “who is severely deranged
without treatment, and arguably incompetent when treated, is the pinnacle of what Justice Marshall called
‘the barbarity of exacting mindless vengeance.’” Singleton, 319 F.3d at 1030 (Heaney, J., dissenting).
60. Compare Liliana Lyra Jubilut, Death Penalty and Mental Illness: The Challenge of Reconciling Human
Rights, Criminal Law, and Psychiatric Standards, 6 Seattle J. for Soc. Just. 353, 367 (2007) (“The most
conservative studies find that up to 10 percent of inmates on death row suffer from serious mental illness.
However, other studies suggest that the proportion of prisoners on death row who have been treated for
some kind of psychiatric disorder can be as high as one-third.”) with Kelly A. Gabos, The Perils of Singleton v.
Norris: Ethics and Beyond, 32 Am. J.L. & Med. 117, 119 (2006) (a 2003 British Broadcasting Company study
reported that 10 percent of America’s death-row inmates are mentally ill). As many as half of all death-row
inmates reportedly suffer from intermittent insanity. Smith & Starns, 75; Barua, 4 (citing American Civil
Liberties Union, Mental Illness and the Death Penalty in the United States (2005)).
66. In 1793, Dr. Benjamin Rush, too, had confidently, if mistakenly predicted: “Humanity and reason
are likely to prevail so far in our legislature that a law will probably pass in a few weeks to abolish capital
punishment in all cases whatever.” Banner, 88–89.
68. King Henry VIII once enacted a law requiring that if a man convicted of treason fell mad, he should
be executed anyway. That law, however, was uniformly condemned. The “cruel and inhumane Law,” Coke
wrote, “lived not long, but was repealed, for in that point also it was against the Common Law.” Ford v.
Wainwright, 477 U.S. 399, 408 n.1 (1986).
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Chapter 7. The Road to Abolition (pages 265–338)
2. A 1611 compilation of laws for the Jamestown Colony also provided that whoever “shall murther or
take away the life of any man, shall bee punished with death.” Binder, 109. Although fifty capital crimes
existed in England as of 1688, that number rose to over 200 in the next century. Millett, 553. The word
“draconian” is actually derived from Draco, the Greek man who compiled a criminal code for Athens in 621
B.C. He decided that practically every offence—from laziness and stealing vegetables to murder—should be
punished by death. Mercer, 30.
3. As Thomas Jefferson wrote, prejudice against Quakers also occurred in Virginia. See Thomas Jefferson,
Autobiography Draft Fragment, Jan. 6-July 27, 1821 (“Towards Quakers who came here they were most
cruelly intolerant, driving them from the colony by the severest penalties.”). Jefferson himself favored
religious tolerance, pointing to the experiences of Pennsylvania and New York, where—he said—“peace and
order” were maintained in spite of the diversity of religious views. “They do not hang more malefactors than
we do,” Jefferson said. John P. Foley, ed., The Jeffersonian Cyclopedia 141 (1900).
5. In his diary entry dated December 14, 1779, John Adams also noted “[t]hat hanging is the capital
Punishment” and that “[t]hey burn, some times, but it is after death.” C. James Taylor, ed., The Adams Papers
Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://rotunda.upress.virginia.
edu/founders/ADMS-01-02-02-0009-0008-0007 (entry for 1779 Decr. 14. Tuesday).
6. 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).
7. Gilreath, 565–66 (noting that Indians and slaves were sometimes burned to death); Bigel, 35 & n.130
(under a 1786 North Carolina law, horse thieves were subject to pillory, whipping, branding, and having
their ears cut off, with execution available for a second offense). In Boston, two lawyers—John Adams
and Josiah Quincy—represented the British soldiers involved in what became known as the “Boston
Massacre.” After a six-day trial, jurors acquitted Captain Preston, and in a second trial of eight soldiers, six
were acquitted and two were found guilty of manslaughter. The latter two defendants were punished in the
courtroom by being branded on their thumbs before being released. Unger, Lion of Liberty, 67–69.
8. George Washington’s fears were not unjustified. A newspaper column titled “The Funeral Dirge of
George Washington and James Wilson,” published in 1793, described Washington being executed on a
guillotine for his aristocratic ways. Rappleye, 491–92. A pro-French newspaper also accused Washington of
harboring “monarchical ambitions” and ran a cartoon depicting Washington’s crowned head beneath the
blade of a guillotine. Unger, Last Founding Father, 101. In 1793, not only did French revolutionaries declare
war on Great Britain, Spain and Holland, but Philadelphia was engulfed by an epidemic of yellow fever, with
thousands dying. Rappleye, 498, 502; Unger, Last Founding Father, 98.
9. After Virginia passed its penal reform legislature, James Madison corresponded on that subject with
Boston lawyer Perez Morton, the Harvard-educated son of a tavern keeper who became the Speaker of
the Massachusetts House of Representatives. In 1803, Morton wrote Madison to thank him for his letter
“which covered the penal Laws of Virginia.” Though Madison’s letter has not been found, Morton’s reply
reads in part: “Our Legislature have chosen a large Committee of both Houses to form a penal code on the
penitentiary system, and a Statute for the regulation of the State prison, and report at the next Session; Of
this Committee I have the honor to be one, & doubt not we shall find our Duty much facilitated by the
adoption of as much of the Virginia code, as the customs & habits of our People will admit.” Perez Morton
to JM ( July 18, 1803).
67
12. The Judiciary Act of 1789 further provided that “upon all arrests in criminal cases, bail shall be
admitted, except where the punishment may be death, in which cases it shall not be admitted but by the
supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall
exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence,
and the usages of law.” Judiciary Act of 1789, 1 Stat. 73 (approved Sept. 24, 1789), § 33.
14. George Clinton’s biographer notes that “[o]ne of Governor Clinton’s most controversial policies
during and after the war dealt with the state’s treatment of loyalists.” Kaminski, 177. On one occasion,
Clinton did personally intervene to prevent two Tories from being tarred and feathered, and on another, he
opposed a bill to attaint almost 300 people of high treason, which Clinton believed was “neither founded
on Justice or warranted by sound Policy or the Spirit of the Constitution.” Id. at 78. Though Clinton also
called out the militia to prevent the lynching of some medical students and doctors who had illegally dug up
corpses for use in dissections, in the early days of his command Clinton proclaimed that he would “rather
roast in hell to all eternity than be dependent upon Great Britain or show mercy to a damned Tory.” Id. at 77,
110.
15. Before the U.S. Bill of Rights was ratified, Pennsylvania—with its heavy Quaker influence—had
already abolished the death penalty for robbery, burglary, and sodomy. Friedman, Crime and Punishment
in American History, 73. Also, New York governors George and DeWitt Clinton and Daniel Tompkins
battled New York’s legislature over the issue of capital punishment. Furman, 408 U.S. at 337 (Marshall, J.,
concurring).
Across the Atlantic, other reformers were also pressing to curtail the death penalty’s use. Basil Montagu,
Some Inquiries Respecting the Punishment of Death for Crimes Without Violence (1818); Basil Montagu,
The Rise and Progress of the Mitigation of the Punishment of Death from the Year 1520 to the Year 1687
(1822); Jeremy Bentham, Principles of Penal Law, Bk. II Rationale of Punishment, Appendix: “On Death
Punishment” (1830); John Stuart Mill, “Attempt to Save the Ex-Ministers,” The Examiner (Oct. 24, 1830),
reprinted in 4 Crimmins; Basil Montagu, The Opinions of Different Authors upon the Punishment of Death
(1809, 1812, 1813). For example, in 1813, Jeremy Bentham’s friend, Samuel Romilly, asked that the law for the
punishment of treason—that the offender be dragged to the gallows; be hanged by the neck; and then, while
alive, be cut down, with his entrails taken out and burned; followed by a beheading and a dismembering his
body—be changed to hanging. The existing law, Romilly argued, “inflicts a most cruel death” and “disgraces
the national character by a savage and disgusting spectacle.” Romilly argued against laws creating a “standard
of cruelty,” and pointed out that, in 1790, the punishment for petit treason for women—burning alive—had
been changed to simple death. “I call upon you to remember,” Romilly said, “that cruel punishments have
an inevitable tendency to produce cruelty in the people.” Basil Montagu, The Debate in the House of
Commons (April 5, 1813), reprinted in 4 Crimmins; 1 Crimmins, xxviii–xxxi.
16. 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.”); Edward Schriver, Reluctant
Hangman: The State of Maine and Capital Punishment, 1820–1887, 63 New Eng. Q. 271, 273–79 (1990);
Tobias Purrington, Report on Capital Punishment, Made to the Maine Legislature in 1836, at 3–5, 12, 27 (3d
ed. 1852).
The 1836 report to the Maine legislature made clear that each generation had to decide for itself what
punishments were cruel. As the report stated:
It is necessary to the general interest, to the perpetuity of individual and public liberty, that we
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should recur occasionally to first principles; that we should scrutinize the acts of government, in
order to determine whether it has kept within the sphere of its legitimate or constitutional powers. If
it is found to have encroached upon the rights of citizens, and to have been in the practice of meting
out cruelty and oppression under the imposing name of necessity, no matter if sanctioned by all
nations upon the face of the earth, by past ages, by its great antiquity; for, as precedent cannot confer
the right, it ought to be visited by the hand of reform.
Id. at 4. Citing the Declaration of Independence, the Maine report emphasized that “[a]ll men . . . are
endowed by their Creator with certain inalienable rights, among which is that of life.” Id. at 6. Calling the
death penalty an “infraction of the Constitution,” it also pointed to the state’s constitution, declaring that
“sanguinary laws shall not be passed” and that no “cruel nor unusual punishments” be inflicted. Id. at 28, 30.
The report reasoned: “Sanguinary is derived from a Latin word which signifies blood, and is synonymous
with the Latin sanguinarius and the French sanguinaire, both of which signify bloody, murderous, cruel.
These are the definitions given by Webster, and other lexicographers; and it is in this sense that it is here
used.” Id. at 28. The state’s death penalty law, the report concluded, “is a sanguinary law, and consequently
unconstitutional.” Id. at 29. In a letter to President Millard Fillmore, appealing that the life of a man be
spared, Tobias Purrington—a state legislator from Brunswick, Maine—also cited the language from the
Declaration of Independence about the “unalienable” right to “life.” Id. at 33–34, 37; Vila & Morris, 48.
19. Michigan’s law provided that first-degree murder “shall be punished by solitary confinement at
hard labor in the state prison for life.” Eugene G. Wanger, Historical Reflections on Michigan’s Abolition
of the Death Penalty, 13 T. M. Cooley L. Rev. 755, 756 & n.59 (1996). The imposition of lifetime solitary
confinement was later abandoned. Harold M. Helfman, A Forgotten Aftermath to Michigan’s Abolition of
Capital Punishment, 40 Mich. Hist. Mag. 203, 203–214 (1956).
23. The lead up to Congress’s reduction of death-eligible offenses in 1897 shows how the death penalty’s
popularity has ebbed and flowed. In 1894, a report of the House Judiciary Committee noted that, while “the
people are not, at this time, ready for total abolition,” no executions had taken place in years for many deatheligible federal offenses. “Their existence in the statutes,” the report noted of those laws, “gives a sanguinary
character to our laws inconsistent with the spirit of the people and of the age.” That report showed that while
approximately 85 percent of those tried for capital crimes were convicted in former times, in recent years the
average had fallen to less than 20 percent in the federal courts—“and still lower in the State courts.” Thus,
juries were regularly refusing to convict those indicted for capital crimes, including first-degree murder.
Noting that 16,987 homicides had taken place in the United States from 1890 to 1892, one table showed
that, during that three-year time period, there were 332 executions and 557 lynchings. The statistical analysis,
proffered by Rep. Newton Curtis of New York, concluded that “[i]t is believed that the experience gained
by states and nations which have abandoned the cruel punishments of early ages should invite us to secure
greater safety and protection to human life by speedily making our laws ‘more comfortable to the dictates
of truth and justice, the feelings of humanity, and the undeniable rights of mankind.’” “Capital Crimes,”
Report No. 545, U.S. House of Representatives, 53rd Cong., 2d Sess. (Mar. 6, 1894), pp. 1–2; N. M. Curtis,
Capital Crimes and the Punishments Prescribed Therefor by Federal and State Laws and Those of Foreign
Countries, with Statistics Relating to the Same (1894), pp. 6, 9–11; “Capital Crimes,” Report No. 108, U.S.
House of Representatives, 54th Cong., 1st Sess. ( Jan. 22, 1806), pp. 1–2 (reprinting an 1895 letter from
Sinclair Taliaferro, U.S. District Attorney for the Eastern District of Texas, seeking passage of a federal law
permitting juries to return verdicts of guilty but “without capital punishment,” with Taliaferro noting juries
in his district were likely to acquit defendants who were “undoubtedly guilty” because of the “severity of the
penalty”).
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The onset of war—and the widespread killing of innocents—has often presented the greatest obstacle
to the death penalty’s abolition. 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,
Abolition of the Death Penalty in International Law, 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. The Progressive Era,
sandwiched between the Enlightenment and our own time, saw the best hope for the abolition of America’s
death penalty other than the Supreme Court’s prior flirtation, as expressed in Furman, with outlawing that
punishment. As one abolitionist commentator, William Ross, wrote in 1905: “The scaffold, our relic from
barbarism, has cursed the world for thousands of years. . . . This enlightened age will not always allow it to
block the path of humanity.” “The right to life is natural and inalienable,” Ross said. William Ross, The Death
Penalty—Reasons for Its Abolition, 11 Va. L. Reg. 625, 635, 640 (1905).
24. Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (1973). The
anti-death penalty movement gained steam in the lead up to Furman, with the NAACP playing a key role
in that case, just as it had in challenging lynchings prior to that time. Graham v. Collins, 506 U.S. 461, 481
(1993) (Thomas, J., concurring). Other significant anti-death penalty activity had also taken place. For
example, Albert Camus, a death penalty foe, published “Réflexions sur la guillotine” in the 1950s. Oliver
Todd, Albert Camus: A Life 359, 364 (Benjamin Ivry trans. 1997). Another influential anti-death penalty
title was also published during that time frame. Arthur Koestler, Reflections on Hanging (1957). See also
Lain, 19:
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.
25. Before the Furman decision, the California Supreme Court—which has long spent much of its time
handling death penalty appeals—held that capital punishment violated that state’s constitution. People v.
Anderson, 6 Ca1.3d 628, 100 Cal. Rptr. 152 (1972). That California decision reduced America’s death-row
population by more than a hundred people. Furman, 408 U.S. at 314 n.1 (Marshall, J., concurring).
26. In Furman, Justice Douglas pointed out that all three men were black and went on to describe each
man’s background. Lucious Jackson, 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.” Furman, 408 U.S. at 253
(Douglas, J. concurring). Justice Brennan also noted that one of the historic concerns behind the Cruel
and Unusual Punishments Clause was “a safeguard against arbitrary punishments.” Id. at 274 (Brennan, J.,
concurring). “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.
27. Malloy v. Hogan, 378 U.S. 1, 6 (1964) (“We hold today that the Fifth Amendment’s exception from
compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by
the States.”); Benton v. Maryland, 395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy
prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and
that it should apply to the States through the Fourteenth Amendment.”); Chapin v. Fye, 179 U.S. 127, 130
(1900) (Brown, J., dissenting) (“It appears in this case that defendant intended to claim the benefit of
70
the ‘due process of law’ clause of the 14th Amendment, but inadvertently pitched his claim upon the 5th
Amendment, which also contains a similar clause, but is only applicable to proceedings in the Federal courts.
The mistake is so obvious I think the court should have disregarded it, and passed upon the merits.”).
28. The notion that an informed electorate would find the death penalty unacceptable has been termed
“the Marshall hypothesis.” Austin Sarat & Neil Vidmar, Public Opinion, the Death Penalty, and the Eighth
Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. Rev. 171 (1976).
29. As a lawyer, Marshall had significant experience defending capital cases. Williams, 156, 170, 173. In
the 1930s, for example, Marshall represented a black suspect, Virtis Lucas, accused in the fatal shooting of
Hyman Brilliant, a white man. Id. at 66.
30. Although Chief Justice Warren 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.”
Furman, 408 U.S. at 403 (Burger, C.J., dissenting). “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. In
McGautha, the Court held that giving jurors discretion to decide a defendant’s fate did not violate the
Fourteenth Amendment. The Eighth Amendment was not at issue in the case. Id. at 196.
33. 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, 128 S. Ct. at 2662. One commentator
has called the Gregg decision “an act of judicial reductionism reminiscent of the Dred Scott misjudgment
of 1857, in that both cases involved a choice rejecting the higher in favor of the lower evaluation of human
dignity available to the judges.” Megivern, 595.
41. After the ICJ’s Avena decision, the U.S. Supreme Court held that the decision was not directly
enforceable in a case litigated by a Mexican national, Jose Ernesto Medellín, against the State of Texas.
See Medellín v. Texas, 128 S. Ct. 1346 (2008). Medellín was later executed. Allan Turner & Rosanna Ruiz,
Chron.com, “Medellin Executed for Rape, Murder of Houston Teens,” visited Feb. 7, 2011, http://www.
chron.com/disp/story.mpl/metropolitan/5924476.html.
42. The Universal Declaration of Human Rights also proclaims in another provision: “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Universal Decl. Hum.
Rts., art. 5. Prior to the U.N.’s creation, international humanitarian law—or what is commonly known as “the
law of war”—did provide certain limited protections against the use of the death penalty itself. The 1907
Hague Regulations, for example, proscribed the random and arbitrary execution of prisoners of war. Abuses
during World War I also led to the prohibition on reprisals against prisoners of war in Article 2 of the 1929
Geneva Convention on Prisoners of War. Bessler, Revisiting Beccaria’s Vision, 245 n.354. International law
now makes clear that states must protect individuals from torture and other cruel, inhuman, or degrading
treatment. See, e.g., Thomas Buergenthal, Dinah Shelton, & David P. Stewart, International Human Rights
Law: In a Nutshell 99-104 (4th ed. 2009) (citing sources).
43. The United States ratified the ICCPR in 1992, though it made reservations to Articles 6 and 7 of the
treaty. Schabas, Abolition of the Death Penalty in International Law, 79–80. The U.S. reservation indicated
that the U.S. considered itself bound only to the extent that “cruel, inhuman or degrading treatment or
punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth or
Fourteenth Amendments to the U.S. Constitution. Id. at 382. The U.S. also entered a reservation to the
Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,
a treaty the U.S. ratified in 1994. Id. at 196, 403. In that reservation, the U.S. government stated: “[T]he
71
United States understands that international law does not prohibit the death penalty, and does not consider
this convention to restrict or prohibit the United States from applying the death penalty consistent with
the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any
constitutional period of confinement prior to the imposition of the death penalty.” Id. at 403.
46. Furman v. Georgia, 408 U.S. 238, 288–89 (1972) (Brennan, J., concurring) (“[T]he prospect
of pending execution exacts a frightful toll during the inevitable long wait between the imposition of
sentence and the actual infliction of death.”); Glass v. Louisiana, 471 U.S. 1080, 1080 (1985) (Brennan, J.,
dissenting from denial of cert.) (“One of the reasons I adhere to th[e] view [that capital punishment is
cruel and unusual] is my belief that the ‘physical and mental suffering’ inherent in any method of execution
is so ‘uniquely degrading to human dignity’ that, when combined with the arbitrariness by which capital
punishment is imposed, the trend of enlightened opinion, and the availability of less severe penological
alternatives, the death penalty is always unconstitutional.”).
47. The Constitution is “the Supreme Law of the Land” and all “judicial Officers” are “bound by Oath
or Affirmation, to support this Constitution.” U.S. Const., art. VI; see also 28 U.S.C. § 453 (setting forth the
oath taken by judges).
48. The Fifth Amendment guarantee to a grand jury indictment for all capital offenses originates in
amendments recommended from state ratifying conventions. Susan M. Schiappa, Preserving the Autonomy
and Function of the Grand Jury: United States v. Williams, 43 Cath. U. L. Rev. 311, 329–30 (1993). The phrase
“life or limb” was one familiar to the Founding Fathers. Stephen N. Limbaugh Jr., The Case of Ex Parte Lange
(or How the Double Jeopardy Clause Lost Its “Life or Limb”), 36 Am. Crim. L. Rev. 53, 53 (1999). Both Thomas
Jefferson and John Adams, for example, used this phrase in their correspondence. TJ to George Wythe (Nov.
1, 1778); JA to Dr. J. Morse (Dec. 2, 1815). Today, the phrase “life or limb” is still found in various state laws,
typically in the non-capital context to denote serious bodily harm or death in connection with workplace
hazards. See Justin W. Curtis, The Meaning of Life (or Limb): An Originalist Proposal for Double Jeopardy
Reform, 41 U. Rich. L. Rev. 991, 1020 n.205 (2007) (citing state-law provisions).
51. “In this business of legislation,” Henry warned of a federal constitution without a Bill of Rights, “your
Members of Congress will lose the restriction of not imposing excessive fines, demanding excessive bail, and
inflicting cruel and unusual punishments.” Debate in Virginia Ratifying Convention ( June 14, 1788).
At Virginia’s ratifying convention, another delegate, George Nicholas, argued as follows:
Treason against the United States is defined in the Constitution, and the forfeiture limited to the
life of the person attainted.—Congress have power to define and punish piracies and felonies committed
on the high seas; and offences against the law of nations: But they cannot define or prescribe the
punishment of any other crime whatever, without violating the Constitution.
Debate in Virginia Ratifying Convention ( June 16, 1788) (italics added). This argument, predicated on
the limited, enumerated grant of powers to Congress but presuming that Congress had the power to
punish crimes within its jurisdiction, was made before the Eighth Amendment’s ratification. The Eighth
Amendment, of course, unequivocally bars any “cruel and unusual punishments.”
54. In 1787, James Wilson specifically argued that “[p]ardon is necessary for cases of treason.” Daniel T.
Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 591
n.132 (1991).
55. United States v. Dyers, Crim. No. 1:06-MJ-455, 2007 WL 397109 *8 (N.D. Ga., Jan. 30, 2007); Adair
v. United States, 70 Fed. Cl. 65, 72 (2006), aff ’d on other grounds, 497 F.3d 1244 (Fed. Cir. 2007); Brown v.
Imperial Trading Co., 815 So.2d 1084, 1088 (La. App. 2002); People v. Frost, No. 213983, 1999 WL 33328872
*1 (Mich. App., Dec. 7, 1999); Jones v. State, 701 So.2d 76, 85 n.22 (Fla. 1997), cert. denied, 523 U.S. 1014
72
(1998); Downs v. J. & J. Maint., Inc., 702 S0.2d 845, 848 (La. App. 1997); People v. Sharp, 481 N.W.2d 773,
775 (Mich. App. 1992); State v. Beyer, 441 N.W.2d 919, 922 (N.D. 1989); Commonwealth v. McDonald, 19
Pa D. & C.2d 253, 255, 1960 WL 8354 *2 (Pa. Quar. Sess. 1959); see also Harmelin, 501 U.S. at 976 (defining
“unusual” as “such as [does not] occu[r] in ordinary practice’ and “[s]uch as is [not] in common use”).
Under the sub-entry “Of persons” in the Oxford English Dictionary, the word “cruel” is said to mean
“[d]isposed to inflict suffering; indifferent to or taking pleasure in another’s pain or distress; destitute of
kindness or compassion; merciless, pitiless, hard-hearted.” Oxford English Dictionary 78 (2d ed. 1989). As an
illustration, John Adams described George III—and the actions the king took “in his official capacity”—as
“cruel.” Gerber, The Declaration of Independence, 13. The word “cruelly” is likewise defined as “[w]ith
indifference to or delight in another’s suffering” and “[p]ainfully, sorely; excessively,” while “cruelty” is said
to be “[t]he quality of being cruel; disposition to inflict suffering; delight in or indifference to the pain or
misery of others; mercilessness, hard-heartedness: esp. as exhibited in action.” Oxford English Dictionary
79 (2d ed. 1989). “Unusual” is variously defined as “not usual,” “uncommon,” “exceptional,” or “rare.” Oxford
English Dictionary 249 (2d ed. 1989); Merriam-Webster’s Collegiate Dictionary 1374 (11th ed., 2003).
“Usual,” by contrast, is defined as “in ordinary use,” “[o]rdinary used,” “constantly or customarily employed,”
“in common use,” “ordinary,” “customary,” and “[t]hat ordinarily happens, occurs, or is to be found.” Oxford
English Dictionary 360–61 (2d ed. 1989); see also Merriam-Webster’s Collegiate Dictionary 1378 (11th ed.
2003) (defining “usual” as “accordant with usage, custom, or habit,” “normal,” “commonly or ordinarily used,”
or “found in ordinary practice or in the ordinary course of events”).
60. The word “torture” is defined in the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment as “any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.” U.N. Convention
Against Torture, art. 1(1) (emphasis added). The definition of “torture” in that Convention, however,
currently excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Id.
63. Mason’s objection to the Constitution’s Necessary and Proper Clause was vigorously criticized by “An
Impartial Citizen,” who also used the term “unusual punishments” in a newspaper editorial. As “An Impartial
Citizen” wrote:
It is also objected by Mr. Mason, that under their own construction of the general clause, at the
end of the enumerated powers, the Congress may grant monopolies in trade, constitute new
crimes, inflict unusual punishments, and in short, do whatever they please. Nothing can be more
groundless and ridiculous than this. The words of this clause so much dreaded by Mr. Mason, are,
“To make all laws which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the government of the United States,
or in any department or officer thereof.” Now, I insist that Mr. Mason’s construction on this clause
is absolutely puerile, and by no means warranted by the words, which are chosen with peculiar
propriety.
“An Impartial Citizen,” Petersburg Virginia Gazette (Feb. 28, 1788). As the editorial writer continued:
In this case, the laws which Congress can make, for carrying into execution the conceded powers,
must not only be necessary, but proper—So that if those powers cannot be executed without the aid
of a law, granting commercial monopolies, inflicting unusual punishments, creating new crimes, or
73
commanding any unconstitutional act; yet, as such a law would be manifestly not proper, it would
not be warranted by this clause, without absolutely departing from the usual acceptation of words.
Id.
64. As Patrick Henry argued at Virginia’s ratifying convention:
Though the King can make treaties, yet he cannot make a treaty contrary to the Constitution of his
country. Where did their Constitution originate?—It is founded on a number of maxims, which
by long time are rendered sacred and inviolable.—Where are there such maxims in the American
Constitution? In that country, which we called formerly our mother country, they have had for
many centuries certain fundamental maxims, which have secured their persons and properties and
prevented a dismemberment of their country. The common law, Sir, has prevented the power of the
crown from destroying the immunities of the people. We are placed in a still better condition—in a
more favorable situation than perhaps any people ever were before. We have it in our power to secure
our liberties and happiness on the most unshaken, firm, and permanent basis.—We can establish
what Government we please.—But by that paper we are consolidating the United States into one
great Government, and trusting to constructive security:—You will find no such thing in the English
Government.—The common law of England is not the common law of these States.
Debate in Virginia Ratifying Convention ( June 19, 1788).
65. Phil Felice, Diplomatic Impunity: Time for a Change?, 15 Touro L. Rev. 327, 329–30 (1998) (“In
Britain, in 1708, the Russian Ambassador of Peter the Great was arrested in the streets of London for
failing to pay a debt. When Peter the Great learned of this incident, he forced Lord Whitworth, the
British Ambassador, to convey to the Czar, at a public audience, Queen Anne’s regret for the insult to the
Ambassador. In an attempt to quell the Czar’s anger, the Act of Anne of 1708 was enacted, stating that
all writs and processes to arrest or imprison ambassadors or their servants were null and void.”); John P.
Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, & Margaret A. Hogan, eds., The
Documentary History of the Ratification of the Constitution Digital Edition (Univ. of Virginia Press,
Rotunda, 2009), visited Feb. 2, 2011, http://rotunda.upress.virginia.edu/founders/RNCN-02-10-02-00020007-0001 (“According to William Blackstone, Peter the Great’s ambassador to Great Britain was arrested
for a debt of fifty pounds in July 1708. Instead of claiming diplomatic privilege, the ambassador posted bail
and was released, after which he protested to the British Crown. The attorney general then charged the
persons involved in the arrest, and a jury convicted them of the facts, but the criminality of the defendants’
actions was never determined. In the meantime, Peter demanded that the officials who made the arrest be
executed. Queen Anne replied ‘that she could inflict no punishment upon any, the meanest, of her subjects,
unless warranted by the law of the land.’ To appease Peter and various foreign ministers, Parliament passed
a law making it a punishable crime to arrest diplomats who were entitled to the diplomatic immunity under
the law of nations.”).
Patrick Henry further contended: “So great was the anxiety of Queen Anne, that she wrote a letter
to the Russian prince with her own hand, apologizing for her inability to comply with his demands. The
parliament was consulted, and a law made to prevent such arrests for the future.” “I say again,” Henry said,
“that if you consent to this power, you depend on the justice and equity of those in power.” “When you
yourselves have your necks so low, that the president may dispose of your rights as he pleases, the law of
nations cannot be applied to relieve you.” Virginia Ratifying Convention ( June 18, 1788).
Blackstone wrote that Queen Anne’s statute was “not to be considered as introductive of any new rule,
but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease
to be a part of the civilized world.” Douglas J. Sylvester, Customary International Law, Forcible Abductions,
74
and America’s Return to the “Savage State,” 42 Buff. L. Rev. 555, 598 n.202 (1994) (quoting William
Blackstone’s Commentaries). The Act itself recited that “turbulent and disorderly persons” had insulted the
ambassador by arresting him “contrary to the Law of Nations, and in prejudice of the rights and privileges
which ambassadors and other public ministers, authorized and received as such, have at all times been
thereby possessed of, and ought to be kept sacred and inviolable.” Blackstone added that ambassadors’ rights
“are also established by the law of nations” and that “the common law of England recognizes them in their
full extent.” All persons found to be “prosecuting, soliciting, or executing” process on any ambassador or an
ambassador’s domestic servant, Blackstone noted, “shall suffer such penalties and corporal punishment” as
the lord chancellor and the chief justices, or any two of them, “shall think fit.” Edwin D. Dickinson, The Law
of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 30 (1952).
66. Thomas Jefferson also wrote about the case of the Russian ambassador. As Jefferson wrote in giving
an account of the “Stanhope Affair”:
By the laws of England an assault on any person whatever, whether citizen or alien can be punished
only by the judges in the ordinary course of law. The king can no more interfere than any private
individual. And the mode of punishment for an offence committed even against an ambassador or
other diplomatic character entitled to the protection of the laws of nations was formerly the same, as
where it was against any other foreigner or a citizen. Hence it happened that in the reign of Q. Anne
in the year 1704. when the Russian Ambassador in London was arrested for debt by an individual
and it was found that the ordinary course of punishment prescribed by the laws was not sufficiently
impartial, the English parliament passed an act directing another course of punishment for offences
committed on Ambassadors and other public ministers entitled to the protection of the law of
nations.
Jefferson’s Account of the Stanhope Affair, Barbara B. Oberg & J. Jefferson Looney, eds., The Papers of
Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011, http://
rotunda.upress.virginia.edu/founders/TSJN-01-09-02-0002.
In 1785, a Captain Stanhope—commanding the British frigate Mercury—was sent with a colony of
vessels from Nova Scotia to Boston, to get a supply of provisions for that colony. As Jefferson reported:
“It had happened, that two persons living near Boston, of the names of Dunbar and Lowthorp, had been
taken prisoners during the war, and transferred from one vessel to another, till they were placed on board
Stanhope’s ship. He treated them most cruelly, whipping them frequently, in order to make them do duty
against their country, as sailors, on board his ship.” Once “[p]eace took place,” Jefferson said, “the prisoners
got home under the general liberation.” When Dunbar—who had been given twenty-four lashes in
Antigua—heard Stanhope was in Boston, he confronted him, asked him if he recollected the whipping that
had been meted out, then hit Stanhope with his fist. After Stanhope drew his sword, the sheriff arrived to
protect the captain and the assault stopped there. Captain Stanhope, however, wrote to the state’s governor,
James Bowdoin, who—Jefferson said—“referred him properly to the laws for redress, as he was obliged to do,
and as would have been done in England, in a like case.” Jefferson then wrote of the Stanhope affair: “Had he
applied to the courts, the question would have been, whether they would have punished Dunbar? This must
be answered now by conjecture only; and, to form that conjecture, every man must ask himself, whether he
would not have done as Dunbar did? And whether the people should not have permitted him, to return to
Stanhope the twenty-four lashes?” TJ to William Carmichael (Nov. 4, 1785).
The Stanhope affair generated a great deal of controversy, with the case prompting Governor Bowdoin
to write to Captain Stanhope that “[f ]oreigners are entitled to the protection of the law as well as amendable
to it, equally with any citizens of the United States, while they continue within the jurisdiction of this
75
Commonwealth.” “Any learned practitioner of the law, if applied to,” Bowdoin told Stanhope, “will direct
you to the mode of legal process in the obtaining a redress of injury, if you have been injured, and the
judiciary courts will cause due inquiry to be made touching riotous and unlawful assemblies and their
misdemeanors, and inflict legal punishment on such as by verdict of a jury may be found guilty.” 2 U.S. Dep’t
of State, Diplomatic Correspondence of the United States of America 387–96 (1837) (reprinting exchange
of letters between Governor Bowdoin and Captain Stanhope); Philip Hamburger, Beyond Protection, 109
Colum. L. Rev. 1823, 1849 & n.78 (2009) (citing Letter to Captain Stanhope, Essex J. (Phil.), Sept. 21, 1785,
at 3); see also JJ to JA (Sept. 6, 1785). Governor Bowdoin noted that while he told Captain Stanhope that
“our laws and Constitution” provided “the only way of redress,” that answer “did not comport with Captain
Stanhope’s high idea of himself, who seems to have thought that some special mode of process was due to a
person of his importance.”
68. “Federal Farmer,” Letter XVI ( Jan. 20, 1788) (“These rights are not necessarily reserved, they are
established, or enjoyed but in few countries: they are stipulated rights, almost peculiar to British and
American laws. In the execution of those laws, individuals, by long custom, by magna charta, bills of rights
&c. have become entitled to them.”); id. (“These are rights and benefits individuals acquire by compact; they
must claim them under compacts, or immemorial usage—it is doubtful, at least, whether they can be claimed
under immemorial usage in this country; and it is, therefore, we generally claim them under compacts, as
charters and constitutions.”).
Others, too, used this terminology. Madison, for example, spoke of “long use” in the context of settling
the meaning of “technical language.” JM to Edward Livingston ( July 10, 1822) (“The rules and usages which
make a part of the law, tho’ to be found only in elementary treatises, in respectable commentaries, and in
adjudged cases, seem to be too numerous & too various to be brought within the requisite compass; even
if there were less risk of creating uncertainties by defective abridgments, or by the change of phraseology.
This risk wd. seem to be particularly incident to a substitution of new words & definitions for a technical
language, the meaning of which had been settled by long use and authoritative expositions.”). George
Mason’s notes as to the “Plan settled by the committee of Revisors, in Fredericksburg, January, 1777” also
reflect that “[t]he common law” was “not to be meddled with, except where alterations are necessary.”
Elsewhere, in discussing a landlord’s “common law” rights “obtained in our mother-country from time
immemorial,” George Mason wrote in 1765 that “[u]ninterrupted and long experience carry with them a
conviction of general utility,” though Mason pointed out that “so unlimited a power was liable to be abused,”
making it “necessary to punish the abuse of it by penal statutes, made in terrorem, to preserve justice and
prevent the oppression which the poor might otherwise suffer from the rich.” 1 Kate Mason Rowland, The
Life of George Mason 276, 378 (2006).
71. In 1798, Federalists adopted the Sedition Act, making it a crime to “write, print, utter or publish .
. . any false, scandalous and malicious” words about Congress or the President. Prior to the passage of that
infamous act, Federalists had used common-law seditious libel prosecutions to punish their detractors.
Thomas Jefferson and his party saw the Sedition Act as unconstitutional and as an effort to silence political
opposition. When Federalists like Oliver Ellsworth claimed “that the Act presented no ‘constitutional
difficulty’ because the federal courts were already authorized to punish seditious libel as a common-law
crime,” Republicans denied the premise of that argument. Thomas Jefferson wrote that the Constitution
only gave Congress the power to punish certain crimes “& no other crimes whatsoever,” making Congress’s
act “altogether void & of no force,” and in January 1800, James Madison himself wrote a report raising
objections to federal incorporation of the common law. The report emphasized that the federal government
is “composed of powers specifically granted, with a reservation of all others to the States or to the people.”
76
“In what part of the Constitution . . . is this authority to be found?” Madison asked. After reviewing its
provisions, Madison specifically rejected any suggestion that “the common law is . . . adopted or recognised
by the Constitution.” Madison also argued that federal incorporation of the common law “would confer
on the judicial department a discretion little short of a legislative power.” After the Sedition Act expired
in 1801, Jefferson’s administration avoided the question of the legality of federal common-law crimes by
pursuing prosecutions of Federalist editors for seditious libel in the state courts in 1803, 1804 and 1806.
When, in 1806, Republicans prosecuted two Federalist editors for common-law seditious libel in federal
court, it gave rise to the U.S. Supreme Court case that repudiated the notion of federal common-law crimes.
Jefferson’s Draft ¶¶ 2, 8 & Jefferson’s Fair Copy ¶¶ 2, 8, Barbara B. Oberg & J. Jefferson Looney, eds., The
Papers of Thomas Jefferson Digital Edition (Univ. of Virginia Press, Rotunda, 2008), visited Feb. 2, 2011,
http://rotunda.upress.virginia.edu/founders/TSJN-01-30-02-0370-0002 & TSJN-01-30-02-0370-0003;
Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 Notre Dame
L. Rev. 1149, 1175–79 (2006). In that case, the Supreme Court determined that “[t]he legislative authority
of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have
jurisdiction of the offence.” United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812).
Justice Scalia himself has written that, though “unusual” was considered to be equated with “illegal”
by Englishmen in the English Declaration of Rights, it “seems unlikely” Americans of 1791 understood the
prohibition on “cruel and unusual punishments” precisely as Englishmen of 1689 might have. The “best
historical evidence suggests,” Scalia has written, “that it was not Jeffreys’ management of the Bloody Assizes
that led to the Declaration of Rights provision, but rather the arbitrary sentencing power he had exercised
in administering justice from the King’s Bench, particularly when punishing a notorious perjurer.” Jeffreys,
Scalia notes, “was widely accused of ‘inventing’ special penalties for the King’s enemies, penalties that were
not authorized by common-law precedent or statute.” Indeed, the preamble to the English Declaration of
Rights makes reference to “illegall and cruell Punishments inflicted” and “Prosecutions in the Court of Kings
Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall
Courses.” Noting that “[t]here were no common-law punishments in the federal system,” Scalia argues that
the Cruel and Unusual Punishments Clause “must have been meant as a check not upon judges but upon
the legislature.” “Wrenched out of its common-law context, and applied to the actions of a legislature,”
Scalia added, “the word ‘unusual’ could hardly mean ‘contrary to law.” The Eighth Amendment’s Cruel and
Unusual Punishments Clause, Scalia concludes, “disables the Legislature from authorizing particular forms
or ‘modes’ of punishment—specifically, cruel methods of punishment that are not regularly or customarily
employed.” Harmelin v. Michigan, 501 U.S. 957, 967–69, 976–77 (1991).
73. Interpreting the Eighth Amendment to allow executions under the guise of a “long usage” approach
also ignores the fact that the right to “Life” is an “unalienable” one. Decl. of Independence ( July 4, 1776).
When the “Federal Farmer” used the term “long usuage”—not the way it would be spelled today—a
distinction was made, even then, between “unalienable” rights and other rights. As the “Federal Farmer”
wrote in 1787 as part of the ratification debate:
Of rights, some are natural and unalienable, of which even the people cannot deprive individuals:
Some are constitutional or fundamental; these cannot be altered or abolished by the ordinary
laws; but the people, by express acts, may alter or abolish them—These, such as the trial by jury,
the benefits of the writ of habeas corpus, &c. individuals claim under the solemn compacts of the
people, as constitutions, or at least under laws so strengthened by long usuage as not to be repealable
by the ordinary legislature—and some are common or mere legal rights, that is, such as individuals
claim under laws which the ordinary legislature may alter or abolish at pleasure.
77
“Federal Farmer,” Letter VI (Dec. 25, 1787) (italics added). “The following, I think,” the Federal Farmer
opined then, “will be allowed to be unalienable or fundamental rights in the United States”:
They are at all times intitled to the benefits of the writ of habeas corpus, the trial by jury in criminal
and civil causes—They have a right, when charged, to a speedy trial in the vicinage; to be heard by
themselves or counsel, not to be compelled to furnish evidence against themselves, to have witnesses
face to face, and to confront their adversaries before the judge—No man is held to answer a crime
charged upon him till it be substantially described to him; and he is subject to no unreasonable
searches or seizures of his person, papers or effects—The legislative, executive, and judicial powers,
ought always to be kept distinct—others perhaps might be added.
Id.
The “unalienable” right to “Life”—though not delineated there—had, obviously, already been expressed
in 1776 in the Declaration of Independence. An “unalienable” right, following the Federal Farmer’s
approach, warrants a still higher level of protection than even constitutional or fundamental rights, let alone
common-law rights. See “Federal Farmer,” Letter XVI ( Jan. 20, 1788) (“Security against ex post facto laws,
the trial by jury, and the benefits of the writ of habeas corpus, are but a part of those inestimable rights the
people of the United States are entitled to, even in judicial proceedings, by the course of the common law.”).
75. The Torture Victim Protection Act, passed by Congress in 1992, subjects those who “torture” to
damages in a civil action. The Act provides that “[a]ny individual who, under actual or apparent authority,
or color of law, of any foreign nation . . . subjects an individual to torture . . . or . . . to extrajudicial killing” is
“liable for damages.” 28 U.S.C. § 1350 note 2(a). Many horrific acts short of death have already been classified
as torture. See, e.g., Chowdhury v. WorldTel Bangladesh Holding, Ltd., 588 F. Supp.2d 375, 381 (E.D.N.Y.
2008) (“I have no hesitation in holding that the use of gratuitous, punitive, or coercive electric shock against
a pretrial detainee constitutes torture”); see also Stoker v. Commonwealth, 828 S.W.2d 619, 625 (Ky. 1992)
(“We have no difficulty in holding the bizarre misconduct involved in those charges of Criminal Abuse I
generated by tying up the children, putting tape over their mouths, and forcing them to watch pornographic
movies, can reasonably and appropriately be deemed by a jury to constitute ‘torture, cruel confinement or
cruel punishment . . . to a person twelve (12) years of age or less.’”) (citing Kan. Rev. Stat. §508.100(1)(c));
Kone v. Holder, 621 F.3d 760, 765 n.5 (7th Cir. 2010) (“It is clear that FGM [female genital mutilation]
constitutes persecution under the asylum and withholding of removal standards, and torture under the CAT
[Convention Against Torture].”); Carver v. Commonwealth, 328 S.W.3d 206 (Ky. App. 2010) (“certainly
shaking A.H. to such an extent as to cause brain, retinal, and spinal hemorrhages would constitute torture
or cruel punishment”); Doe v. Nestle, 2010 WL 3969615 *12 (C.D. Cal. Sept. 8, 2010) (“Allegations of severe
beatings, extended confinements, and deprivation of food—causing both physical and mental injury—
generally constitute torture.”); Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir. 1996) (detaining victim,
forcing her to undress, binding her legs and arms, whipping her legs and back with wire, and repeatedly
threatening her with death constituted torture); Melaj v. Michael B. Mukasey, 282 Fed. Appx. 354, 355, 360
(6th Cir. 2008) (“we hold that Petitioner was a victim of torture, an activity which is condemned by civilized
governments,” when an Albanian policemen who refused to fire upon a crowd of political protesters was
detained, tied up by officers wearing masks, and kicked and beaten with fists and a rubber stick).
For purposes of the Convention Against Torture, “torture” is defined “as any act by which severe pain
or suffering, whether physical or mental is intentionally inflicted” and is considered “an extreme form of
cruel and inhuman treatment.” 8 C.F.R. § 208.18(a)(1)-(2). As currently defined in U.S. regulations, however,
“torture” is said not to include “pain or suffering arising only from, inherent in or incidental to lawful
78
sanctions.” “Lawful sanctions” are said to include “judicially imposed sanctions and other enforcement
actions authorized by law, including the death penalty. . . .” 8 C.F.R. § 208.18(a)(3). The Convention Against
Torture has over 140 signatory nations including the United States, though a handful of nations, such
as Iran, Iraq and North Korea, have declined to join this prohibition on torture. Melaj, 282 Fed. App. at
359–60. The Eighth Amendment proscription on “cruel and unusual punishments,” of course, contains no
exception for judicially imposed sanctions or language to that effect.
76. In the Framers’ era, American judges considered themselves at liberty to reject English common-law
precedents they found “barbarous” and “ignorant.” Rogers v. Tennessee, 532 U.S. 451, 475 (2001) (Scalia, J.,
dissenting). John Adams, a lawyer, did not even believe that English common law should be imported on
a wholesale basis into America, but should only be adapted by Americans on a case-by-case basis. Meyler,
571. To the extent English or American common law attached any special connotation to “unusual,” it must
be remembered that the common law evolves with the times and that the foundations of the commonlaw system are variously said to be “experience,” “logic,” “reason,” “justice,” and “common sense.” Rogers
v. Tennessee, 532 U.S. 451, 461–62 (2001); Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 149 (2003);
Associated General Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 533 n.28
(1983); Bowen v. U.S. Postal Serv., 459 U.S. 212, 225 (1983); California v. United States, 438 U.S. 645, 648
(1978); In re Bonner, 151 U.S. 242, 260 (1894); Proprietors of Charles River Bridge v. Proprietors of Warren
Bridge, 36 U.S. 420, 637 (1837); Wilmarth, 161, 163.
78. In 1894, the Supreme Court held that States are not required by the Constitution to grant appeals
as of right to criminal defendants seeking review of trial errors. McKane v. Durston, 153 U.S. 684 (1894). If a
state has created appellate courts as “an integral part” of the system for “adjudicating the guilt or innocence
of a defendant,” however, the Court holds that “the procedures used in deciding appeals must comport with
the demands of the Due Process and Equal Protection Clauses of the Constitution.” Evitts, 469 U.S. at 393.
79. At Virginia’s ratifying convention, George Mason railed against the slave trade, calling it “diabolical
in itself ” and “disgraceful to mankind.” Debate in Virginia Ratifying Convention ( June 15, 1788). “I
should conceive this clause to be impolitic, if it were one of those things which could be excluded without
encountering greater evils,” Madison replied of the clause that permitted slavery for another twenty years.
“The Southern States,” Madison noted, however, “would not have entered into the Union of America,
without the temporary permission of that trade.” Id.
82. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 541 (2005) (summarizing the Village of Euclid holding);
Fath v. Borough of Coraopolis, Civ. Action No. 08–1216, 2010 WL 1816263 n.2 (W.D. Pa. May 3, 2010)
(“Because Mr. Fath was a pretrial detainee when he hanged himself, plaintiff ’s claim is analyzed under the
Fourteenth Amendment’s substantive due process protection against arbitrary abuse of government power
instead of the Eighth Amendment prohibition against cruel and unusual punishment.”); Vargo ex rel. Vargo
v. Plum Borough, No. 09-1048, 2010 WL 1552807 *2 (3d Cir. 2010) (analyzing a claim under “the Fourteenth
Amendment’s substantive due process protection against arbitrary abuse of government power”); accord
Jacobs v. West Feliciana Sheriff ’s Dep’t, 228 F.3d 388, 393 (5th Cir. 2000) (“Unlike convicted prisoners, whose
rights to constitutional essentials like medical care and safety are guaranteed by the Eighth Amendment,
pretrial detainees look to the procedural and substantive due process guarantees of the Fourteenth
Amendment to ensure provision of these same basic needs.”).
In his concurring opinion in Furman, Justice Thurgood Marshall discussed the relationship between the
Eighth Amendment and substantive due process. After saying “[t]here is no rational basis for concluding that
capital punishment is not excessive,” and therefore “violates the Eighth Amendment,” Marshall wrote: “This
79
analysis parallels in some ways the analysis used in striking down legislation on the ground that it violates
Fourteenth Amendment concepts of substantive due process.” Furman v. Georgia, 408 U.S. 238, 314, 359
(Marshall, J., concurring). As Marshall wrote:
The concepts of cruel and unusual punishment and substantive due process become so close as to
merge when the substantive due process argument is stated in the following manner: because capital
punishment deprives an individual of a fundamental right (i.e., the right to life), the State needs a
compelling interest to justify it. Thus stated the substantive due process argument reiterates what
is essentially the primary purpose of the Cruel and Unusual Punishments Clause of the Eighth
Amendment—i.e., punishment may not be more severe than is necessary to serve the legitimate
interests of the State.
Id. at 359 n.141. Historically, the Fourteenth Amendment’s Due Process Clause “has been applied to
deliberate decisions of government officials to deprive a person of life, liberty, or property.” Daniels v.
Williams, 474 U.S. 327, 331 (1986). Both death sentences and executions certainly qualify as deliberate acts.
84. Five justices agreed that minimal due process must be accorded a capital prisoner seeking
clemency—a process traditionally seen as within an executive’s discretion and not subject to judicial review.
See Woodard, 523 U.S. 272 (1998) (Rehnquist, C.J., Scalia, J., Kennedy, J., Thomas, J. (plurality opinion)); id.
at 288 (O’Connor, J., Souter, J., Ginsburg, J., Breyer, J, concurring); id. at 290 (Stevens, J., dissenting).
86. United States v. Moreland, 258 U.S. 433, 441 (1922) (“When an accused is in danger of an infamous
punishment, if convicted, he has a right to insist that he be not put upon trial, except on the accusation of
a grand jury.”); United States v. Ramirez, 556 F.2d 909, 910–20 (9th Cir. 1976) (describing the history of
the abandonment of corporal punishments and noting that, for Fifth Amendment purposes, “at the present
day confinement for more than one year constitutes infamous punishment”), cert. denied, 434 U.S. 926
(1977); compare Ex parte Brede, 279 F. 147, 150 (D. N.Y. 1922) (“A crime which was considered ‘infamous’
at the time of the adoption of the Constitution may, at the present time, fall without that category, as the
result of subsequent legislation following the trend of public opinion.”); State v. Mann, 345 S.E.2d 365, 369
(N.C. 1986) (“Which offenses are considered infamous are affected by changes in public opinion from one
age to another, and the totality of circumstances must be examined in each case before a determination can
be made that a specific crime is ‘infamous.’”) and Justiniano Matos v. Gaspar Rodriguez, 440 F. Supp. 673,
675 (D. Puerto Rico 1976) (“the standards for determining infamous crimes have been held to be applied
pragmatically rather than mechanically, with realistic appreciation of the manner in which a particular
form of punishment is presently viewed by the community”) with In re Millhimes, No. 93-S-697, 1992 WL
675815 *2 (Pa. Ct. Com. Pl., Aug. 31, 1992) (“I do not feel that intense public concern alone is the criteria by
which infamous crimes are to be defined. Otherwise, the shifting winds of public opinion could become an
undesirable constitutional measuring device.”).
87. Compare Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 664 (2004) (“We granted
certiorari and reversed, holding that the community-standards language did not, standing alone, make
the statute unconstitutionally overbroad.”) with id. at 674 (Stevens, J., concurring) (“I continue to believe
that the Government may not penalize speakers for making available to the general World Wide Web
audience that which the least tolerant communities in America deem unfit for their children’s consumption
and consider that principle a sufficient basis for deciding this case.”); Ashcroft v. American Civil Liberties
Union, 535 U.S. 564, 602–03 (2002) (Stevens, J., dissenting) (“In its original form, the community standard
provided a shield for communications that are offensive only to the least tolerant members of society. . . .
In the context of the Internet, however, community standards become a sword, rather than a shield. If a
prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.”); Roth,
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354 U.S. at 509, 512 (Douglas, J., dissenting) (“Any test that turns on what is offensive to the community’s
standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First
Amendment.”).
93. In United States v. Collins, Circuit Justice Benjamin Curtis offered his own take on the meaning of
the phrase “cruel and unusual punishment” in interpreting the act of Congress from 1835 making it a crime to
inflict such punishment. Circuit Justice Curtis ruled as follows:
The act describes four distinct offences. Beating or wounding, imprisoning, deprivation of suitable
food and nourishment, infliction of any cruel and unusual punishment. Each of these is a substantive
criminal act, when proceeding from malice, and without justifiable cause, and one of these offences
cannot be properly described in the indictment by words used in the act of congress to describe
another offence. If the defendant inflicted the punishment of flogging, from malice, he should
have been indicted for beating and wounding the seaman, not for inflicting a cruel and unusual
punishment. That clause was not designed to include the punishment of flogging, which was
not an unusual punishment when the act of 1835 was passed. On the contrary, it was the kind of
punishment then most usual, and known to and sanctioned by the law. However unjustifiably it may
have been inflicted, it is not a kind of punishment against which these particular words in the act
were directed, and consequently the defendant must be acquitted.
United States v. Collins, 25 F. Cas. 545, 545 (Curtis, Circuit Justice) (C.C.D.R.I. 1854) (No. 14,836).
The district attorney in Collins had charged the defendant with flogging even though flogging had been
abolished by an act of Congress in September 1850. Id.
The phrase “cruel or unusual” also appears in trade legislation adopted before the U.S. Bill of Rights was
adopted. See An Act for Granting to the United States in Congress Assembled, Certain Imposts and Duties
Upon Foreign Goods Imported into this State, and for the Purpose of Paying the Principal and Interest of
the Debt Contracted in the Prosecution of the Late War with Great Britain (Oct. 20, 1783) (“Be it enacted
by the Senate and House of Representatives in General Court assembled, and by the authority of the same, That
there be, and there hereby is, granted to the United States in Congress assembled, power to levy within this
Commonwealth, for the use of the United States, the following duties upon goods imported into this State
from any foreign port, island or plantation . . . to be collected under such regulations as the United States
in Congress assembled shall direct, provided such regulations do not . . . impose excessive fines, or . . . inflict
punishments which are either cruel or unusual in this Commonwealth. . . .”), reprinted in Acts and Laws of
the Commonwealth of Massachusetts, ch. 18, pp. 541–43 (1890).
95. United States v. Yatchak, 35 M.J. 379 (C.M.A. 1992) (Article 55 of the Uniform Code of Military
Justice and the Eighth Amendment were violated when a sailor was sentenced to confinement on bread
and water on a ship docked in a domestic shipyard); United States v. Lorance, 35 M.J. 382 (C.M.A. 1992)
(confinement to bread and water on a vessel docked in a domestic shipyard violated Article 55 of the
Uniform Code of Military Justice).
96. As Justice Brennan pointed out in his concurrence in Furman:
We can . . . infer that the Framers recognized the existence of what was then a common punishment.
We cannot, however, make the further inference that they intended to exempt this particular
punishment from the express prohibition of the Cruel and Unusual Punishments Clause. Nor
is there any indication in the debates on the Clause that a special exception was to be made for
death. If anything, the indication is to the contrary, for Livermore specifically mentioned death as a
candidate for future proscription under the Clause.
Furman, 408 U.S. at 283 (Brennan, J., concurring).
81
99. A majority of the U.S. Supreme Court has held for four decades now that the Fourteenth
Amendment does protect women’s rights. See United States v. Virginia, 518 U.S. 515, 519 (1996) (“The United
States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving
exclusively to men the unique educational opportunities VMI affords. We agree.”); id. at 532 (“In 1971, for
the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State
had denied her the equal protection of its laws.”) (citing Reed v. Reed, 404 U.S. 71, 73 (1971)); id. (“Since
Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with
the equal protection principle when a law or official policy denies to women, simply because they are women,
full citizenship stature—equal protection to aspire, achieve, participate in and contribute to society based
on their individual talents and capacities.”). Indeed, the Fourteenth Amendment—on its face—provides
that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.,
amend. XIV (emphasis added). The text of the Fourteenth Amendment—what must guide the Court in its
decisionmaking—thus plainly protects both women and men, Scalia’s “originalist” views notwithstanding.
102. Maier, American Scripture, 110 (“In England, judges had enjoyed tenure on good behavior since
1701, and in 1761 George III himself described the independence of the judiciary as ‘one of the best securities
of the rights and liberties of his subjects.’”). Samuel Chase was represented at his trial in the U.S. Senate
by his friend Luther Martin, a lawyer known for his hard drinking who also served for thirty years as
Maryland’s attorney general. Kaufmann, 7–8, 117, 142. Martin—who came to be known as “Lawyer BrandyBottle”—would also serve as one of the defense lawyers at Aaron Burr’s 1807 treason trial, angering Thomas
Jefferson so much that Jefferson, who called Martin a “federal bull-dog,” inquired in a letter to Virginia’s U.S.
District Attorney George Hay, “Shall we move to commit Luther Martin as particeps criminis with Burr?”
Id. at 150–52. Alluding to President Jefferson’s refusal to produce documents the defense lawyers believed
would exonerate Burr, Martin vigorously complained that “whoever withholds necessary information that
would save the life of a person charged with a capital offense is substantially a murderer and so recorded in
the register of heaven.” Id. at 151. In November 1807, while staying in Baltimore, Martin—along with Burr
and Chief Justice Marshall, who presided over Burr’s trial—were threatened in handbills with being hanged
one afternoon. Though a mob of 1,500 people surrounding Martin’s home on Charles Street and rocks were
thrown through Martin’s windows, only effigies were hanged that day. Id. at 155.
103. “The supreme court,” Brutus wrote in 1788, “then have a right, independent of the legislature, to
give a construction to the constitution and every part of it, and there is no power provided in this system
to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the
sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power
is superior to that of the legislature. Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional
Convention Debates 307 (1986). The Constitution, Brutus noted, “vests the courts with authority to give
the constitution a legal construction, or to explain it according to the rules laid down for construing a law.”
“According to this mode of construction,” he wrote, “the courts are to give such meaning to the constitution
as comports best with the common, and generally received acceptation of the words in which it is expressed,
regarding their ordinary and popular use, rather than their grammatical propriety.” Id. at 295. In one of his
“Farmer” letters, John Dickinson expressed the hope that Americans “will never behold any thing like the
campaign of chief justice Jeffereys.” 1 Paul Leicester Ford, ed., The Writings of John Dickinson 367 (1895).
104. Alpheus Thomas Mason, The Supreme Court: Palladium of Freedom 64–65, 71–72 (1962)
(compiling statements as to the power of courts to declare laws unconstitutional). Though John Adams was
in London and Thomas Jefferson was in Paris during the Constitutional Convention, both men expressed
their views in favor of an independent judiciary before the Bill of Rights was adopted. Bowen, 11, 14.
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105. In an essay, Iredell emphasized the importance of North Carolina’s written constitution, saying that
“[w]ithout an express Constitution the powers of the Legislature would undoubtedly have been absolute
(as the Parliament in Great Britain is held to be).” The significance of a written constitution, Iredell said, lies
in it “not being a mere imaginary thing, about which ten thousand different opinions may be formed, but a
written document to which all may have recourse, and to which, therefore, the judges cannot willfully blind
themselves.” Wilmarth, 133.
107. The Supreme Court has noted that “[t]he Compensation Clause has its roots in the long standing
Anglo-American tradition of an independent judiciary.” Will, 449 U.S. at 217. “A Judiciary free from control
by the Executive and the Legislative is essential,” it explained, “if there is a right to have claims decided
by judges who are free from potential domination by other branches of government.” Id. at 217–18. In
Federalist No. 79, Hamilton stated that “[n]ext to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.” He also noted: “In the general course of
human nature, a power over a man’s subsistence amounts to a power over his will.” Hamilton explained that
“the salaries for judicial officers may from time to time be altered, as occasion shall require, yet so as never to
lessen the allowance with which any particular judge comes into office in respect to him.” Early American
legislators and commentators also discussed the importance of an independent judiciary. 11 Annals of Cong.
739–40 (1802) (statement of John Rutledge Jr.) (“[s]o long as we may have an independent judiciary, the
great interests of the people will be safe”); 2 J. Story, Commentaries on the Constitution of the United
States 403 (1873) (“independence of judges is equally requisite to guard the Constitution and the rights of
individuals”).
108. The U.S. Constitution, Ronald Dworkin argues, often uses “abstract” words that “are not legal
terms of art, or taken from economics or some other branch of social science, but are drawn from ordinary
moral and political use” (e.g., concepts like “liberty,” “freedom,” “cruel” and “equal”). Ronald Dworkin,
Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 127 (1993). “Read in
the most natural way,” Dworkin writes, “the words of the Bill of Rights do seem to create a breathtakingly
abstract, principled constitution.” Id. at 127–28; see also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304,
326 (1816) (“[t]he constitution unavoidably deals in general language”; “[t]he instrument was not intended
to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages”); Roper,
543 U.S. at 578 (“Not the least of the reasons we honor the Constitution, then, is because we know it to be
our own.”).
110. The role of the Declaration of Independence in interpreting the Constitution is a controversial
subject. See, e.g., Lee J. Strang, Originalism, the Declaration of Independence, and the Constitution: A Unique
Role in Constitutional Interpretation?, 111 Penn. St. L. Rev. 413 (2006) (describing divergent opinions).
The Declaration of Independence is described by one scholar as “an obvious precursor” of the Ninth
Amendment, though American courts—at least in recent decades—have not been persuaded. Charles L.
Black Jr., “One Nation Indivisible”: Unnamed Human Rights in the States, 65 St. John’s L. Rev. 17, 26 (1991);
compare Morehouse v. United States Dep’t of Just., No. Civ. A 3:97-CV-0330-D, 1998 WL 320268 at *3 (N.D.
Tex. June 8, 1998) (“The Declaration of Independence does not directly create rights that can be enforced
through the judicial system.”) and Borzych v. Frank, No. 06-C-475-C, 2006 WL 3254497 at *8 (W.D.
Wis., Nov. 9, 2006) (“the Declaration of Independence is not binding law and cannot be enforced in the
context of a § 1983 action”) with Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“the fundamental rights to
life, liberty, and the pursuit of happiness . . . are secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in securing to men the blessings of civilization under
the reign of just and equal laws”); United States v. Cruikshank, 92 U.S. 542, 553 (1875) (“The rights of life and
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. . . liberty are natural rights of man.”) (citing the Declaration of Independence). Because this book’s focus
is the Cruel and Unusual Punishments Clause, a full exploration of the implications of the Declaration of
Independence—as well as the Constitution’s Ninth and Tenth Amendments, which reference “rights” and
“powers” of “the people”—is beyond its scope.
111. In the Lincoln-Douglas debates, Lincoln also invoked the Declaration of Independence. “I had
thought the Declaration contemplated the progressive improvement in the condition of all men everywhere,”
Lincoln said, adding that if it was simply a justification for American independence the document was “of
no practical use now—mere rubbish—old wadding left to rot on the battle-field after the victory’s won,” and
nothing more than “an interesting memorial of the dead past . . . shorn of its vitality, and practical value.”
Maier, American Scripture, 205.
113. Whalen v. United States, 445 U.S. 684, 690 n.5 (1980) (noting that Congress repealed a mandatory
death penalty law for the District of Columbia in 1962). The common law originally treated all homicides as
capital offenses with mandatory death sentences. Eddings v. Oklahoma, 455 U.S. 104, 111 (1982).
114. In Spaziano v. Florida, 468 U.S. 447 (1984), the Supreme Court found “there is no constitutional
imperative that a jury have the responsibility of deciding whether the death penalty should be imposed.”
Kritzer, 465; Marshall v. Florida Dep’t of Corr., 610 F.3d 576, 584 (11th Cir. 2010). In Ring v. Arizona, 536
U.S. 584 (2002), however, the Supreme Court held that the Sixth Amendment required a jury to find
the aggravating factors necessary for the imposition of a death sentence. In that case, the Supreme Court
identified just four states utilizing hybrid death penalty laws in which both the judge and the jury play an
active role. Those states were Alabama, Delaware, Indiana and Florida. Butler v. State, 842 S0.2d 817, 836 n.9
(Fla. 2003) (Pariente, J., concurring in part and dissenting in part). Alabama and Florida still maintain juryoverride provisions permitting judges to overrule jury recommendations in capital cases, though after Ring
Indiana amended its death penalty law to eliminate jury overrides. 2002 Ind. Acts 117 § 2 (amending Ind.
Code § 35–50–2-9 (2002)).
116. The movement away from corporal punishments was gradual, with Georgia’s post-Civil War state
constitution prohibiting “[w]hipping” as a punishment for crime and South Carolina’s similarly barring any
“corporal punishment.” Ga. Const. of 1868, art. I, § 22; S.C. Const. of 1868, art. I, § 16. Maine and Tennessee
forbade subjecting citizens to corporal punishments under military law even earlier. Me. Const. of 1819, art. I,
§ 14; Tenn. Const. of 1834, art. I, § 25.
118. The ratification of the Fourteenth Amendment in 1868 makes resort to the Founding Fathers’
“original intent” of 1787 or 1791, including as to what the Eighth Amendment should be read to prohibit,
illogical because of that significant legal development. In 1824, in Aldridge v. Commonwealth, the Supreme
Court of Virginia held that the cruel and unusual punishments protection was not even “intended” to
apply to “blacks,” “mulattoes” or “slaves.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 447–50 (Va. 1824).
Obviously, the Fourteenth Amendment made clear that the Cruel and Unusual Punishments Clause applies
equally to everyone.
119. William D. Bader, Meditations on the Original: James Madison, Framer with Common Law
Intentions—Ramifications in the Contemporary Supreme Court, 20 Vt. L. Rev. 5, 7 (1995) (“In 1811, Jeremy
Bentham wrote Madison offering his services to codify the law of the United States in its entirety. Bentham
bitterly opposed Blackstone and the common law method that he propounded. He viewed the case-by-case
adjudicatory approach of the common law, with its cornerstone of precedent, as too fragmented, flexible,
and uncertain. Using his a priori rationalism grounded in ‘utility,’ Bentham proposed to codify all laws;
judges would then have a clear, ironclad legislative code to defer to in every decision. Madison displayed his
dedication to the common law method by refusing Bentham’s incredible offer.”).
121. The Founding Fathers were of decidedly different opinions as to whether the Constitution should
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be interpreted in a technical way—as a lawyer might understand the words—or as a document that ought to
be accessible to the average layperson. For example, it was much debated whether the Ex Post Facto Clause
should be read to bar any law that operated retrospectively—the layperson’s view—or only be applied to
penal or criminal laws, the widely shared view of lawyers. In contrast to those who argued for a technical
interpretation of the Constitution’s words, George Mason thought the phrase “ex post facto Law” should
depend upon its import to the average citizen, not to lawyers familiar with Blackstone. Patrick Henry offered
that the Constitution “ought to be like a beacon, held up to the public eye so as to be understood by every
man.” Nelson, 571, 578–84 & n.206.
In his letter to Converse Sherman, who had sent Madison a copy of Noah Webster’s prospectus for a
dictionary, Madison stressed the desirability of “a standard work, explaining, and as far as possible fixing, the
meaning of words and phrases.” He noted that, though “laudable,” “compleat success” would be impossible
and that there was no “perfect remedy” for the “evil” of linguistic change. “In the exposition of laws, and
even of Constitutions,” Madison said, “how many important errors may be produced by mere innovations
in the use of words and phrases, if not controulable by a recurrence to the original and authentic meaning
attached to them!” Nelson, 535–36 (quoting Letter from James Madison to Converse Sherman (Mar. 10,
1826). Other letters by Madison are in the same vein. “The change which the meaning of words inadvertently
undergoes” is a source of “misconstructions of the Constitutional text,” Madison told one correspondent.
It would be “preposterous” to let “the effect of time in changing the meaning of words and phrases” justify
“new constructions” of written constitutions and laws, he told another. “What a metamorphosis would be
produced in the code of law,” Madison said, “if all its ancient phraseology were to be taken in its modern
sense!” Nelson, 536–37 & nn.75–76. In his Commentaries on the Constitution, Justice Story agreed that the
Constitution “is to have a fixed, uniform, permanent construction,” and that “so far . . . as human infirmity
will allow,” it “should be . . . the same yesterday, to-day, and for ever.” Id. at 538.
122. A judge, Madison thought, should generally follow precedents rather than “his solitary opinions as
to the meaning of the law or Constitution.” Bader, 9. Blackstone—a leading theorist—put it this way: “the
doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust.” Id.
at 6.
123. Steven G. Calabresi, Text vs. Precedent in Constitutional Law, 31 Harv. J.L. & Pub. Pol’y 947, 949
(2008) (“[E]arly practice under the Constitution shows that the Framers themselves did not follow a strict
theory of stare decisis on the most significant constitutional issue of their day—the constitutionality of the
Bank of the United States.”); Thomas Healy, Stare Decisis and the Constitution: Four Questions and Answers,
83 Notre Dame L. Rev. 1173, 1182 (2008) (“None of the writers who claim that stare decisis is constitutionally
required suggest that the Framers thought precedent was absolutely binding. . . . Although there may be
room for debate about the original understanding of judicial power, there is no evidence that the founding
generation thought judges were absolutely bound by prior decisions. Even Blackstone, one of the most
ardent supporters of stare decisis, wrote that judges can disregard precedents that are ‘flatly absurd or unjust’
or ‘evidently contrary to reason.’”); Robert Barnhart, Principled Pragmatic Stare Decisis in Constitutional
Cases, 80 Notre Dame L. Rev. 1911, 1913 (2005) (“The American Founders expressed similar attitudes towards
stare decisis. They were all certain it was necessary to some degree but differed strongly on what it entailed
and when it should be abandoned.”). The Supreme Court has overruled its own decisions more than a
hundred times. U.S. Gov’t Printing Office, Supreme Court Decisions Overruled by Subsequent Decisions,
visited Feb. 2, 2011, http://www.gpoaccess.gov/constitution/html/scourt.html; Marsh v. Chambers, 463 U.S.
783, 814–17 (1983) (Brennan, J., dissenting) (“[T]he Constitution is not a static document whose meaning
on every detail is fixed for all time by the life experience of the Framers.”).
124. The debate over the Eighth Amendment’s proper interpretation is illustrated by the conflict over
85
the meaning of the text presented by Justice Scalia and legal theorist Ronald Dworkin. See Note, Original
Meaning and Its Limits, 120 Harv. L. Rev. 1279, 1282 (2007).
129. Prior to Trop v. Dulles, the Supreme Court had suggested in Weems v. United States that the
meaning of the Cruel and Unusual Punishments Clause may be “progressive” and “acquire meaning as public
opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378 (1910). The
Framers themselves recognized that the Supreme Court Justices—as a collective body—would be the ones to
decide important constitutional questions. “Federal Farmer,” Letter XV ( Jan. 18, 1788) (“‘There shall be one
supreme court.’ There ought in every government to be one court, in which all great questions in law shall
finally meet and be determined. . . .”).
130. Hope v. Pelzer, 536 U.S. 730, 745 (2002) (“Hope was treated in a way antithetical to human
dignity”); Ford v. Wainwright, 477 U.S. 399, 406 (1986) (“this Court takes into account objective
evidence of contemporary values before determining whether a particular punishment comports with
the fundamental human dignity that the Amendment protects”); id. at 409 (“the intuition that such an
execution simply offends humanity is evidently shared across this Nation”); Gregg v. Georgia, 428 U.S. 153,
182 (1976) (noting that “the basic concept of human dignity” is “at the core of the Amendment”); id. at 229
(“[A] punishment must not be so severe as to be degrading to human dignity.”) (Brennan, J., dissenting);
Gregg, 428 U.S. at 240–41 (Marshall, J., dissenting) (“[T]he taking of life ‘because the wrongdoer deserves
it’ surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer’s dignity
and worth.”); Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion) (“The basic concept underlying the
[Clause] is nothing less than the dignity of man.”); Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart,
J., concurring) (calling the death penalty “unique” in its “absolute renunciation of all that is embodied in
our concept of humanity”); id. at 371 (Marshall, J., concurring) (“In recognizing the humanity of our fellow
beings, we pay ourselves the highest tribute.”); United States v. Bailey, 444 U.S. 394, 423 (1980) (Blackmun,
J., dissenting) (“It cannot be doubted that excessive or unprovoked violence and brutality inflicted by
prison guards upon inmates violates the Eighth Amendment.”); id. (“[F]ailure to use reasonable measures to
protect an inmate from violence inflicted by other inmates also constitutes cruel and unusual punishment.
Homosexual rape or other violence serves no penological purpose. Such brutality is the equivalent of torture,
and is offensive to any modern standard of human dignity. Prisoners must depend, and rightly so, upon the
prison administrators for protection from abuse of this kind.”); see also Hudson v. Palmer, 468 U.S. 517, 537
(1984) (O’Connor, J., concurring) (“The courts of this country quite properly share the responsibility for
protecting the constitutional rights of those imprisoned for the commission of crimes against society. . . . The
Constitution, as well as human decency, requires no less.”); Roper v. Simmons, 543 U.S. 551, 578 (2005) (the
Constitution sets forth “broad provisions to secure individual freedom and preserve human dignity”).
131. Douglas Mossman, Critique of Pure Risk Assessment or, Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523,
530 n.27 (2006) (describing translations of Kant’s major works). Kant’s writings on capital punishment
were translated into English after the Constitution and the U.S. Bill of Rights were ratified, so they did
not shape the Founding Fathers’ death penalty views prior to the Eighth Amendment’s ratification. See
Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence
as the Science of Right 196–98 (W. Hastie trans., 1887) (1796–97). Hastie’s translation notes that Kant’s
“Science of Right” was published in German in 1796 (but with the year 1797 on the title-page) as the First
Part of his Metaphysics of Morals. That title was “the promised sequel and completion of the Foundation for
a Metaphysic of Morals, published in 1785.” Id. at v & n.2 (translator’s preface). A second edition appeared in
1798, and Kant’s work was translated into Latin in 1798 and again in 1800. It was translated into French in
1837, then again in 1853. Id. at vi. Kant’s work was first translated into English in 1887. Id. Compare Andrew
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Simmonds, Amah and Eved and the Origins of Legal Rights, 46 S.D. L. Rev. 516, 547 (2001) (“Kant would
not have applied the death penalty to the survivor of a duel since the duel took place publicly with the
consent of both parties, and was intended to satisfy an idea of honor.”). Unlike Montesquieu, Kant’s name
is nowhere to be found in The Federalist Papers. See Anthony S. Winer, A Speculation on Enlightenment
Roots, Foreign Law, and Fundamental Rights, 32 Wm. Mitchell L. Rev. 509, n.181 (2006) (“Montesquieu is
cited numerous times in The Federalist Papers.”); compare id. (“[T]he work of John Locke was elemental to
many of the ideas expressed in The Federalist Papers.”); Benjamin V. Madison III, Color-Blind: Procedure’s
Quiet But Crucial Role in Achieving Racial Justice, 78 UMKC L. Rev. 617, 623 (2010) (“With regard to the
American legal system, however, John Locke is the premier philosopher due to the influence of his writings
upon the Founding Fathers. Locke recognized the inherent proclivity of humans to err. Indeed, his Treatise
on Government presumes that government must account for this reality of the human condition.”).
133. House Journal, 25th Cong., 2d Sess. 647 (1838) (describing how petitions to Congress prompted the
appointment of a committee to consider anti-dueling legislation). Dueling—now seen as an anachronism—
was once widely accepted in many parts of the world. David S. Parker, Law, Honor, and Impunity in Spanish
America: The Debate Over Dueling, 1870–1920, 19 Law & Hist. Rev. 311, 314–31 (2001).
137. Thus far, lower courts have declined to extend the Atkins prohibition on the execution of the
mentally retarded to individuals suffering from mental illness. E.g., Commonwealth v. Baumhammers, 960
A.2d 59, 96 (Pa. 2008), cert. denied, 130 S. Ct. 104 (2009); Powers v. State, 992 So.2d 218, 221 (Fla. 2008);
State v. Hancock, 840 N.E.2d 1032, 1059 (Ohio 2006). Lower courts have, thus far, also rejected challenges to
the death penalty’s constitutionality based solely on the risk of executing the innocent. E.g., United States v.
Sampson, 486 F.3d 13 (1st Cir. 2007); United States v. Quinones, 313 F.3d 49 (2d Cir. 2002).
Conclusion (pages 339–348)
2. Benjamin Rush said similar things to John Adams, writing in 1811: “The seeds of truth upon all
subjects are imperishable. While some of them yield their increase suddenly; others, like the acorn, require
centuries to bring them to perfection.” BR to JA ( June 28, 1811).
3. Shaw believed that “[a]ssassination on the scaffold is the worst form of assassination, because there it is
invested with the approval of society.” Id. He also said this: “It is the deed that teaches, not the name we give
it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their
kind.” George Bernard Shaw, Man and Superman 232 (1903).
5. Carlton F.W. Larson, The Declaration of Independence: A 225th Anniversary Re-Interpretation, 76
Wash. L. Rev. 701, 782 (2001) (discussing a July 3, 1776 letter from John to Abigail Adams discussing the
Declaration of Independence and saying, “I am well aware of the toil, and blood, and treasure, that it will
cost us to maintain this declaration, and support and defend these States. Yet, through all the gloom, I can
see the rays of ravishing light and glory.”).
9. A number of U.S. Supreme Court Justices have already indicated that corporal punishments such as
branding, earcropping, and the use of the pillory would no longer be constitutional. Furman, 408 U.S. at 283
n.28 (Brennan, J., concurring) (“No one, of course, now contends that the reference in the Fifth Amendment
to ‘jeopardy of . . . limb’ provides perpetual constitutional sanction for such corporal punishments as
branding and earcropping, which were common punishments when the Bill of Rights was adopted.”); id.
at 384 (Burger, C.J., dissenting) (“punishments such as branding and the cutting off of ears, which were
commonplace at the time of the adoption of the Constitution, passed from the penal scene without judicial
intervention because they became basically offensive to the people and the legislatures responded to this
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sentiment”; “[b]eyond any doubt, if we were today called upon to review such punishments, we would find
them excessively cruel because we could say with complete assurance that contemporary society universally
rejects such bizarre penalties”); id. at 430 (Powell, J., dissenting) (“Neither the Congress nor any state
legislature would today tolerate pillorying, branding, or cropping or nailing of the ears—punishments that
were in existence during our colonial era. Should, however, any such punishment be prescribed, the courts
would certainly enjoin its execution.”).
88