The Eighth Amendment to the United States Constitution, which is mostly cited in the context of capital punishment, was adopted on December 15, 1791, to prohibit the imposition of excessive bail and fines as well as the infliction of unduly cruel and unusual punishments. The latter is the most controversial part of the Amendment as there is no clear definition or constitutional standards that would allow measuring the degree of the cruelty of the punishment. Neither is it specified what kinds of punishments can be considered “unusual”. The Amendment did not exist until the ratification of the Constitution in 1791. Its further evolution and implementation were largely dependent on the political philosophies of the Supreme Court (Baum, 2015).
The paper at hand is going to analyze the attitudes to the Eight Amendment during the terms of the Warren Court (1953-1969), the Burger Court (1969-1986), the Rehnquist Court (1986-2005), and the current Roberts Court (2005-present). The modern trends of criminal justice and speculations about the foreseeable future will also be provided.
The Warren Court (1953-1969)
The Warren Court refers to the period of Earl Warren’s service as Chief Justice. The Court’s philosophy was often criticized for being too much aggressive in its reading of the amendments, expressing strong nationalism (which was evident because of the clear unwillingness of the Court to allow variations of the constitutional rights from one state to another), and overemphasizing protection of minority rights. As far as the Eighth Amendment is concerned, there were two major cases during the period of the Warren Court: Trop vs. Dulles and Robinson vs. California (Scheiber, 2007).
The first case was demonstrative in terms of Warren’s broad vision: the Supreme Court ruled that deprivation of citizenship violated constitutional rights and thus was acknowledged to be excessively cruel. Albert Trop was a citizen of the US. During his military service in the Army in 1944, he deserted from the base but surrendered the day after. The military court sentenced Trop to three years of hard labor, forfeiture of pay, and discharge, which turned out to be the reason his application for a passport was denied in 1952.
The problem was that under the Nationality Act of 1940, the loss of citizenship was inevitable for anyone who deserted from the Army with the consequent dishonorable dismissal. Despite all the attempts made to receive a judgment that would declare him a citizen, Trop lost the case both in the US district court and in the US Court of Appeals for the Second Circuit. However, the Supreme Court did not support this decision. Judge Warren stated that such kind of punishment was more primitive than torturing as it utterly destroys the status of an individual in a civilized society (Scheiber, 2007).
The second case is unique for the evolution of the Eighth Amendment as for the first time in history, the Court prohibited criminalization of drug addiction. Robinson was arrested because of the heroin use but denied being addicted. He was sentenced to 90 days in jail as the state law prohibited being under the influence of narcotics unless they were administered by the licensed doctor. The Supreme Court recognized that the condition of being addicted is not a crime but a disease that had to be treated in health institutions – not in the Court. Therefore, it was decided that the punishment was both cruel and unusual as no guilty act was found. However, the case evoked a lot of controversies. Justices White and Clark dissented as they considered imprisonment quite reasonable for the person who could potentially threaten the State by his condition. Justice White claimed that the Court’s decision undermined the power of California and the State (Baum, 2015).
It comes as no surprise that the attitude of the Warren Court to the Eighth Amendment was one of the major reasons Judge Warren was often accused of imposing his own political and social philosophy upon the country (McCloskey & Levinson, 2016).
The Burger Court (1969-1986)
The Burger Court refers to the period of Warren Burger’s service as Chief Justice. The Court of that time is often described as transitional: even though it continued moving in the liberal direction as its predecessor, it gradually developed into the conservative Rehnquist Court. Although this period was not characterized by the broadness of vision, none of the precedents of the Warren Court were overruled. During the Burger Court’s ruling, two cases (one of which was collective) made a significant contribution to the evolution of the Eighth Amendment (Epstein, Segal, Spaeth, & Walker, 2015).
Furman vs. Georgia case (1972) involved an armed burglary and a felony murder. Although Henry Furman was sentenced to death, the punishment was never executed. The Supreme Court decided that it was unconstitutional. After that, all states had to adjust their laws to the Furman guidelines, which de facto meant a total moratorium on the death sentence (Toobin, 2008).
Gregg vs. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana was the collective case that reaffirmed the right to use the death penalty if it does not violate the Eighth Amendment. After the previous case, Georgia, Florida, Texas, North Carolina, and Louisiana had to introduce several changes to the law to align with the Court’s attitude. Subsequently, they had to deal with five cases of capital punishment. The defendants appealed to the Court for recognizing their punishment unconstitutional and excessively cruel. The major difficulty the Court had to encounter consisted of providing standards that would identify when the capital punishment could be imposed and when it could not. Despite the defendants’ goal to make the Court abolished the death penalty, it concluded that the capital punishment served the purposes of retribution and deterrence and did not go against the idea of human dignity (Toobin, 2008).
Moreover, it was necessary to express moral outrage as some of the crimes were so atrocious that the only possible response could be capital punishment of the criminal. This decision implied that death was not always disproportional to the crime committed and could still serve as a legitimate sanction. The Court came out with two lists of guidelines for other courts to adhere to before deciding on the constitutionality of the punishment. First, it had to provide criteria that would allow limiting the capital punishment discretion; second, judges could take individual characteristics of criminals into account. In the five particular cases, the Supreme Court decided that the sentencing systems of Georgia, Florida, and Texas aligned with the criteria whereas those of North Carolina and Louisiana did not (Williams & Hawke, 2010).
This change of philosophy brought about significant consequences as a lot of states decided to resume executions after the Court’s decision (Williams & Hawke, 2010).
The Rehnquist Court (1986-2005)
The Rehnquist Court indicates the period of William Rehnquist serving as Chief Justice. This Court is considered to be more right-winged and conservative promoting the policy of New Federalism, in which the states received more power than the federal government. The Court is also known for its stability as the same judges served there for 11 years. However, the attitude to the capital punishment of the Rehnquist Court was rather surprising as only two judges were consistently conservative in their decisions (Hansford & Spriggs, 2006).
Two cases were decided literally in 2001. In Shafer vs. South Carolina, a trial judge refused to give the jury any information about the eligibility for parole if the death penalty was substituted for a life sentence. The Supreme Court decided that his actions went against the instructions for capital punishment cases. In Penry vs. Johnson, the same situation repeated: the jury did not receive complete information about the mental retardation of the defendant and sexual abuse in childhood. However, one of the most significant and debatable decisions concerning the Eighth Amendment was Atkins vs. Virginia (2002).
Dary Atkins, a man with a low IQ level, received a death sentence for the violent murder in Virginia. The Court had to decide whether it would be unconstitutional to judge the mentally retarded and concluded that the execution of people with intellectual disabilities should be prohibited. However, the Court should have the right to decide whether the convicted had retardation. This meant that the Court overturned its precedent in the case of Penry vs. Lynaugh where the decision was exactly the opposite (Beard, 2012).
Such inconsistency of the Court’s policy brought about a lot of controversy and made many people question the adequacy of the Eighth Amendment guidelines (Beard, 2012).
The Roberts Court (2005-present)
The Roberts Court refers to the period of John G. Roberts’ service as Chief Justice. This Court is considered to be even more conservative than the previous one (Beard, 2012).
Despite its tendency to conservatism, the Court inspires optimism into the opponents of the death sentence. The Court agreed to rule on cases that are connected with the way the states manage to exercise executions and assess whether they violate the Eighth Amendment. There is an opinion that this liberal intention of the Court is not going to last. However, a lot of attention was attracted to the case of Glossip vs. Gross. The case had to deal with the legality of midazolam used in lethal injections. Although most judges ruled in the affirmative, Justice Breyer dissented, which provoked discussion about the constitutional defects of the death sentence and provided a blueprint for future decisions of the Court (Beard, 2012).
As far as the current trends are concerned, the three constitutional defects continue to be widely discussed (Baum, 2015):
- the administration of the death penalty is viewed as unreliable;
- the application of this punishment is arbitrary;
- long delays of execution question the ability of the death punishment to serve its retribution purpose.
Even the most conservative Judges admit that it is now highly possible that the time for changes has come and the Court is likely to rule the death sentence unconstitutional and abolish it. The tendency was largely influenced by the speech of Pope Francis, in which he called for the abolition of the death penalty across the globe. Barack Obama, who generally sides with proponents of capital punishment, has demonstrated that his position has been changed (Baum, 2015). However, with the election of Donald Trump, the role of the Eighth Amendment may be considerably diminished.
References
Baum, L. (2015). The Supreme Court. Washington, DC: CQ Press.
Beard, C. A. (2012). The Supreme Court and the Constitution. North Chelmsford, MA: Courier Corporation.
Epstein, L., Segal, J. A., Spaeth, H. J., & Walker, T. G. (2015). The Supreme Court Compendium: Data, decisions, and developments. Washington, DC: CQ Press.
Hansford, T. G., & Spriggs, J. F. (2006). The politics of precedent on the US Supreme Court. Princeton, NJ: Princeton University Press.
McCloskey, R. G., & Levinson, S. (2016). The American Supreme Court. Chicago, IL: University of Chicago Press.
Scheiber, H. N. (2007). Earl Warren and the Warren Court: the legacy in American and foreign law. Lanham, MD: Lexington Books.
Toobin, J. (2008). The nine: Inside the secret world of the Supreme Court. New York, NY: Anchor.
Williams, C., & Hawke, C. (2010). Supreme Court review. Social Education, 74(5), 243-246.