15 Million Sterilizations to American Purity: The Past, Present, and Future of Buck v. Bell

Abstract

In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that 15 million sterilizations over the next 65 years would be necessary to protect the purity of the American people. While he would not realize this goal, he would play an active role in the passage of laws permitting sterilization and in the Court-sanctioned sterilization of over 60,000 “feeble-minded” people before the mid-1960s. This paper will examine the Supreme Court case Buck v. Bell (1927), one of the cases that made these sterilizations possible, and will focus on the circumstances under which such a case was allowed to proceed, some of the reasons why the Court’s decision in Buck has remained good law, and the possible implications of judicial restraint in the face of others’ inaction.

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In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that the purity of the American people was dependent upon 15 million sterilizations over the next 65 years (Lombardo 47). Those with “all manner of congenital defect…from the simply backward boy or girl…to the profound idiot” should be prevented from destroying humanity (Lombardo 15). It was only eleven years later in Buck v. Bell that the Supreme Court expressed the constitutionality of this sentiment, a decision that was never overturned. This paper will explore the political and judicial environment and implications of this blemish on the American present.

It is necessary to note that understanding Buck v. Bell solely in the context of race, gender, or class would be inaccurate because the central legal question was not equal protection. Even so, there were disparate implications for Black, Native American, and Puerto Rican people (Oberman 376-7, Lombardo 248). Feeble-minded women were targeted for their abnormal sex drives (Goldstein 3, 6), and Carrie Buck, the plaintiff, was called part of the “shiftless, ignorant, and worthless class of antisocial whites of the South,” a denigration of her social standing (Lombardo 138, 248). Among the lasting takeaways of the case, therefore, should be the potential ultimate impact of normalizing widespread prejudice in society.

Eugenic philosophy began to gain popularity long before Buck v. Bell. Gregor Mendel’s work on genetics was rediscovered in 1900, providing scientific proof for hereditary traits. Some scientists extrapolated from Mendel’s research that intellect and degeneracy were also passed down. The results of the military’s Binet-Simon intelligence testing around the same time period concluded that ‘degeneracy’ was increasing (Thompson 130). These developments shifted eugenics from promoting the procreation of the ‘strong’ to advocating for sterilization in the feeble-minded as a preventative measure. Nobel prize-winning geneticists, major university presidents, and Presidents Roosevelt, Taft, Wilson, and Coolidge all believed in eugenics (Larson 123). In 1882, clear support for purifying the population was seen through immigration restrictions, and, in 1921, post-World War I xenophobia led to strict quotas (Cynkar 1432). The primary social movements advocated for ‘cleaning’ the population; the Purity Crusade aimed to decrease promiscuity, the Social Hygiene movement emphasized science as a drive for legal reform, and progressivist ideas such as efficiency in government via delegation to private experts promoted science (Lombardo 15-17). Although it is unclear whether sterilization itself was popular – despite the widespread use of these laws, multiple states, such as Oregon in 1913, at least attempted to repeal sterilization statutes by popular referendum. Even without a broad consensus, the law reflected the vocal lobbyists from these social movements rather than the opinions of the general populace (Oberman 359, 368).

The obvious criticisms arose in response to eugenics. Scientists expressed disagreement with using Mendelian genetics as justification for policies like sterilization (Lombardo 52-54). Others criticized the legislation, citing a lack of clear criteria for feeble-mindedness, insufficient scientific evidence, and the evident potential for unfair application of the law (Lombardo 53). Even so, prohibitions on marriage between the feeble-minded and others were passed around the country.

The sterilization laws initially applied only to felons and were put into practice before receiving legislative approval (Lombardo 21). In a Kansas institution, before sterilization was legalized, a doctor performed castrations in an institution for the Feebleminded (Cynkar 1432). Similarly, in Indiana, a doctor performed vasectomies on several hundred prisoners to test the effectiveness of a new procedure (Lombardo 24). The success of these initial ‘safer’ vasectomies led to the legalization of sterilization in Indiana in 1907, the first such law in the United States (Cynkar 1433).

Soon after, sterilization was proposed in numerous other states. In Oregon (1909), Vermont (1913), Nebraska (1913), Idaho (1919), and twice in Pennsylvania (1905/1921), sterilization legislation was vetoed (Lombardo 316). It was successful in South Dakota (1917), North Carolina (1919), Alabama (1919), Montana (1923), Delaware (1923), and New York (1912, repealed in 1920) (Lombardo 316). Although 23 states had passed at least one sterilization law by 1925, there had also been multiple judicial challenges. In Michigan (Haynes v. Lapeer Circuit Judge in 1918), New Jersey (Smith v. Board of Examiners of Feeble-Minded in 1913), and New York (Osborn v. Thomson in 1918), sterilization laws were found to violate the Equal Protection clause of the Fourteenth Amendment because it applied to only those in institutions. Indiana (Williams v. Smith in 1921) and Oregon (State Board of Eugenics v. Cline in 1921) both found that their laws’ mandated hearings were insufficient for due process. In Nevada, Mickle v. Henrichs in 1918 found a sterilization of criminals law cruel and unusual. In contrast, a 1912 case in Washington, State v. Feilen found that sterilization by vasectomy, as applied to statutory rapists and habitual criminals, was not cruel and unusual (State v. Feilen 6). The Court claimed that, since the death penalty could be imposed on convicted rapists, anything less than death was not a cruel and unusual punishment (Feilen 7). This analysis would be seen again in Buck v. Bell, more than ten years later.

The Supreme Court did briefly see a challenge to Iowa’s sterilization law in Berry v. Davis (1917) but did not need to answer the question of constitutionality. Injunctive relief had become superfluous by the time of the ruling because the act had been amended to no longer apply to the plaintiff. In the Supreme Court, the more substantive challenge to the constitutionality of compulsory sterilization, Buck v. Bell (1927), focused on a Virginia law with a violent history.

The first law proposed by Virginia’s eugenicists, though, was aimed at resolving the overcrowding of mental institutions by proposing colonies for the feebleminded (Lombardo 13). A 1912 law authorized admission of feebleminded women to the first such colony (Lombardo 18-19). In 1916, the law expanded to permit physicians to use their discretion in providing any necessary safe surgeries for the members of the Colony – the feebleminded could not effectively ‘consent’ to medical procedures, so decisions would need to be made on their behalf (Lombardo 60). Dr. Albert Priddy, also implicated in Buck, interpreted ‘surgery’ to mean sterilization procedures (Lombardo 61). By 1917, 50 sterilizations had occurred in Virginia under the guise of ‘pelvic disease’ operations and appendectomies (Lombardo 64). Priddy, however, had not been following legal procedure in committing members to the Colony. One family, the Mallorys, took advantage of his haphazard approach to paperwork and sued in 1917. The outcome of the case saw the non-consensual sterilization of one member of the family justified as a medical emergency (Lombardo 77), but the oldest child was ordered to be freed and a Juvenile Court ordered all the younger children to be brought out of the Colony by writ of habeas corpus (Lombardo 71, 76). The court proceedings had little impact on anyone outside of the Mallory family, though.

The final Virginia law, the Eugenical Sterilization Act (1924) indicated that under careful safeguard and by competent authority, vasectomies and salpingectomies could be performed on the feebleminded. Provisions for due process were included, such as the right to a lawyer and an appeal, a right to notification of an appointed or legal guardian, and a board hearing (Lombardo 98-99). The passage of this legislation was underplayed by news outlets and unnoticed by civilians throughout the state, in part due to the widespread nativism and racism after WWI (Cynkar 1436). The Virginia law was also not exceptional – ten other states already had active sterilization statutes (Lombardo 98).

After Mallory, Priddy was unprepared to begin sterilizations under the 1924 law without assurance. He, along with others on the sterilization approval Board, planned to build a test case that would go to the Supreme Court (Lombardo 101-102). The first step was creating a plaintiff. Carrie Buck was a 17-year old committed to the Colony by her foster parents due to her feeble-mindedness and promiscuity – she had an ‘illegitimate’ daughter. She had no relatives other than her mother, who was also institutionalized, and no friends, making her an easy target (Berns 765).

As a result, the case was not meant to be fair. Her appointed attorney was Irving Whitehead, who was on the Colony Board, the Colony payroll, and attended Colony Board meetings throughout the case (Oberman 366). He brought no witnesses, didn’t ask any useful questions, made arguments for the other side, and ignored blatantly inaccurate statements about Buck (Lombardo 135, 139). It was said afterwards that “Priddy had two attorneys and Carrie had none” (Oberman 366). Most of the witnesses who testified on her feeblemindedness had never met Buck (Lombardo 138). Later in life, she was described as an ‘avid reader’ and a ‘lucid conversationalist’, making their testimonies not only uninformed, but also likely inaccurate (Thompson 147). These witnesses led the Court to conclude that Buck was the “probable potential parent of socially inadequate offspring” (Berns 765). This vague, inconclusive statement that criticized Buck for actions yet to be taken or proven was quoted in the Buck decision. Carrie Buck’s ‘socially inadequate offspring’, Vivian Buck, who died at 8 of ‘enteric colitis’, was declared feebleminded at 7 months, but was later described as “very bright” by teachers at her school (Thompson 148). Even the circumstances of Buck’s commitment had been very questionable – she was pushed into the Colony by her foster parents, possibly because of her instance that her pregnancy was a result of a rape, committed by her foster cousin and punishable by death at the time (Lombardo 139, 140). Her appointed guardian consented to bringing suit against the colony administration on her behalf, so Buck was barely involved in her own case. It is unclear whether she ever even received the Virginia Supreme Court decision (Lombardo 154), and she only found out years later that the appendectomy she had endured had actually been a salpingectomy, a fact cited at trial (Goldstein 5).

The decision in Buck v. Bell (1927) was an 8 to 1 decision written by Justice Oliver W. Holmes, Jr. In his opinion, Holmes dealt with the major issues raised by state courts. He determined that the extensive hearing requirements in Virginia’s Eugenical Sterilization Act were sufficient for due process and that equal protection was not violated because those currently in the Colony would be released after sterilization and replaced, so everyone had the potential to be affected by the law. With regards to equal protection, he left the reasonability of class judgment to the legislature (Cynkar 1440). Holmes also argued that sterilization was not anymore unreasonable or inhumane than the draft or compulsory vaccinations, ruled constitutional in Jacobson v. Massachusetts (1905). Jacobson, the only precedent cited by Holmes, held that the state had a vested interest in the public health of the community when faced with an increasing smallpox threat (Jacobson v. Massachusetts 22, 27). There was no reference to strict scrutiny in the Buck decision, which seemed to be an oversight considering Lochner, a case that raised the question of whether the “power of the State to legislate or the right of the individual to liberty of person” should prevail in such cases (Berns 766-7). Seven of the justices on the Court were at least slightly moved by eugenics, though, making it unsurprising that they did not find individual liberty to be a major consideration in Buck (Cynkar 1451).

Holmes’ final holding, that sterilization was reasonable, faces the most criticism. His comparison of sterilization to the draft is met by academics who state that “American government, and all non-tyrannical government, is based on the recognition that there are greater evils than death”[i] (Berns 762). The use of Jacobson also has some failings. The opinion in Jacobson found that it was up to the legislature to determine what was justified by the “necessities of the case”, specifying that the court should interfere if the law reaches beyond what is needed for the public welfare (Jacobson 12, 34-35). In Buck, it was easy to see that Carrie Buck was not ‘feeble-minded’ enough to require sterilization in the name of the public welfare – her only act against society at that point had been having a child out of wedlock – especially given the quality of the witnesses. The Jacobson decision also excluded those laws that lead to “injustice, oppression, or absurd consequence.” The inequities of application across gender or class could have allowed for the Court to find the opposite conclusion under the same precedent. Jacobson also offered an extensive analysis of the scientific basis behind vaccines in order to investigate the basis for concern over public welfare, while Holmes’ decision did not even address the scientific controversies. A closer and honest look at scientific literature of the time may have led Holmes to realize that eugenics posed a more significant threat to public welfare than did Carrie Buck. Holmes also seemed to ignore the most obvious distinction: “It is a broad principle indeed that sustains a needle’s prick in the arm and an abdominal incision…it becomes something else again in terms of the results attained: no smallpox in the one case and no children in the other” (Berns 764). If someone decided not to be vaccinated, the extent of the consequences was a five-dollar fine, which was considered in Jacobson (Cynkar 1458-9). There was no option not to be sterilized in Buck.

These oversights are not surprising given Holmes’ background. He was a prominent eugenicist who generally was compelled by science as a way to manipulate and speed up ‘natural’ progressions (Lombardo 164, Thompson 129). In a major public address, he proclaimed that he desired for science to ‘pass’ from the “combative to the dogmatic stage” and to gain “such catholic acceptance that it shall take control of life and condemn…with instant execution what now is left for nature to destroy” (Larson 124). He also subscribed to Malthusian population theories, arguing that assistance to the poor would lead to overpopulation and a fight over resources (Thompson 129). His commitment to judicial restraint on substantial due process questions could have led him to his opinion in Buck (Cynkar 1446). Holmes’ decisions, though, were often ruled by how well the policy silences unfit ideas. This perspective makes clear the alignment between his stance on free speech and this opinion in Buck, in that both contribute to the marketplace of ideas, one by allowing for debate to crowd out ‘inferior’ speech and the other by forcibly removing ‘stupidity’ (Berry 436).

Butler’s silent dissent on Buck has primarily been attributed to his religious motivations (Thompson 133). This idea was propagated by a letter sent by Holmes, in which he wrote that “Butler knows this is good law…I wonder whether he will…vote with us in spite of his religion” (Larson 125). While many Catholics were against eugenics, it was primarily Christian morality that drove the sanitation and sexual morality movements in support of eugenic policies (Lombardo 46). For instance, Evangelist Billy Sunday gave a widely-attended talk in Manhattan on how he was “tired” of emphasis given to personal liberties in the face of more compelling public interests (“35000 Hear Sunday”). When considering Butler’s motivations in a broader context, then, it is more likely that Butler was compelled by his consistent belief in morality of a law as a necessary consideration of Court decision-making and his commitment to individual freedom and due process (Thompson 138). His acute foresight, however silent, was reflected by the Virginia statute’s eventual repeal in 1974.

Other than Buck v. Bell, there were several opportunities for the Court to take a different stance. The National Council of Catholic Men convinced Whitehead to bring a rehearing via petition, but Whitehead edited the agreed-upon documentation before submission to avoid the possibility that the Court may give it serious consideration. The rehearing came to nothing (Lombardo 179). Two years prior to Buck, Smith v. Command (1925) in Michigan considered a right to bodily integrity (Lombardo 181). In the case, a ‘feebleminded’ 16-year-old sued to contest a court’s order that he be sterilized, a directive issued with his parents’ consent. In its decision, the Michigan Supreme Court added to Buck, writing that the “right to beget children is a…constitutional right,” but that this was overwhelmed by the public welfare (Smith v. Command 142). Ultimately, the order, not the statute, was vacated because statutory due process protections were not followed. Four justices wrote that eugenic theory was not compelling or that sterilization violated ‘bodily integrity’ (Smith 146, 148). The dissent contended that the statute violated equal protection because “Feeble-mindedness…exempts the rich and sterilizes the poor. This is class legislation” (Smith 150-151). Two years before Holmes wrote his decision in Buck, many criticisms of his legal justifications had already been articulated.

Skinner v. Oklahoma (1942) still serves as the only direct Supreme Court test of Buck[ii]. The Oklahoma law ordered compulsory sterilizations of habitual criminals but exempted certain crimes. Considering some of the same issues as Buck, the Court unanimously declared the law unconstitutional. Even so, each opinion refused the opportunity to overturn Buck. Justice Douglas wrote the majority opinion based on an Equal Protection violation, finding that the exemption of some types of crimes was arbitrary (Skinner v. Oklahoma 538-539). He also continued to define marriage and procreation as basic civil rights (Skinner 541). Although Justice Stone’s concurrence went further in its skepticism towards the science behind eugenics, both opinions cited Buck as an appropriate foreclosure on the right of procreation (Skinner 545). Justice Jackson added to both, arguing that “there are limits to the extent to which a…majority may conduct biological experiments at the expense of…a minority…But this Act falls down before reaching this problem…On it, I would also reserve judgment” (Skinner 546-547).

Skinner could have been an opportunity to set aside the trivial equal protection violation (“Constitutionality” 1386). The Oklahoma law had punitive characteristics, so the Court could have evaluated whether sterilization was cruel and unusual (“Constitutionality” 1385). Or, they may have determined whether procedural due process and non-speculative evidence was available when analyzing whether someone’s unborn child would be a criminal (“Constitutionality” 1386). There was also an opportunity to consider the fundamental right to have children or the race, class, or gender based use of sterilization (“Constitutionality” 1387).

Thirty years later, in Cook v. Oregon (1972), the Court ruled that the State had a sufficiently compelling interest in continuing sterilization policies to survive strict scrutiny. Legislatures were preventing murderers, perverts, pyromaniacs, and thieves from plaguing future generations (Leslie-Miller 134). In Stump v. Sparkman (1978), a mother authorized her ‘somewhat retarded’ daughter’s sterilization without informing the patient. The Supreme Court was only able to consider whether the judge who authorized the procedure, despite having approved the petition in error, was granted immunity. Finally, in 1981, Poe v. Lynchburg Training School & Hospital was heard in the US District Court for the Western District of Virginia. The American Civil Liberties Union (ACLU) brought a class action suit challenging the Eugenical Sterilization Act. Many who had been sterilized under the law had never been informed of the procedure and its ramifications (Poe v. Lynchburg Training School & Hospital 792). No monetary damages were requested, although they did demand that sterilizations be ruled unconstitutional (Lombardo 251). The Court determined that the constitutionality of the statute was decided by Buck (Poe 792). The ACLU ultimately settled the case in exchange for a brief and underwhelming educational campaign (Lombardo 254).

While Buck had been decided amidst public support, many later cases went against public consensus. By the 1970s, most Americans were aware of the German eugenics campaign and recognized its similarities to state policies. Early in the Nazi regime, an innocent scientific collaboration with Germany was a source of pride for American eugenicists (“English Attack”, Lombardo 209). The Chief of the Eugenics Research Association even wrote that anti-Nazi propaganda was obscuring the brilliance of their eugenics policy. He warned that “the future will incontestably prove which nations have been the wiser” (Berns 773). As the Holocaust progressed, however, Americans recognized that “in Germany, it was ein Reich, ein Volk, ein Führer, in America Johnson and Popenoe were calling for an ‘Aristo-democracy’. The difference may [have] be[en] one of terminology only” (Berns 774). A smaller international influence was the spread of eugenic ideas to Canada. Alberta and British Columbia passed sterilization acts for inmates about to be discharged, causing over 500 cases to be brought and settled (Lombardo 265).

The legacy of Buck extends to the current political . In Roe v. Wade (1973), the inclusion of marriage and procreation in the right to privacy explicitly excluded the privacy violations ruled on in Buck and Jacobson. Arkansas still permits for involuntary sterilization of incompetents, and as recently as 2007, compulsory sterilization bills have been proposed (Lombardo 275-276). In 2001, the 8th Circuit Court of Appeals ruled coerced sterilization of a disabled woman in Missouri constitutional, citing Buck (Goldstein 6). From 2010 to 2015 in Tennessee, sterilization was used to bargain in plea deals with female defendants, and from the 1990s to 2010 in California, hundreds of female prisoners were sterilized without state approval (Goldstein 1).

Post-Buck, the South had only just begun to pass sterilization legislation. Opposition from religious groups and the popular belief in the cohesive family unit had prevented passage, but with the lobbying momentum from Buck, bills passed (Fletcher 1). Ultimately, the politics driving eugenics led to racist and classist practices in the Deep South such as the Mississippi Appendectomies, leading many women to be sterilized against their will and without their knowledge.

This fight over what may constitute the public welfare that started with Buck may extend into today with the potential for genetic testing in prenatal care and egg selection in the oocyte market (Oberman 383-387). Even if these technologies become the ‘new eugenic sterilization’, it is important to remember that they will not raise the same question of the extent to which liberty includes bodily autonomy from law. They may relate to the right to procreation, but the right of government to regulate selection processes in the oocyte market, for example, may prevent unequal implications like race-based selection rather than enabling them.

By 1938, over 27,000 compulsory sterilizations had been performed in the United States (Thompson 131). By the mid-1960s, not accounting for American contributions to Nazi eugenics policy, this had risen to over 60,000 (Thompson 143). Judicial restraint in Buck v. Bell may have been the most active kind of inaction, making restraint almost illusory. Holmes appeared suspiciously like an activist when he wrote later that he “was getting near to the first principle of real reform” by upholding a state law to sterilize ‘imbeciles’ in Buck (Berry 437). It is easy to argue that Holmes was only using restraint, and that this blemish on the American present “rests more with inept or corrupt counsel…in a set-up case involving a patient who should not have been subject to the procedure under the science of the day, than the Court that followed their lead” (Larson 128). But this begs a question larger than Buck of the Justices in whose intellect we vest the interpretation of our basic political rights: If challenging inept and corrupt counsel is not the responsibility of the Court, even when they are given multiple chances to rule in favor of the Constitution, then on whose shoulders will preventing these casualties fall on when we are faced with a similar challenge again?

[i] More succinctly, “Give me liberty, or give me death!”

[ii] Loving v. VA, although often cited when discussing Buck, was decided via a question of Equal Protection, inapplicable to Buck.

Bibliography

  1.  “35000 Hear Sunday Talk to Men Only”. New York Times, 30 Apr. 1917. Web.
  2. Berns, Walter. “Buck v. Bell: Due Process of Law?” The Western Political Quarterly 6.4 (1953): 762-75. Web.
  3. Berry, Roberta M. “From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck v. Bell.” Notre Dame Journal of Law, Ethics & Public Policy 12.2 (1998): 401-448.
  4. Berry v. Davis. 242 U.S. 468. U.S. Supreme Court. 1917. Rpt. by Justia. Web.
  5. Buck v. Bell. 274 U.S. 200. U.S. Supreme Court. 1927. Rpt. by Justia. Web.
  6. “Constitutionality of State Laws Providing Sterilization for Habitual Criminals.” The Yale Law Journal 51, no. 8 (1942): pp. 1380–1387.
  7. Cynkar, Robert J. “Buck v. Bell: ‘Felt Necessities’ v. Fundamental Values?” Columbia Law Review 81, no. 7 (1981): pp. 1418–1461.
  8. “English Attack on Our Eugenics”. New York Times, 9 Nov. 1913. Web.
  9. Fletcher, John C. “Book Review — Sex, Race, and Science: Eugenics in the Deep South.” New England Journal of Medicine. N.p., n.d. Web. 20 Apr. 2017.
  10. Goldstein, Dana. “Sterilization’s Cruel Inheritance.” New Republic. N.p., 04 Mar. 2016. Web. 20 Apr. 2017.
  11. Gould, Stephen Jay. “Carrie Buck’s Daughter.” Natural History July 1984: n. pag. Print.
  12. Jacobson v. Massachusetts. 197 U.S. 11. U.S. Supreme Court. 1905. Rpt. by Justia. Web.
  13. Larson, Edward J. “Putting Buck v. Bell in Scientific and Historical Context: A Response to Victoria Nourse.” Pepperdine Law Review 39.1 (2011): 119-128.
  14. Leslie-Miller, Jana. “From Bell to Bell – Responsible Reproduction in the Twentieth Century.” Maryland Journal of Contemporary Legal Issues 8.2 (1997): 123-150.
  15. Lombardo, Paul A. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins UP, 2010. Print.
  16. Oberman, Michelle. “Thirteen Ways of Looking at Buck v. Bell: Thoughts Occasioned by Paul Lombardo’s ‘Three Generations, No Imbeciles.’” Journal of Legal Education 59, no. 3 (2010): pp. 357–392.
  17. Poe v. Lynchburg Training School and Hospital. 518 F. Supp. 789. US District Court for the Western District of Virginia. 1981. Rpt. by Justia. Web.
  18. S. L. “Constitutional Law. Eugenical Sterilization Statutes.” Virginia Law Review 12, no. 5 (1926): pp. 419–422.
  19. Skinner v. Oklahoma. 316 U.S. 535. U.S. Supreme Court. 1942. Rpt. by Justia. Web.
  20. Smith v. Command. 231 Mich. 409. Supreme Court of Michigan. 1925. Web.
  21. State v. Feilen. 70 Wash. 65. Supreme Court of Washington. 1912. Web.
  22. Stump v. Sparkman. 435 U.S. 349. U.S. Supreme Court. 1978. Rpt. by Justia. Web.
  23. Thompson, Phillip. “Silent Protest: A Catholic Justice Dissents in Buck v. Bell.” Catholic Lawyer 43.1 (2004): 125-148.
  24. “Upholds Operating on Feeble-Minded”. New York Times, 3 May. 1927. Web.

Cruel and Unusual History: Exploring the Case Law that Shaped the Eighth Amendment

The American judicial system ensures the continuation of democracy. But the democracy of the American judicial system is entirely dependent on the civil liberties housed in the Bill of Rights. Within the Bill of Rights are special protections for everyone involved in the judicial system, included those who are criminally accused. Everyone is entitled to the right not to incriminate oneself (Fifth Amendment), the right to a fair, speedy public trial and to counsel (Sixth Amendment), the right to be protected from cruel and unusual punishment (Eighth Amendment), and the right to due process (Fourteenth Amendment). The Eighth Amendment is perhaps the most enigmatic clause in the Constitution. This paper will explore how the court interprets such an ambiguous clause and how this has developed over time, specifically exploring its application to capital punishment and to a much lesser extent torture.

In order to analyze how the Eighth Amendment has changed over time, it is necessary to examine the amendment itself. The entirety of the Eighth Amendment reads as such: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] For the purposes of this paper, only the segment  “nor cruel and unusual punishments inflicted” will be examined. The Eighth Amendment on its face is incredibly vague. It contains no definition for “cruel and unusual”, nor any procedure for determining what is and is not “cruel and unusual.” While this is not atypical for constitutional amendments, it is particularly troublesome in the case of the Eighth Amendment because it is not explicitly clear the extent to which the phrase should be interpreted. Torture, for instance, falls into this gray area. Historical context suggests that torture (as an interrogation method, not specifically as a punishment) was considered “cruel and unusual,” but this intention is not necessarily enough to determine if torture is explicitly incompatible with the Eighth Amendment.[ii] Torture was certainly practiced in the U.S. after the enactment of the Eighth Amendment, so even if there was historical context to suggest the Framers intended to outlaw torture, the reality and the lack of enforcement of this clause establishes an alternate precedent. Capital punishment is another issue under the Eighth Amendment. However, more clearly, all evidence suggests that capital punishment was never meant to be outlawed by the Eighth Amendment. But this leads to the question, if executing a criminal is not “cruel and unusual,” what is? Torture and capital punishment are two of the most glaring examples of “cruel and unusual” punishments to a modern reader that were permitted by the constitution and case law for an extended period of time.

For the purposes of this paper, torture and capital punishment must be briefly defined. Torture is the infliction of pain either as a punishment or an interrogative method. While the two are obviously linked, they are legally separate and governed by different laws and precedents. Torture as an interrogative method is governed by the Fifth Amendment, which secures the right to due process and a fair trial. Under the right to a fair trial comes legal procedures for what is constitutional in regards to interrogation; torture as an interrogative method will not be explored in this paper as it does not pertain to the Eighth Amendment. Capital punishment is the government sanctioned execution of a criminal as punishment for their crime. The death penalty is a sentence given by either a judge or a jury after a trial. The method of execution has evolved over time, but it is currently lethal injection. The humaneness and legality of the specific forms of execution will be examined only when pertinent to the development of the “cruel and unusual” clause.

Until Wilkerson v. Utah (1878), there was no case law precedent for the interpretation of “cruel and unusual punishment.” In 1877, Wallace Wilkerson shot and killed William Baxter. He was tried for premeditated murder in a Utah criminal court. Wilkerson was sentenced to death; a Utah statute (passed in 1862) allowed for anyone sentenced to be executed to choose to be shot, hanged, or beheaded. Wilkerson chose to be shot. The case was then appealed on a writ of error to the Supreme Court (as Utah was a territory at the time and its authority not yet clearly defined), who upheld that no error had been made and that Wilkerson’s death sentence and mode of death were constitutional. Justice Nathan Clifford delivered the opinion of the court, in which he explicitly stated “it is safe to affirm that punishments of torture…and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth] amendment to the Constitution.”[iii] This establishes a strong precedent for the application Eighth Amendment. The court is clear in stating that torture and any punishment like it violates the Eighth Amendment. While establishing some type of definition, Clifford still concedes that it is extremely difficult to “define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted.”[iv] The court does not offer a clear guideline for how to determine if something is “cruel and unusual,”, but rather admit that because it is impossible because the framers intent cannot be fully determined. Still, they establish that torture as a punishment violates the amendment., but reaffirm that capital punishment does not. Clifford also expressly states that death by shooting “is not included in that category within the meaning of the Eighth Amendment.”[v] In doing so, he references the “unusual” aspect of the Eighth Amendment. Clifford argues that because shooting is a common form of execution for military crimes, it is therefore not an unusual punishment under the Eighth Amendment.[vi] The usualness of a punishment is rarely dealt with under the Eighth Amendment (as methods of execution are typically highly regulated), but Wilkerson lays out a precedent for evaluating it. The commonality of a type of execution therefore determines whether or not it is “unusual”, but this is not without problems of its own. There is not strict guideline for determining commonality besides opinion. Wilkerson may have started to tackle the various issues of the Eighth Amendment, but it is not without its own hypocrisy. As pointed out by Gilbert King in an op-ed for the New York Times, Wilkerson’s death was ironic in light of the precedent his case established. The firing squad did not instantly kill Wilkerson; instead, he slowly bled out over a half hour.[vii] At this time, there was no precedent for whether a prolonged death constituted “cruel and unusual,” but it would more than likely be considered torture.

The issue of prolonged death was quickly remedied in 1890, with the case of In Re Kemmler. William Kemmler was convicted of first degree murder and sentenced to death by electric chair, the first New York citizen to be executed in such a manner. His attorney filed an emergency writ of habeas corpus to stay the execution to examine what he believed to be violations to the Eighth and Fourteenth Amendments. The case traveled through the New York Court of Appeals, after which it was appealed to the Supreme Court on a writ of error. In the opinion, written by Chief Justice Fuller, the court goes into detail about why the state of New York choose electrocution as a method of execution, citing state legislation that found electrocution to be the most humane form of execution. In exploring the idea of a human execution, the court gives a firmer definition of “cruel and unusual”, stating:

“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,-something more than the mere extinguishment of life. The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of the common knowledge which has stamped certain punishments as such”[viii]

This establishes a baseline definition for the term “cruel.” Firstly, the court explicitly states that both torture and lingering death are cruel. The court also sets an important precedent for determining if a punishment is cruel or not. If a punishment can be deemed either “inhumane” or “barbarous” or has a motive that is “something more than the mere extinguishment of life,” then it is cruel. This reiterates the justification for the electric chair being found not cruel, as the court referenced extensive research done that proved its humaneness. The definition of “cruel” is limited in the sense that it in large part deals with capital punishment, due to the phrase “extinguishment of life.” It is also further limited by the adjectives “inhumane” and “barbarous” which, like “cruel”, lack a clear legal definition. Despite declaring torture a form of punishment and developing a cruelty test, the court fails to specifically define “cruel” outside of its relationship to capital punishment. Dealing specifically with capital punishment, the court declares that it does not fit the Constitution’s definition of “cruel.” The court clarifies the Constitution’s meaning of “cruel” as an implication of “something inhumane and barbarous.” This is limited only in the context of capital punishment, being once again limited as beyond “the mere extinguishing of life.” Nor does the court deal with the issue of “unusual”, even though this was the first death by electric chair in the state, making it unusual by definition. Instead, they imply that its humaneness outweighs its unusualness. This, therefore, defines “unusual” as being inhumane. However, as aforementioned, the court rarely deals with “unusual”, and this precedent is barely relied upon. In Re Kemmler marks a landmark in the interpretation of the Eighth Amendment by codifying capital punishment as not “cruel,” and in a limited sense outlawing torture as a form of punishment.

While Wilkerson and Kemmler attempted to set some restrictions on the Eighth Amendment, Weems v. United States used a different method. Instead of attempting to find a universal definition for “cruel and unusual,” the court in Weems embraced the ambiguity of the clause and tried to find a universal approach. In 1910, Paul Weems, who worked for the Bureau of the Coast Guard and Transportation for the United States government in the Philippines, manipulated the cash book by changing employees’ wages so he could profit. He was convicted of fraud and the falsification of public documents in a court in the Philippines. He was sentenced to:

“fifteen years of [shackles], together with the accessories of section 56 of the Penal Code, and to pay affine of 4,000 pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to pay the costs of this cause.”[ix]

Also in his sentence was hard labor.[x] Weems appealed to the Supreme Court of the Philippines, which held the conviction. He then appealed to the U.S. Supreme Court on several questions, including whether or not fifteen years of imprisonment was “cruel and unusual” and if the extent of the sentence matched the crime. Justice McKenna delivered the court opinion and stated that past cases and applications of the “cruel and unusual” clause have either been in relation to “something inhuman and barbarous – torture and the like” or sentence proportionality with the crime.[xi] He also states that there has never been a case presented to the Supreme Court that demanded an exact definition.[xii] From this, McKenna explores a multitude of cases that previously grappled with the Eighth Amendment. He firstly points out that on its face the Philippine’s punishments violate the Bill of Rights “both in degree and kind,” and that the specific terms of Weems’ punishment (particularly the shackles and hard labor) constitute “cruel and unusual.”[xiii] By doing this, McKenna creates a new basis to explore the Eighth Amendment: public opinion, sentiments and standards. McKenna compared U.S. punishments to punishments in the Philippines and based on this standard ruled that they were cruel and unusual and therefore unconstitutional. As such, the court reversed Weems’ sentencing. McKenna’s opinion establishes a crucial precedent for the Eighth Amendment. In the opinion, he states that the Eighth Amendment “may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”[xiv] McKenna crafts a new vision of the Eighth Amendment, one where “cruel and unusual” is determined by public opinion and standards. While this does not invalidate the definitions for “cruel and unusual” established by Wilkerson and Kemmler, the creation of the public standard test solidifies the idea that there is no satisfactory universal definition for the Eighth Amendment.

The Weems precedent played a crucial role as the court grappled with developing the Eighth Amendment throughout the 1970s. McGautha v. California, Furman v. Georgia, and Gregg v. Georgia are three major Supreme Court cases between 1971 and 1976 that exemplified the Eighth Amendment’s contentious nature. In McGautha, two petitioners (one from California, petition No. 203 and one from Ohio, petition No. 204) were both convicted of first-degree murder. No. 203’s sentence was left to the jury and was determined in a separate trial after his conviction. This case was petitioned to the Supreme Court on a writ of certiorari on the grounds that No. 203’s death penalty was determined by the jury without standards, which he claimed was unconstitutional. No. 24’s case was also petitioned on a writ of certiorari because his sentencing and punishment determination were done at the same time (as opposed to bifurcated trials), where the jury once again had absolute control. The legal question for both cases was whether determining conviction and punishment in the same proceeding was constitutional. The court found no constitutional violations and held both convictions and penalties. Justice Harlan delivered the court opinion. He justified absolute jury discretion over punishment and the non-necessity of bifurcated trial.[xv] In his discussion of the petitioners’ claim that full jury discretion was unconstitutional, Harlan, based on historical English Common law, Supreme Court precedent, “and the present limitations of human knowledge, [found] it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”[xvi] McGautha expands on the issue of a lack of definition that the court referenced in Weems and takes it one step further, firmly acknowledging that there cannot be a universal definition. This was a departure from the court’s approach in Wilkerson and Kemmler. The court here is codifying that the “cruel and unusual” clause does not need to have strict legal standards, as opposed to attempting narrowing the phrase. Instead, the court establishes that the Eighth Amendment is to be interpreted on a (quite literally) case-by-case basis. As it originally stood in the Constitution, “cruel and unusual” could develop a definition through case law (as seen with Wilkerson and In Re Kemmler). Now, however, the court essentially invalidates precedent by saying that past cases and “human knowledge” cannot create a universal definition or application for the Eighth Amendment. The court does not acknowledge how the individual cases will be determined, ignoring the Weems precedent. McGautha established that not only did there not need to be specific standards to sentencing someone to capital punishment, but there could not be.

McGautha was overturned one year later in Furman v. Georgia. Furman, like McGautha, was multiple cases combined, all of which were appealed to the Supreme Court on writs of certiorari. The first petitioner (Furman) was robbing a house during the night; after the homeowner awoke, Furman attempted to flee and in doing so either turned around and blindly fired his weapon or tripped and in doing so accidentally fired his weapon, but ultimately killing the homeowner. Both of these stories come from contradicting statements from Furman during his trial. He was convicted of felony robbery and murder and subsequently sentenced to death. The second case, Jackson v. Georgia, involved the petitioner (Lucious Jackson Petr Jr.) attempting to rob a home. He threatened the woman of the house with a pair of scissors, and upon the discovery that there was no money for him to steal, he raped her. He was convicted of felony robbery and rape and sentenced to death. In the last case, Branch v. Texas, Elmer Branch broke into a home, raped the woman who lived there, took the money from her wallet, and fled. He was tried and convicted for rape and sentenced to death. All three petitioners (who, it should be noted, were all African American males) petitioned on the question of whether or not the death penalty violated the “cruel and unusual” clause of the Eighth Amendment. In a per-curiam opinion (again, one year after McGautha), the court stated that, for these three cases, the death penalty violated the Eighth Amendment because of the lack of clear standards and reversed all the decisions. The case was decided by a 5-4 opinion with every single judge writing an opinion. Most of the concurring opinions (no judge joined on another opinion so they all stand individually) use strict scrutiny  to examine the cases before them. Several of the concurring opinions mention the apparent racism in the decisions.[xvii] Both Justices Brennan and Marshall conclude in their concurring opinions that capital punishment on its face is unconstitutional.[xviii] Stewart, however, insists that the decisions must be taken in context within their state’s constitution and precedent (he points out that neither Georgia or Texas have stated that death is the automatic punishment for murder or rape), in order to understand and determine the extent of the seemingly arbitrary nature of the decisions (why were these defendants sentenced to death, but not others who committed the same crimes in the same states?).[xix] He then uses this to argue for the “cruelty” of the punishments, as “they excessively go beyond, not in degrees but in kind, the punishments that the State legislatures have determined to be necessary.”[xx] This establishes a precedent for structure in applying the Eighth Amendment, directly overturning McGautha. The court is now expressing a direct need for some guidelines to govern the application of the death penalty so that it does not constitute Stewart’s definition of “cruel.” From Furman, the court equates “cruel” with arbitrary. The death penalty is determined constitutional only as long as it follows a framework of structure and guidelines for application, which the court could not determine. Since the court never established these guidelines, all capital punishment sentences in the U.S. after Furman were changed to life sentences, until the states and Congress developed new specific legislative guidelines. From 1972 to 1976, no death penalties were carried out in the U.S. because of this de facto moratorium as the court never reaffirmed the constitutionality of the death penalty under specific guidelines.

The impact of Furman goes beyond this halting of executions. In order to truly understand the impact of Furman and explore the evolution of the Eighth Amendment, the varying opinions must be closely examined. Examining the analytical approach of the opinions in Furman illustrate two different ways to understand the Eighth Amendment. Douglas, Stewart, and White argue for an analytic approach, based on how the death penalty is applied and its social consequences.[xxi] The discussion of racial bias and state precedent would fall under the analytical approach. The second approach appears in Justice Marshall’s opinion. Marshall continues the precedent set by Weems and hones the normative approach.[xxii] In his opinion, Marshall asks the question of “whether capital punishment is ‘a punishment no longer consistent with our own self-respect’ and, therefore, violative of the Eighth Amendment.”[xxiii] He reasserts that the Eighth Amendment was intended to “outlaw torture and other cruel punishments” but argues that the application of the clause must be determined by present societal standards.[xxiv] Marshall limits this, however, by qualifying the punishments that can be considered constitutional under public opinion. Punishments of torture, he says, will always be outlawed by the Eighth Amendment, even if public opinion were ever to say they were acceptable.[xxv] This lays the foundation for his exploration of capital punishment as an excessive punishment (excessive punishment in this case is equal to “cruel and unusual”) according to modern standards, arguing that it is therefore unconstitutional. He concludes that it is based on modern concepts of retribution, deterrence, prevention, and “encouraging guilty pleas and confessions, eugenics, and reducing state expenditures” (these last three he deals with together).[xxvi] He also recognizes a lack of national understanding of capital punishment and the effect that lack of knowledge has on societal opinion. Marshall’s opinion revitalizes and reinvigorates the Eighth Amendment. He establishes a clear and concise test to determine what constitutes “cruel and unusual.” He embraces the ambiguity of the Eighth Amendment and develops a solution that gives it some clarity.

Marshall’s test had a major effect on the follow up case to Furman, Gregg v. Georgia. In 1976, five cases were decided by the Supreme Court that reaffirmed the constitutionality of the death penalty. Instead of delving into the factual details of these cases, just the procedural posture will be examined. Georgia, Florida, Texas, North Carolina, and Louisiana (listed in this format to reflect the order of the full case name), all changed their statutes and legislation to establish strict guidelines for the sentencing of the death penalty in compliance with Furman. Changes included the necessity of a bifurcated trial and specific guidelines for determining if a case is eligible to receive the death penalty. For each petitioners’ case, they were tried and sentenced to death as complying with the new guidelines of their state. They all appealed on the grounds that capital punishment violated the Eighth Amendment on writs of certiorari. In a 7-2 decision, the Supreme Court maintained the death sentences of the petitioners from Georgia, Texas, and Florida, because their state guidelines for deciding capital punishment were constitutional. The decisions for North Carolina and Louisiana were reversed on the grounds that their state legislations were constitutionally insufficient. The plurality opinion, written by Stewart, establishes several major rules for the Eighth Amendment. Firstly, the Supreme Court officially codified capital punishment as constitutional.[xxvii] Stewart additionally gives another definition of the Eighth Amendment, stating:

“The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is ‘excessive’ either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime.”[xxviii]

This definition of the Eight Amendment echoes Kemmler. Stewart expands on this precedent, however, by referring to punishments under the Eighth Amendment in general, instead of in direct relation to capital punishment like in Kemmler. He also crucially links proportionality to the Eighth Amendment, which was referenced in Weems and Furman but never firmly expressed.

Secondly, Stewart carries on the normative approach as established by Marshall in his Furman opinion. The “standard of decency” test echoes Marshall’s approach. However, Stewart provides no guidelines for how this standard should be reached. He also does not explain what the current standard of decency is or how the codifying of capital punishment fits into it. In Brennan’s dissenting opinion, he references Stewart’s “standard of decency” definition and argues that the modern and current standard of decency is that the death penalty be abolished.[xxix] Marshall, in his dissent, does this as well, referencing his Furman opinion where he argued for the unconstitutionality of the death penalty. He makes it clear that he is dissenting on the basis of the upholding of the death penalty, not the court’s methodology. Marshall’s argument focuses on what he believes to be inaccurate conclusions the majority reached in their opinion that justified capital punishment, such as retribution. Despite the contradictory conclusions reached by the majority and the two dissenting judges, Gregg represents the first successful application of the normative approach to the Eighth Amendment. Both the majority and the dissenting justices used this process to reach their conclusions. This marks a solid and definite change in the court’s interpretation of the Eighth Amendment: there can be no universal definition of the Eighth Amendment, but public opinion, standards and sentiments can be used to give it a definition on a strictly (and quite literally) case by case basis.

Gregg not only affirms the death penalty but also codifies how the death penalty should be determined. Stewart echoes Furman by stating that in order to curtail the seemingly arbitrary nature of the death penalty, there need to be statutes, and echoing Marshall and Weems by saying this should be done through public standard.[xxx] He establishes the constitutionality of the Georgia, Florida, and Texas statutes, therefore providing the guidelines for other States in the drafting of their legislation. He references the Georgia statute, emphasizing that there “must be specific jury [findings]as to the circumstance of the crime or the character of the defendant” in order to give the death penalty, as well as the necessity of State Supreme Court review.[xxxi] In his concurring opinion, White also crucially notes that prosecutors will be held to the same standards as a jury in deciding to charge a capital felony.[xxxii] Consequently, the Supreme Court ruling that the death penalty is constitutional within certain parameters lifted the implied ban on capital punishment from Furman. Gregg provided relief for the ambiguity created by Furman, allowing death penalties to continue in the U.S. Most importantly, Gregg established the basis for the death penalty, and created a background for following death penalty cases to be decided against. Subsequent capital punishment cases fleshed out, based on public opinion, certain specifics regarding the death penalty.

One example worth looking at is the death penalty as it relates to minors. Wilkins v. Missouri and Stanford v. Kentucky, decided together in 1989, set the precedent that it was not “cruel and unusual” to execute minors under the Eighth Amendment. The majority opinion, written by Justice Scalia, argued that the standard of decency was ambiguous about the execution of minors (ages 16 and 17 specifically), and therefore it must be left up to state legislation to determine constitutionality; both the cases presented were in states where there was legislation allowing the execution of minors.[xxxiii] This case came one year after Thompson v. Oklahoma, which decided that the execution of minors was unconstitutional.[xxxiv] In 2005, Roper v. Simmons reversed Wilkins and Stanford and reaffirmed Thompson. The court applied the standard of decency test to the same evidence (state legislation) and reached the opposite conclusion: that the execution of minors was in fact “cruel and unusual.”[xxxv] This back and forth in regards to the execution of minors reveals several things. Firstly, how amenable the Eighth Amendment remains even though it is limited by a test. Secondly, how the Marshall test works in context (how the justices prove “standard decency” and public opinion). Third, even this test, as empirical as it is, is incredibly flawed. It does not allow the Court to establish long term precedents; in order to maintain constitutionality, the Supreme Court would have to frequently review each decision made in relation to the death penalty. Lastly, it shows that the normative approach is firm. In the three cases presented above, the Marshall test held fast and produced an answer.

So how has the court developed the Eighth Amendment over time? Arguably, it did not. Instead the court has continuously reinforced the idea that there will never be a satisfactory, unchanging universal definition. The court followed established precedents up until Furman, when it (for the first time) recognized the broadness of the Eighth Amendment as a weakness and affirmed capital punishment. They have also relied heavily upon the Framer’s context for the Eighth Amendment and take its anti-torture message on its face. Unlike other clauses (such as the Fourth) where the actual meaning of space and privacy have been debated, there is no such debate for the Eighth Amendment. Its interpretation is essentially fixed. What the court developed instead was its approach. From Weems to Furman and Gregg the court honed the normative approach to the Eighth Amendment. This gives “cruel and unusual” a momentary, fleeting definition, allowing the court to come to a constitutional decision. An issue with this test is the possibility of reaching a standard decency that morally violates “cruel and unusual,” for instance, exploring the possibility of executing a pregnant woman. It can hardly be argued that executing a pregnant woman would violate the framer’s intent of “cruel and unusual.” At that point, the court will have to resolve the issue of precedent: is the Framers intent greater than the current standard of decency? If so, does this mean there is a universal and satisfactory definition of cruel and unusual? Exploring an example such as the pregnant woman shows that while the court has reached an acceptable (and seemingly unwavering approach), the Eighth Amendment, more so than any other clause, is locked in an eternal battle between intent and societal standards.

[i] U.S. Constitution. Amend VIII

[ii] Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31.3 Pepp. L. Rev. 661, 708 (2004).

[iii] Wilkerson v. State of Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878)

[iv] Ibid., Wilkerson v. State of Utah.

[v] Ibid., Wilkerson v. State of Utah.

[vi] Ibid., Wilkerson v. State of Utah.

[vii] Gilbert King, “Cruel and Unusual History,” The New York Times. April 23, 2008. Accessed April 27, 2017 http://www.nytimes.com/2008/04/23/opinion/23king.html

[viii] In Re Kemmler, 136 U.S. 436, 438 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890).

[ix] Weems v. United States, 217 U.S. 359 (1910)

[x] Ibid., Weems v. United States.

[xi] Ibid., Weems v. United States.

[xii] Ibid., Weems v. United States.

[xiii] Ibid., Weems v. United States.

[xiv] Ibid., Weems v. United States.

[xv] McGautha v. California, 402 U.S. 183 (1971)

[xvi] Ibid., McGautha v. California.

[xvii] Furman v. Georgia. 408 U.S. 238 (1972)

[xviii] Ibid., Furman v. Georgia.

[xix] Ibid., Furman v. Georgia.

[xx] Ibid., Furman v. Georgia.

[xxi] Austin Sarat; Neil Vidmar, Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976.1 Wis. L. Rev. 171, 206 (1976), pages 172-173.

[xxii] Ibid., 173.

[xxiii] Furman v. Georgia. 408 U.S. 238 (1972)

[xxiv] Ibid., Furman v. Georgia.

[xxv] Ibid., Furman v. Georgia.

[xxvi] Ibid., Furman v. Georgia.

[xxvii] Gregg v. Georgia, 428 U.S. 153 (1976)

[xxviii] Ibid., Gregg v. Georgia.

[xxix] Ibid., Gregg v. Georgia.

[xxx] Ibid., Gregg v. Georgia.

[xxxi] Ibid., Gregg v. Georgia.

[xxxii] Ibid., Gregg v. Georgia.

[xxxiii] Stanford v. Kentucky. 492 U.S. 361 (1989)

[xxxiv] Thompson v. Oklahoma. 487 U.S. 815 (1988)

[xxxv] Roper v. Simmons. 543 U.S. 551 (2005)

 

Bibliography

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  11. S. Constitution. Amend VIII. https://www.law.cornell.edu/constitution/eighth_amendment
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