Is the death penalty cruel and unusual?

SPEAKER_1 (0:00)

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Rund Abdelfatah (0:15)

The failed lethal injection of death row inmate Christa Pike, the second botched execution in Tennessee just this year, has reignited a national conversation about cruel and unusual punishment.

So, we thought it was a good time to revisit this episode about the Eighth Amendment. And a note before we get started. This episode includes descriptions and discussion of violent acts, including murder and execution.

Ramtin Adab-Louis (0:51)

Utah, 1877 A man named Wallace Wilkerson stops by a saloon. He starts by playing a game of cards with another man named William Baxter. An argument starts. Wilkerson takes out a gun, shoots Baxter in the head, killing him, and then he flees.

Wilkerson is captured. A few months later, he's convicted of murder and sentenced to be executed the next month.

Carol Steiker (1:32)

Utah was not yet a state. It was a federal territory, and it was settled then as now by Mormons, and Brigham Young, who was the leader of the Mormons, preached that blood atonement was necessary for murders.

So he didn't want to use hanging because you don't bleed when you're hanged, but you do bleed when you're shot. And so Mormon territory used the firing squad as a form of execution.

Ramtin Adab-Louis (2:06)

So he didn't want to use hanging because you don't bleed when you're shot. So he didn't want to use hanging because you don't bleed when you're shot. So he didn't want to use hanging because you don't bleed when you're shot. So he didn't want to use hanging because you don't bleed when you're shot.

Carol Steiker (2:21)

All right, here's the original text of the Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Rund Abdelfatah (2:37)

Cruel and unusual punishments, a term that was adopted from England and meant to protect the people from a tyrannical government. But what was cruel and unusual punishment?

Carol Steiker (2:49)

So what's interesting, the court first says, very hard to know what this means. But then they go on to say, the one thing we can say with some certainty is that it had something to do with torture, that torture is not good. And they reference things that they would be pretty sure would be cruel and unusual punishment. Drawing and quartering, disemboweling, burning at the stake.

My name is Carol Steiker. I'm a professor at Harvard Law School. I'm the author of Courting Death the Supreme Court and Capital Punishment.

In 1878, the question was whether firing squads were cruel and unusual punishment. Court says that's not torturous. It's not unnecessary cruelty. And we know that because, you know, we've used it a lot as a punishment for deserters in wartime. So the court says, we don't have a problem with the firing squad as cruel and unusual punishment. But they also said, we're not entirely sure what its contours are. It just doesn't reach this far.

Rund Abdelfatah (4:09)

On the day of his execution, Wallace Wilkerson sat in a chair facing three guns about 30 feet away. He made a short speech and said he hoped God would forgive him. Then three concealed gunmen fired. He continued breathing for 27 minutes before being pronounced dead.

Almost 150 years later, the firing squad is still a legal way to execute someone in five states.

SPEAKER_5 (4:49)

South Carolina's highest court says death row inmates there may choose to die by firing squad, electric chair, or by lethal injection.

Rund Abdelfatah (4:57)

The death penalty is still constitutional. But debates over what exactly is cruel and unusual are ongoing and wide-ranging.

SPEAKER_6 (5:07)

A lower court ruled earlier that Alabama's method of execution using nitrogen gas to kill a prisoner constituted cruel and unusual punishment and…

SPEAKER_7 (5:17)

The judge in Tennessee is ordering the state to preserve evidence related to last week's failed execution of death row inmate Krista Pike.

SPEAKER_8 (5:25)

The Trump administration plans to live stream the execution of the man convicted of murdering 13 people at Fort Hood.

SPEAKER_9 (5:31)

The UN. Human Rights Office warned Friday that live streaming and execution could amount to torture.

SPEAKER_10 (5:37)

You've taken the position as headquarters that solitary is torture.

SPEAKER_11 (5:41)

Solitary is a total degradation of a human life.

SPEAKER_12 (5:46)

I'm uncomfortable using words like solitary and torture.

Ramtin Adab-Louis (5:50)

So what is cruel and unusual punishment? Who gets to define and decide its boundaries? And what do we know about how the people who wrote the Eighth Amendment imagined its meaning might change?