The Marshall Hypotheses

Authored by: John K. Cochran

Routledge Handbook on Capital Punishment

Print publication date:  December  2017
Online publication date:  December  2017

Print ISBN: 9781138651579
eBook ISBN: 9781315624723
Adobe ISBN:


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The Eighth Amendment to the U.S. Constitution bans cruel and unusual punishment. Historically, especially with regard to capital punishment, the justices serving on the United States Supreme Court (USSC) have applied fixed, unchanging, absolutist interpretations of this protection. Punishments which were viewed as ‘torturous’, ‘lingering’, or ‘unnecessarily cruel’ were deemed unconstitutional; conversely, methods of execution, such as death by hanging, firing squad, the electric chair, etc., were not viewed as violating this protection (see Wilkerson v. Utah, 1878, In re Kemmler, 1890, and Louisiana ex rel. Francis v. Resweber, 1947). In Weems v. U.S. (1910), the USSC adopted a much different interpretation of cruel and unusual punishment. Rather than a fixed and unchanging definition of cruel and unusual punishment, the court asserted that a punishment which is “disproportionate” to the harm caused by the crime is “excessive” and, therefore, cruel and unusual. Then, in 1958 in Trop v. Dulles, the court determined that excessiveness and proportionality, as measuring sticks used to determine what constitutes a cruel and unusual punishment, were to be based on the application of the “evolving standards of decency that mark the progress of a civilized and maturing society” (p. 101).

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