The Eighth Amendment forbids "excessive bail," "excessive fines" and "cruel and unusual punishments." Though it was certainly not on the Framers' minds, the Eighth Amendment has become in this generation almost exclusively involved with capital punishment. The Eighth has probably produced the most heated legal and moral debate of any amendment in the Bill of Rights.
This shortest of the first 10 amendments has also produced the longest one-case output of Supreme Court opinions. That was in 1972, when the court struck down a death sentence law in Georgia with a decision that, in effect, killed all such laws. Every justice wrote an opinion, all told about 50,000 words. Until that year, no federal or state court had ever struck down a death penalty law.
It was clear that what the Framers meant by "cruel and unusual" was torture rather than execution. Execution was a common practice in 1791. The Fifth Amendment refers to "capital" crime and sets rules for when a person can be "deprived of life." The "original intent" was so evident that there was little effort for 170 years after the Bill of Rights was adopted to try to get courts to forbid capital punishment. The American Civil Liberties Union did not even consider capital punishment a civil liberties issue till 1965.
The 1972 decision prompted states to rewrite their capital punishment laws to avoid the defects the Supreme Court had identified in the Georgia law. In 1976, the court upheld such a law, stating that the death penalty is not "under all circumstances" unconstitutional. Such laws are on the books in most states today, and they are being enforced with some regularity in many.
Meanwhile, legal scholars continue to attack capital punishment with the philosophical argument that has inspired their cause for 30 years. Former Justice William Brennan stated it succinctly in his Oliver Wendell Holmes Lecture at Harvard University in 1986. He said, quoting in part from previous Supreme Court opinions and other texts:
"The Eighth Amendment's prohibition of cruel and unusual punishment require[s] consideration of 'evolving standards of decency that mark the process of [our] maturing society' as well as 'standards of decency more or less universally accepted.' . . . Implicit in [the argument against capital punishment] is the understanding that in order to fulfill the court's duty to decide whether a punishment was cruel and unusual, it is necessary to refer to contemporary societal values."
This argument has been so flatly rejected by Justice Brennan's peers that it is certain that well into the 21st century the death penalty will be as constitutional as it has been in the last three.