Evolutionary history: The changing purposes for capital punishment

DOIhttps://doi.org/10.1016/S1059-4337(07)00401-2
Date18 January 2008
Published date18 January 2008
Pages1-19
AuthorBeau Breslin,John J.P. Howley,Molly Appel
EVOLUTIONARY HISTORY:
THE CHANGING PURPOSES
FOR CAPITAL PUNISHMENT
Beau Breslin, John J. P. Howley and Molly Appel
ABSTRACT
This chapter explores how the principles of retribution and deterrence
were framed and thus used to justify capital punishment in the early years
of the Republic, and how the purposes for capital punishment have
changed in the past two centuries. We ask several related questions: (1)
Has our understanding of the morality and utility of retributive justice
changed so dramatically that the historical argument tying justification
for capital punishment to the past now ought to carry less weight? (2)
Have our perspectives on the purposes for capital punishment changed in
ways that now might call the entire experiment into question? and (3)
What, in short, can we say about the historical similarities between
arguments concerning retribution and deterrence at the Founding and
those same arguments today?
As is often true of common law principles, the reasons for the rule are less sure and less
uniform than the rule itself. (Justice Marshall’s majority opinion in Ford v. Wainwright,
477 U.S. 399 (1986))
Special Issue: Is the Death Penalty Dying?
Studies in Law, Politics, and Society, Volume 42, 1–19
Copyright r2008 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00401-2
1
INTRODUCTION
For almost half a century now, the members of America’s Founding
generation have found themselves at the axis of a fierce legal battle
surrounding the legitimacy of capital punishment. Their involvement began
in earnest in 1972 when several members of the Court’s majority in Furman
v. Georgia (408 U.S. 238) invoked the spirit of the Founding by building
their individual opinions around the concept of the nation’s historical and
moral development. Justice Douglas was perhaps the most explicit. In
rejecting the constitutionality of capital punishment, he noted that ‘‘the
Eighth Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society’’ (Furman v. Georgia,
at 242 (1972)). His point, of course, was that the perspective of the past is
relevant (in the arena of capital punishment at least) only insofar as it
provides a baseline for an ‘‘evolving’’ or developing conception of morality.
We can recognize that the meaning of such terms as ‘‘cruel and unusual
punishment’’ or ‘‘excessive’’ sanctions was different at the time of America’s
birth, and that since then our collective understanding of the concepts has
‘‘matured’’ or ‘‘advanced’’ – evolved over time, in other words. The
Constitution’s expansive clauses, Douglas inferred, take on more sophisti-
cated meanings as the social, political, and legal realities of the American
polity evolve.
The four jurists who dissented in Furman – Chief Justice Burger and
Associate Justices Powell, Blackmun, and Rehnquist – were not convinced.
They remarked that the views of eighteenth and nineteenth-century thinkers
should not so easily be dismissed. They are not simply figures that mark the
beginning of a society’s maturation process. Instead, the thoughts of
America’s constitutional draftsmen, amenders, and ratifiers are themselves
critical to comprehending the legitimacy of America’s experiment with
capital punishment. For jurists like former Chief Justice William Rehnquist,
who never wavered from his belief that the death penalty was appropriately
constitutional, a jurisprudence anchored to the notion of a changing or
‘‘evolving’’ definition is patently absurd. America’s constitutional Founders
should be consulted because they provide important insight into the fixed
meaning of the constitutional text. To suggest that a polity’s interpretation
of the Eighth Amendment changes or matures over time is to ignore the
simple fact that the Constitution is a written document. Its words do not
change, and thus, the meaning of those words should not change. Those
who crafted the original Constitution and its amendments, Rehnquist
concluded, were authoritative, and since capital punishment was both a
BEAU BRESLIN ET AL.2

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT