Text of our Eighth Amendment is derived from and closely mirrors the part of England’s Bill of Rights declaring, “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed; and illegal and cruel punishments inflicted.”

The framers of the constitution had fought tyranny face-to-face. They feared that any government exercising power over its citizens might be tempted to misuse its power, perhaps by using torture to extract confessions from the accused or by creating crimes in order to punish and oppress its citizens or anyone designated an enemy of the state. In fact, Abraham Holmes, a member of the Massachusetts Ratifying Convention for the U.S. Constitution, explained that without prohibitions on cruel and unusual punishments, governing powers are otherwise unrestrained “from inventing the most cruel and unheard-of punishments, and annexing them to crimes…[and] that racks and gibbets may be amongst the most mild instruments of their discipline.”

Today, debates over cruel and unusual punishment tend to focus on the death penalty. For example, the American Civil Liberties Union opposes the death penalty and takes the position that granting the state the right to kill people “is inconsistent with the fundamental values of our democratic system.” On the other hand, the Criminal Justice Legal Foundation supports the death penalty and has filed various Amicus Curiae briefs in the Supreme Court that are consistent with its position. At the end of the day, the Supreme Court has rejected the notion that the death penalty invariably violates the Eighth Amendment’s prohibition against cruel and unusual punishment for well over a century and on many occasions. That said, the Supreme Court has carved out a handful of categorical restrictions against the use of the death penalty including instances of juvenile offenders, offenders whose intellectual functioning is on the lower end, and non-homicide convictions.

Nonetheless, the death penalty is authorized in 27 states and in June 2021, the Pew Research Center issued a Report revealing that public opinion polling continues to show that a majority of Americans support the death penalty for convicted murderers.

Our Bill of Rights surveys are receiving hundreds of replies. Please keep submitting your opinions and thoughts. A brief summary of responses to last week’s Seventh Amendment tells us that there is currently little faith in impartiality in the courts but a strong desire that it return to following the Rule of Law, that emotions may play a greater role in jury decisions rather than the law, and that “certain cases find favor in certain courts…” based on the political fabric of the region. Please continue to share your insights with America’s Future. Click the button below to participate in our Eighth Amendment survey.