Is the Death Penalty a Cruel and Unusual Punishment?

This post is part of our series on the Bill of RightsWe’re highlighting primary sources from our student workbook Putting the Bill of Rights to the Test, that helps students explore core concepts found within the Bill of Rights, and how they’ve impacted American history. This year marks the 225th anniversary of the ratification of the first 10 amendments to the Constitution, known as the Bill of Rights. The National Archives is commemorating the occasion with exhibits, educational resources, and national conversations that examine the amendment process and struggles for rights in the United States.

America’s Founders witnessed a time when branding, ear cropping, drawing and quartering, and other methods of torture were commonplace. In order to safeguard citizens from excessive punishment the Eighth Amendment ensures individuals protection from cruel and unusual punishment.

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

But what is cruel and unusual punishment and who decides what is considered cruel and unusual? How can it be measured?

In 1900, eighteen people in Van Buren County, Arkansas, felt compelled to petition the government and express their disagreement with capital punishment. Both the group’s freedom of expression and right to petition the government are protected by the First Amendment, but the issue they raised directly relates to the Eighth Amendment.

For the petitioners, capital punishment or the death penalty, was simply murder. They felt individuals should not be put to death, but could be rehabilitated after much introspection and reflection. The petitioners’ goal was to have Congress abolish the death penalty and for America to take its place as a moral leader of the world.

Petition to Abolish the Death Penalty
Petition to Abolish the Death Penalty, 1900. From the Records of the U.S. House of Representatives. National Archives Identifier 25466029.

Direct students to read the opening paragraphs of the petition. Ask them to carefully note the following:

  • What do the petitioners define capital punishment to be?
  • What do they hope will happen to capital punishment?
  • What do the petitioners believe is an alternative to the death penalty?

Begin a discussion by focusing on the language used in the petition. Ask the following questions:

  • What feelings are the petitioners hoping to evoke from the members of Congress by titling the petition “The Light of Truth”?
  • What do the petitioners believe to be “pure Justice” and how can it be obtained?
  • What do the petitioners mean when they use the word “Humanitarianism”?
  • What do you think the petitioners’ main influence is for writing this petition? Ask students to cite specific words or phrases from the text that support their argument.

Further the discussion by asking students to share their thoughts on the following:

  • What does cruel and unusual mean?
  • How is the cruelty of a punishment measured?
  • Who decides if a punishment is cruel and unusual?

Explain to students that the death penalty is still a hotly debated topic today for many reasons. Guide a class discussion, asking students to:

  • List the arguments used by both sides of the issue as to why capital punishment should or should not be abolished.
  • Conduct research to find out how many states have abolished the death penalty and how many states still use capital punishment. Is it still legal in the state of Arkansas or has it been abolished?

Conclude the class discussion by sharing the following phrase from the Fifth Amendment and asking these follow-up questions:

No person shall be held to answer for a capital, or otherwise infamous crime,…nor be deprived of life, liberty, or property, without due process of law….

  • How should the Fifth and Eight Amendments be balanced?
  • Based on this, do you believe the Founders felt that capital punishment was an appropriate punishment as long as a person had received proper due process?

4 thoughts on “Is the Death Penalty a Cruel and Unusual Punishment?

  1. This is an interesting source to look at when dealing with the complex debates surrounding the death penalty. It is a good source to use for a class of young people who are currently working on a unit that involves debating the rights and wrongs of the death penalty. It is a good thing that items like this have been preserved so we can get a better view of perspectives in the past.

    1. Thank you so much for your comment, Sophronia! I am glad that you found the document to be so useful for your students when discussing the death penalty. The reason why I posted this specific document is because I feel it can spark many good conversations. Don’t forget to explore the newly renovated DocsTeach website to locate other documents that can provide important perspectives on the past.

  2. Obviously, the prevention of murder is preferable to a punishment once a homicide is committed. Thus, through education, employment opportunities, mental health counseling, family commitment, reduction of racism we can have some impact and should strive to get better at these things. But it is idealistic to believe that all homicides will be prevented, and that the Ted Bundys will be taken off the streets before they do their horror. The question is whether capital punishment is a deterrent and when we see those sentenced to death go 20 years and more without being executed, it appears that the answer is probably NO. Thus, life without parole is proably the most effective as well as humane. I want justice for the individual but I always want protection for the public.

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