FOR THE LAST WEEK, U.S. District Judge Jeremy Fogel has been considering the case of Michael Morales, who was sentenced to death for the 1981 murder of Terri Winchell in Lodi, Calif. The question facing the judge is whether lethal injection -- California's preferred method of execution -- violates the U.S. Constitution's ban on "cruel and unusual" punishment.
But what exactly is cruel? And what's unusual? Only a few years ago, lethal injection was considered a fast, modern and relatively humane way for the state to put prisoners to death, especially compared to such earlier techniques as hanging, the guillotine and the electric chair. More recently, though, the process has been called into question, with suggestions that it is too uncertain, too prolonged, too painful. One veterinarian recently said the state's lethal injection procedure caused so much pain and suffering that he wouldn't even use it on animals.
So how exactly is Fogel to determine whether the process violates the 8th Amendment? What can he turn to in the history of this 300-year-old legal concept to help him make what otherwise seems like an awfully subjective decision?
The phrase "cruel and unusual" first appeared in the English Bill of Rights in 1689, drafted by Parliament at the accession of William and Mary. It seems to have been directed at punishments unauthorized by statute, beyond the jurisdiction of the sentencing court or disproportionate to the offense committed.
After much discussion, the American colonists incorporated the same words into most of the original state constitutions. They became part of the federal Bill of Rights in 1791 as the 8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Based on the debates, it appears the drafters intended that the phrase apply to torture and other "barbarous" methods of punishment such as mutilation, burning, decapitation and drawing and quartering. What mattered was unusual cruelty in the \o7method \f7of punishment; they weren't concerned (and neither is Fogel) with whether the death penalty itself was cruel and unusual.
