chapter  XXX
XXX Civilizing the Death Penalty
Pages 12

Comparatively few Eighth Amendment cases had previously reached the Court. Although the amendment prohibited cruel and unusual punishments, no one seriously contended that its framers had intended to outlaw capital punishment. The grand jury, due process, and double jeopardy provisions of the Fifth Amendment, adopted by the same Congress that adopted the Eighth, specifi cally refer to the death penalty as a permissible punishment. Because the same Congress enacted the death penalty for treason and other federal crimes, they clearly could not have intended to abolish capital punishment as cruel and unusual. The penalty had been part of the criminal justice system since time immemorial, and few questioned its effi cacy and legitimacy. What the framers had in mind were the barbarities sanctioned by the English common law, such as live evisceration, burning at the stake, and breaking on the wheel. But capital punishment itself was not considered cruel or unusual. Some crimes called for nothing less, and government had both the right and a duty to enforce it.