Cruel and Unusual Punishment:

An Ideological Criticism

Since the establishment of the Constitution of the United States, capital punishment has been exercised.  The practice remains a hot button issue in America, wherein the states decide the penalty for capital crimes.  The Eighth Amendment to the Constitution prohibits cruel and unusual punishment.  Through the course of its life in legislature, the death penalty has been one of the most critically scrutinized legalities, as many Americans possess strong opinions for or against, while a population of both sides remains uneducated on the topic.  Despite such scrutiny, the amendment is unchanged in the Constitution.

            Since 18^th century BC, humans have practiced capital punishment.  Today with the expansive technology and knowledge of history, thirty-four of the United States carry out death sentences.  Since the installment of the Eighth Amendment, factors of abolition and reform have narrowed the original rulings on cruel and unusual punishment.  Since its enactment, the Eighth Amendment is unchanged; however, its ideology and meaning have undergone many facelifts.  There is one facelift that stands as the most drastic in history to date.

In 1972, the Supreme Court ruled out the death penalty for an African American in Georgia.  His crime of robbery backfired, quite literally, when the owner of the home woke up to find his home burglarized.  The defendant fled the house and in doing so, tripped outside the backdoor, accidentally firing his gun.  The bullet broke through the backdoor and killed the homeowner.  Simultaneously, two other African American men, Lucious Jackson and Elmer Branch, were on deck for capital punishment sentences solely for raping white women.

            At the current time of 1972 prior to these cases, a capital punishment trial was simple.  Jurors were to determine both guilt and punishment in the same breath, often without background information or circumstances of the defendant.  Also, no guidelines or standards with which to assess the relative gravity of the case were provided to the jury, which could also base life-or-death decisions on whatever attitudes or biases they happened to have stashed in their pockets upon entering the courtrooms.  Such statutes provided little room for appeal, if any, and typically executed defendants within a few weeks.  Obviously, this just didn’t work for the “Land of the Free.”

Upon the Supreme Court cases for the three men listed above, a 5/4 ruling tossed out every death penalty law in the country, setting aside the death penalties for more than six hundred inmates awaiting the fate of execution.  Justice White, a long time member of the Supreme Court thus frequent reader of execution petitions, concluded that there was “no meaningful basis for distinguishing the few cases in which [death] is imposed from the many in which it is not” (Furman v. Georgia, 1972).  The court held that the imposition of execution constituted “cruel and unusual” punishment in violation of the Eighth and Fourteenth Amendments due to the arbitrarily and randomly administered systems in which juries were given unrestricted and unguided discretion.

            “No justice in the five-member majority saw fit to join any of the others’ opinions.  Two members of the majority, Justices Brannen and Marshall, concluded that the death penalty was unconstitutional regardless of how it was administered.  The other members of the majority, Justices Stewart, Douglas, and White, agreed that the system of capital punishment then in existence was unconstitutional.  However, these justices reserved judgment on whether capital punishment could be constitutionally administered under some other system.”  (Coyne & Entzeroth, 2006.)

            Clearly, times were a-changing.  It was no longer accepted to commit a defendant to execution solely by jury opinion, better known as “public” opinion.  Not only were all three offenders black, but also the extenuating circumstances of their trials deserved more scrutiny than was provided.  A better jury system, however, was not the only aspect of the capital punishment process to be amended.

             Via amendment, symbolic terms were created and instilled to the courts.  According to scholars, discourse is politicized and powerful language the employed to attack or defend the dominant ideology.  So came “aggravating factors” defined as, “any relevant circumstances, supported by evidence presented during the trial, that makes the harshest penalty appropriate, in the judgment of the jurors” (about.com). 

After four years on pause, the death penalty was now again legal in the United States for whatever state wished to practice.  This moratorium did something, however.  For the first time since the 1920s, the abolitionist movement gained momentum.  Juries were screened for bias of any kind.  In the tailwind of the Civil Rights Movement, the United States was a confusing place.  In the years that would follow, hundreds of landmark cases would establish a standard of decency in sentencing, including those for the criminally insane, the mentally handicapped, and minors.

            Four years seems like four minutes in terms of history; however, something changed in the opinions of the Supreme Court.  What challenged the ideology of the American death penalty from 1972 to 1976?  What symbolic shift in society brought upon the continuation of legal action so heavily scrutinized by society?  Can ideology of a hegemonic structure such as the Supreme Court of the United States really change?  If the words “cruel and unusual punishment” remain in the amendment, what qualifiers changed their meanings?

            Rhetoric scholar Sonja K. Foss defines ideology as “a pattern of beliefs that determines a group’s interpretations of some aspect(s) of the world.  These beliefs reflect a group’s ‘fundamental social, economic, political or cultural interests” (Foss 2009).  Such beliefs and values to be sought in the 1972-1976 stay of executions attempt to analyze the evaluative knowledge and motives of the United States Supreme Court, emphasizing on its stop and start mentality.  The method infiltrated in the ideological criticism on this topic follows the conceptualization that hegemony is at play, ascertaining that one group is privileged over an other; in the cases against the African American men noted in the 1972 cases, one easily notes the dominance of white jurisprudence over black crime committal.

            The ideological approach infiltrated is under the influence of deconstructionism, whose purpose, defined by Foss, is “to subject to critical analysis the basic structures and assumptions that govern texts and the development of knowledge.  Methodologically, deconstruction is directed to the questioning of texts – taking apart and exposing their underlying meanings, biases, and preconceptions – and then transforming or reconceptualizing the conceptual fields of those texts” (Foss 2009).  This approach best qualified the parameters of the analysis since the primary subjects are official court opinions, straight from the Supreme Court justices’ pens. 

            The strategy then is to first identify the presented elements of the artifacts, the final rulings in both Furman v. Georgia, 1972, as well as Gregg v. Georgia, 1976.  Such presented elements are categorized as particular terms, metaphors, evidence, and major arguments.  Coding of such items is then analyzed for the identification of suggested elements.  Suggested elements evoke the articulation of ideas, references, themes, allusions, and concepts found in the presented elements.  To then formulate the ideology, suggested elements are grouped into categories to organize themselves into a coherent framework constituting what is implicit in the artifacts.  Ultimately this framework leads to the discovery of how the ideology constructed functions for the audience who encounters it, as well as the consequences it has in the world. 

            A close observation of the court opinions for both Furman v. Georgia and Gregg v. Georgia draws the presented elements of mere factual evidence as well as social commentary.  Such elements presented in the concurring opinions are trivial execution numbers, racial discrimination, a society doubtful of the death penalty, capital punishment deemed “cruel and unusual” for its randomness, jury bias, and the idea that such executions serve any social or public purpose. 

            Furman v. Georgia brought about the longest collection of opinions in history.  The 1972 decision to pause the use of execution was announced in a terse per curiam opinion; despite nine separate opinions by the justices of the Supreme Court, many themes presented themselves throughout.  Justice Stewart said, “These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual.”  Justice Brennan concurred, “When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily.”  Even Chief Justice Burger wrote in his dissenting opinion, “The very infrequency of death penalties imposed by jurors attests to their cautious and discriminating reservation of that penalty for the most extreme cases.”

The chance of serving a death sentence is tantamount to winning the lottery or being struck by lightening; its recipients are 100% random and others committing the same crimes do not always see the same fate.  No better example of pure chance is that of being born one race or another.

            Racial discrimination is referenced throughout death penalty literature.  In Justice Douglas’s concurring opinion, he writes that the words “cruel and unusual” also include that “it is cruel and unusual to apply the death penalty – or any other penalty – selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance the general application of the same penalty across the boards.”   Justice Brennan concurred, saying, “The objective indicator of society’s view of an unusually severe punishment is what society does with it.  And today society will inflict death upon only a small sample of the eligible criminals.”  Justice Marshall notes, “capital punishment is imposed discriminatorily against certain identifiable classes of people.”  Without equal protection under the law, the Fourteenth Amendment’s guarantee fails.

            A theme repeated in the opinions of the justices is society’s doubt in the death penalty.  Justice Brennan wrote, “The progressive decline in and the current rarity of the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today…At the very least, I must conclude that contemporary society views this punishment with substantial doubt.”  Concurring, Justice Marshall added, “Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.  For this reason alone capital punishment cannot stand.”   Justice Blackmun wrote his dissenting opinion on the case, noting, “[The cruel and unusual punishment clause of the Eighth Amendment] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society [and may acquire new meaning] as public opinion becomes enlightened by a humane justice.”  The justices articulate the evolving nature of meanings in the terms of the Eighth Amendment.  With special attention paid to society’s understanding of the death penalty and Eighth Amendment, it is important to note that society is represented in juries, chosen at random to decipher the outcomes of trials of any severity.

            The court turns focus on the jury system, wherein no guidance was provided to citizens selected to serve jury duty and undergo no prior screening for beliefs, prejudices, or any other extenuating circumstances that would now see them unfit for trial decisions.  Also noteworthy is the fact that trials were seen in one part rather than the current system of two; in 1972, the jury rendered a verdict of guilty or not guilty in the same session they were to render the defendant’s punishment.  In his concurring opinion, Justice White explained, “…Past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstance of the crime.”  Quite a bearing this has on the whole process.  One collective ideology found in all nine opinions, both concurring and dissenting, is that the system must change.

            Communication is a constantly evolving mechanism.  Connotative language qualifies and classifies meanings and symbols in diction to stimulate rhetorically persuasive conversation.  In the opinions of the Supreme Court justices in 1972, the states saw a pro capital punishment nation evidenced by the final opinions.  The justices did not necessarily strike down the death penalty wholly, but rather outlined the room for changes to be made within the realm of “cruel and unusual punishment.”  Therefore, the ideology of the 1972 Supreme Court proved to be one of great doubt, permitting the use of death sentences only after major change to the current legislations of the practicing states. 

The interests of the Court establish themselves as belonging to the people of the United States.  These interests form together in a framework illuminated by the good of the people and the warrants of the Eighth and Fourteenth Amendments.  What the justices saw was a “freakishly imposed” penalty unevenly distributed to citizens; the legislation called for a tightening of its belt in all aspects.  Better jury system, right to circumstantial evidence, and far narrower conviction grounds.  Upon this decision, the Supreme Court paused execution sentences in every state, granting more than 600 death row inmates nationwide life sentences.  This moratorium would last for four years, until the states refined their death penalty legislations in 1976.

Troy Gregg was charged with committing two counts of armed robbery and two counts of murder in Georgia.  By 1976, the states, namely Georgia, provided fresh legislation for the writ of death penalty trials.  By this time, all practicing states enacted the circumstantial factors to their capital punishment literature.  The circumstances qualify as either aggravating, defined as any relevant circumstances, supported by evidence presented during the trial, that makes the harshest penalty appropriate, in the judgment of the jurors, or mitigating factors, defined as any evidence presented regarding the defendant's character or the circumstances of the crime, which would cause a juror to vote for a lesser sentence. 

The judge instructed the jury to only suggest imposition of the death penalty if the members found beyond a reasonable doubt one of the following aggravating circumstances:

            “1 – That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-writ the armed robbery of the two murder victims.

            2 – That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.

            3 – The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant.”

The jury found the first and second of these circumstances present in the case, and returned death sentence verdicts on each count.  The Supreme Court of Georgia reviewed the trial transcript and record, including evidence compared to the evidence and sentences in similar cases in accordance with the requirements of Georgia law.  It was concluded that the results delivered by the jury were not based on prejudice or arbitrary factors, and also found that death sentences were not excessive or disproportionate to the penalty applied in other cases, with one exception.  The Supreme Court of Georgia vacated the death sentences imposed for armed robbery on the grounds that the death penalty had seldom been warranted in Georgia for that offense.  After four years of the death penalty in disuse, the sentence was put back on the table of legislation.

Who wants to be the guy convicted of such evil that the country readmits a retired practice?  Naturally, Gregg appealed the ruling to the Supreme Court, where it was granted certiorari.  In terms of the ideological framework, the court abided by its will to serve the American people, as evidenced by Justice Marshall’s 1972 opinion: “The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as fact finders, judges and ultimate arbiters of the Constitution.”  The ideology of the Supreme Court holds true regarding the ever-changing nature of the Eighth and Fourteenth Amendments, that is, to preserve the dignity of said amendments simultaneously in keeping with the progression of society. 

The Supreme Court of the United States granted the state of Georgia permission to execute Troy Gregg.  An examinations of the two victims showed that each had been shot on their bodies, and then shot again at close range in the head.  As well, the bodies were badly bruised and appear to show some struggle.  The defendant then robbed both victims before stealing their car, which was later found in North Carolina containing the .25 caliber pistol Gregg admitted to using on them.  The Supreme Court wasted no time delivering the 7-2 verdict that would ultimately cost Troy Gregg his life as well as green light the death penalty once again in the United States.

Presented to the court were severe changes to death penalty legislations in every practicing state.  The demands clearly outlined in the 150-page Furman decision now enveloped the literature on such due processing.  By establishing itself as the dominant power, the Supreme Court victoriously received the qualifications set forth upon the states if any such laws were to ever exist again.  The states followed suit, mended their fences, and succumbed their discourse to the hegemonic structure that comprised the Supreme Court.  A hegemonic ideology asserts that things are they way they have to be.  And as evidenced by the four-year moratorium, strict attention must be paid in the careful business of sentencing a person to death.  Otherwise, the practice deems itself as unconstitutional, a violation of fundamental citizenry. 

While the Eighth and Fourteenth Amendments to the Constitution still enlist the same diction as it was enacted, the symbolic meaning to “cruel and unusual punishment” continues to change.  The ideology of the Supreme Court circa the cases of Furman and Gregg remains identical from start to finish: to act as “judges and ultimate arbiters of the Constitution” and to possess the necessary elements of inevitable change associated with symbolic expression.  Furman’s case evoked a new standard of due processing regarding the writ of capital punishment.  The primary components of an ideology are evaluative beliefs; belief in a fairer process of the law via amendments to jury instruction, the addition of aggravating and mitigating circumstances, and the scrutiny of similar trials and sentences held as a mainstay in the Supreme Court from 1972 and onward.  By establishing the hegemonic norm of sentencing, the dominant power, the Supreme Court, infiltrated safety in the promises made by the very amendments challenged.  No cruel and unusual punishment is to be administered, and every American citizen has equal protection under the law.  While meanings and symbols transform, the ideology remains the same.