DEATH’S JUDICIAL STING

GREGG V. GEORGIA 428 U.S. 153 (1976) RULING ON FIVE DEATH PENALTY CASES, THE JUSTICES FOUND THAT THE EIGHTH AMENDMENT DOES NOT BAN THE DEATH PENALTY PER SE.

When in 1789 James Madison penned what would become the Eighth Amendment to the U.S. Constitution banning “cruel and unusual punishment,” he knew he was drafting a flexible standard. He borrowed wording from the English Declaration of Rights of 1689, and punishment acceptable then, such as burning at the stake, was no longer socially tolerated.

Through American history, given the mutability of social standards, courts have had to rule repeatedly on exactly what “cruel and unusual punishment” means. In 1878, the Supreme Court rejected a claim that execution