of the issue and some of the arguments on both sides will help decide whether capital punishment should or should not be imposed in our society.
Once the essential language of the U.S. Constitution was written and adopted, many of the concerns of the individual states were addressed in the first ten articles of Amendments, also known as the Bill of Rights. These ten articles were influenced largely by George Mason, Thomas Jefferson, and James Madison, with much of the final language based on Mason's "Declaration of Rights" for Virginia's Constitution of 1776. There were originally twelve, but two were eliminated as the final ten were adopted in 1791. Article VIII states: "Excessive bail shall not lie required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." These simple words have engendered reams of interpretation, for the Constitution does not say what constitutes either cruel or unusual punishment or how to make such a determination.
Kermit L. Hall notes that for the first century after the adoption of Article VIII, the question of cruel and unusual punishment was a completely dead issue. During that time, the Supreme Court conceded that torture and punitive "atrocities"--such as burning at the stake, crucifixion, or breaking on the wheel--would be defined as cruel and unusual, as in Wilkerson v. Utah in 1879. Other forms of punishment that were actually authorized by the state--such as hanging, shooting, and electrocution--were not, as seen in In re Kemmler in 1890. Hall writes,
The Court's criterion seems to have been whether a punishment would have been considered cruel and unusual in 1791, when the Bill of Rights was ratified.
This remains a point of contention today, whether the Constitution should be interpreted solely and specifically as the Founders would have done it or whether it should be seen as an evolving document that changes in light of subsequent national experience...