The basis for most attacks on the death penalty is that it violates the constitutional guarrantee against cruel and unusual punishment. So where did we get this notion that cruel and unusual punishment should be prohibited?
Like many other concepts in our Constitution, we derived it from English law. In particular, from a guarantee in the English Bill of Rights of 1689. In it, it states, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;". When the founding fathers were drafting our constitution and the first ten amendments, they were essentially seeking to enshrine the rights which they had been brought up believing were inherent to all freeborn men.
Now, what became the 8th Amendment was as a result of some of the abuses which happened during the 17th century. Among them was the way in which some people were punished. The prohibition did not intend, or in fact, curb th euse of the death penalty. It was meant to curb sentences for crimes where the punishment was less than death. In particular, it was in reaction to a sentence handed down to a cleric by the name of Titus Oates, who had been implicated in teh Popish Plot against King Charles II. The sentence handed down, as related in Harmelin v. Michigan, was,
"The court then decreed that he should pay a fine of "1000 marks upon each Indictment," that he should be "stript of [his] Canonical Habits," that he should stand in the pillory annually at certain specified times and places, that on May 20 he should be whipped by "the common hangman" "form Aldgate to Newgate," that he should be similarly whipped on May 22 "from Newgate to Tyburn," and that he should be imprisoned for life.
501 U.S. 957
And by and large, it has remained that in American jurisprudence. The Supreme Court has variously held that hanging, firing squad, gas, and the electric chair are all allowed under the Eighth Amendment. The one that I am aware of that has not been allowed is drawing and quartering.
So is this is a correct ruling? Based on my understanding of the Eighth Amendment, the judge has written a bad decision. (As of this time, I have not been able to get a copy of the ruling.) However, does that make me hypocritical when it comes to my basic support for judges who interpret the constitution rather than remain strictly literalist?