I am inclined to agree with Supreme Court Justice,Douglas’ concurring opinion in the Furman decision which he likens to a statement in Trop v. Dulles (1958) and which states ‘ . . . the Eighth Amendment, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.‘ He goes on to state that inflicting the death penalty upon one is indeed ‘unusual‘ if it discriminates against him by reason of race, religion, sex, wealth, social position or class, or if it is imposed under a procedure that allows for such prejudices.
The American concept of cruel and unusual punishment goes back to English history. Early English documents show that the concept was intended to prohibit excessive punishment, rather than modes of inflicting the punishment.
America’s laws of punishment appear to follow a similar pattern as the English laws, although the founding fathers intended to interpret it with much broader meaning. Clearly George Mason, author of the Declaration of Rights, the ratifying delegates and those who adopted the laws did not view the amendment clause solely as prohibitive of excessive punishments, but prohibitive of torture and other cruel punishments, as well.
Beginning with the Massachusetts Body of Liberties, concern about torture and punishments were clearly outlined in six articles of the document. However its 1641 adoption did not include legislation restricting cruel and unusual punishment. While there was concern for cruel and unusual punishment, a number of the forms of punishment appeared in colonial America, as they had been practiced in England.