Despite heavy abolitionist activity during the nineteenth century, only a few constitutional challenges to the death penalty were made during that era. Of these, most dealt with the constitutionality of the method of execution that had been prescribed by the legislature.
For example, in the 1879 case of Wilkerson v. Utah, the defendant claimed that execution by firing squad was a violation of his Eighth Amendment protection against cruel and unusual punishment. 1
Utah law at the time provided that every person found guilty of murder would be put to death, but did not prescribe the method of execution to be carried out -- leaving that determination up to the court.
Upon hearing the case, the Supreme Court unanimously upheld the lower court's sentence of execution by firing squad -- determining that it was well within the authority of the court to prescribe that particular mode of execution. In the Court's opinion, delivered by Justice Clifford, it was noted that execution was the usual punishment for premeditated murder and that the death penalty had been carried out by firing squad in Utah for many years and therefore was not unconstitutional.
Mr. Justice Clifford delivered the opinion of the court: . . .
Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the 8th Amendment. . . .
Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted; but it is safe to affirm that punishments of torture . . . are forbidden by that amendment to the Constitution. . . .
Concede all that, and still it by no means follows that the sentence of the court in this case falls within that category, or that the Supreme Court of the Territory erred in affirming the judgment of the court of original jurisdiction. Antecedent to the enactment of the Code which went into operation March 4, 1876, the Statute of the Territory passed March 6,
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Publication information: Book title: Capital Punishment in the United States:A Documentary History. Contributors: Bryan Vila - Editor, Cynthia Morris - Editor. Publisher: Greenwood Press. Place of publication: Westport, CT. Publication year: 1997. Page number: 66.
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