Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/53

Rh forbids all “cruel and unusual punishments.” Amdt. 8.

concurs in the majority’s imposition of an “alternative method” requirement, but would also permit Bucklew’s execution on the theory that a method of execution violates the Eighth Amendment “‘only if it is deliberately designed to inflict pain.’” Ante, at 1 (concurring opinion) (quoting Baze, 553 U. S., at 94 (, concurring in judgment)). But that is not the proper standard.

For one thing, ’ view would make the constitutionality of a particular execution turn on the intent of the person inflicting it. But it is not correct that concededly torturous methods of execution such as burning alive are impermissible when imposed to inflict pain but not when imposed for a subjectively different purpose. To the prisoner who faces the prospect of a torturous execution, the intent of the person inflicting the punishment makes no difference.

For another thing, we have repeatedly held that the Eighth Amendment is not a static prohibition that proscribes the same things that it proscribed in the 18th century. Rather, it forbids punishments that would be considered cruel and unusual today. The Amendment prohibits “unnecessary suffering” in the infliction of punishment, which this Court has understood to prohibit punishments that are “grossly disproportionate to the severity of the crime” as well as punishments that do not serve any “penological purpose.” Estelle v. Gamble, 429 U. S. 97, 103, and n. 7 (1976). The Constitution prohibits gruesome punishments even though they may have been common at the time of the founding. Few would dispute, for example, the unconstitutionality of “a new law providing public lashing, or branding of the right hand, as punishment… [e]ven if it could be demonstrated