The Eighth Amendment to the U.S. Constitution states that “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishment found in the Eighth Amendment can be traced as far back as Magna Carta, which states that freemen should not be amerced (held in mercy) for trivial offenses and only in proportion to the gravity of their offense. Although not a strict prohibition on cruel or unusual punishments it conceptually represents early notions of proportioning punishment with crime in Anglo-American law.
The Body of Liberties of the Massachusetts Bay colony (1641) limited the number of strokes a person could be whipped and stated “… bodily punishments we allow amongst us none that are inhumane Barbarous or cruel.” The prohibition was also included a decade later in the Laws and Liberties of the colony in virtually the same wording. Although these are the earliest prohibitions in the colonies that explicitly prohibit inhumane and cruel punishments, the language of the Eighth Amendment can be traced directly to the English Bill of Rights of 1689, which was passed by Parliament following the Glorious Revolution of 1688. The English Bill of Rights states “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The existence of prohibitions against cruel and unusual punishments did not stop the implementation of punishments that would be considered either cruel or unusual by today’s standards. Shaming punishments, such as pillorying, making individuals wear letters to signify their crimes, and forced public confession of offenses were widely used in the American colonies. Physical punishments such as ear cropping, nostril slitting, and branding were enforced in England and the colonies. Further, English criminal law inflicted the death penalty for fairly minor property offenses well into the 19th century.
In addition to the prohibition against cruel and unusual punishments found in the Eighth Amendment, 47 states have adopted separate prohibitions. Initially the Eighth Amendment prohibition was held only to apply to federal crimes as the U.S. Bill of Rights has never been held to be fully incorporated as applying to the actions of individual states. The prohibition against cruel and unusual punishment was not held to apply to the states until Robinson v. California, (1962). In general the Eighth Amendment’s prohibition has been applied to both the method of punishment inflicted, the proportionality of punishment inflicted compared to the severity of the crime committed, and the relationship of the punishment to the characteristics of the defendant.
The standards courts use to determine if a punishment is cruel or unusual have varied over the years. The concept of comparative proportionality was introduced by the U.S. Supreme Court in Weems v. United States (1910), which involved examining how the offense was punished in other American jurisdictions. The comparative analysis portion was removed six years later in Badders v. United States (1916), which has resulted in most nonlife sentences of imprisonment being upheld. However, Solem v. Helm (1983) explicitly re-implemented it as part of the criteria to be used in determining the proportionality of a punishment. The other factors were the gravity of the offense and how other offenders were treated within the jurisdiction, the terms of those who committed similar offenses and what offenses others who received the same punishment had committed. But in Hameline v. Michigan (1991) the court partially reversed itself, stating that the punishment had to be both cruel and unusual to violate the Eighth Amendment. Thus a mandatory life sentence for drug possession was not unusual and therefore not a violation, even if cruel.
In upholding the use of electrocution to impose the death penalty the court stated that “punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel . . .” In deciding In re Kemmler (1890) the court declined to apply the Eighth Amendment to states but interpreted the New York Constitution’s similar prohibition. The court noted that crucifixion, breaking on the wheel, or burning at the stake would constitute cruel and unusual punishments. In contrast the court has upheld all modern methods of execution including hanging in Campbell v. Wood (1994), the firing squad in Wilkerson v. Utah (1878), the gas chamber in Hunt v. Nuth (1995), and lethal injection in Baze v. Rees (2008).
In Furman v. Georgia (1972) the court held that capital punishment when left completely to the discretion of the jury, without guidelines for applying it, violated the Eighth Amendment. In Gregg v. Georgia (1976) the court upheld capital punishment when the jury was informed of lesser included offenses and in a separate sentencing hearing is presented with evidence of mitigating and aggravating factors before making a binding sentencing recommendation. For the death penalty to be imposed a predesignated aggravating circumstance must be meet. Finally an automatic appeal is granted to determine both if the aggravating circumstance was proved beyond a reasonable doubt and if the imposition of death is proportional to the penalty imposed in similar cases. Subsequently the court has allowed states to place the burden of proving mitigating circumstances on the defendant and has ruled that even with mitigating circumstances the jury can determine that they are outweighed by aggravating circumstances and impose the death penalty.
In terms of proportionality the Supreme Court has prohibited some punishments, such as physical castration in all circumstances, although chemical castration of sex offenders has not been fully prohibited. However, most claims of cruel and unusual punishment involve the application of accepted punishments in certain circumstances. Over the last half century the imposition of the death penalty has been limited to murder with aggravating circumstances. In Coker v. Georgia (1977) the court declared that death for the rape of an adult women constituted cruel and unusual punishment. This was followed by a prohibition of death sentences in cases of felony murder in which the co-felon did not know of his partner’s intent to commit murder. Finally, it was prohibited in cases of child rape in 2008.
As prison sentences are the most common type of punishment imposed they have been challenged as cruel and unusual numerous times. In Robinson v. California (1962) the court prohibited the imposition of any period of imprisonment for simply being addicted to narcotics, arguing that would be akin to imprisoning people for having a cold. However, the court has upheld the imprisonment of an addict if he or she commits an illegal act even if done because of their addiction. Mandatory minimum sentencing for recidivist offenders, regardless of what their final crime was, has become a focal point of contention regarding proportionality. California’s three-strikes law was the focus of a pair of cases, Lockyer v. Andrade (2003) and Ewing v. California (2003), decided the same day. The court in Ewing upheld the general principle of California’s imposition of indeterminate life sentences for repeat offenders, while the court in Andrade said that life sentences for repeat offenders did not violate the proportionality principle.
The court’s judgment of what constitutes cruel and unusual punishment demonstrates the evolution of American thinking on criminality and punishment. This is particularly visible with regard to the relationship of the characteristics of the defendants and the punishment imposed upon them. The court, in Thompson v. Oklahoma (1988), declared the implementation of the death penalty on defendants who were 15 years old or younger was prohibited by the Eighth Amendment. However, the following year the court held that imposition of the death penalty for children between 16 and 18 was permissible. The court overruled this view 16 years later in Roper v. Simmons (2005), where it cited the changing norms of society, domestically and globally, as a primary reason for the change in its ruling. Similarly, the courts view of executing persons with diminished mental capacity has evolved. In Penry v. Lynaugh (1989) the court affirmed the imposition of capital punishment for persons with diminished capacity, but noted that this was a mitigating circumstance for the jury to consider. Thirteen years later in Atkins v. Virginia (2002) the court reversed itself and declared the imposition of capital punishment on persons with diminished mental capacity was unconstitutional. The evolving standards doctrine seems to be alive and well in the area of Eighth Amendment jurisprudence and will likely continue to be contested as society changes.
From their medieval origins, prohibitions against cruel and unusual punishments have been included in several countries’ constitutions that were created after the adoption of the Bill of Rights. This has proven especially true of postcolonial constitutions adopted in the 20th century. The prohibition is the fifth article of the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations. Similarly, a prohibition against inhuman or degrading treatment or punishment was included in Article 4 of the Charter of Fundamental Rights of the European Union.
- Baker, J. H. An Introduction to English Legal History. 4th ed. London: Butterworth, 2002.
- Bessler, John D. Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment. Lebanon, NH: Northeastern University Press, 2012.
- “The Cruel and Unusual Punishment Clause and the Substantive Criminal Law.” Harvard Law Review, v.79 (1966).
- Cusac, Anne Marie. Cruel and Unusual: The Culture of Punishment in America. New Haven, CT: Yale University Press, 2009.
- Jarvis, Brian. Cruel and Unusual: Punishment and U.S. Culture. London: Pluto Press, 2004.
- LeFave, Wayne R. Criminal Law. 5th ed. New York: West Publishing, 2010.
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