Cruel and unusual punishment

For nearly a century after the establishment of the United States, the Eighth Amendment's prohibition of cruel and unusual punishments was virtually a dead letter. The Supreme Court did concede that torture and punitive “atrocities,” such as burning at the stake, crucifixion, or breaking on the wheel, would be cruel and unusual (Wilkerson v. Utah, 1879). But other forms of punishment actually authorized by statute—hanging, shooting, electrocution—were not (In re Kemmler, 1890). The Court's criterion seems to have been whether a punishment would have been considered cruel and unusual in 1791, when the Bill of Rights was ratified.

In 1910 the Court in Weems v. United States invalidated a territorial statute derived from Spanish law that imposed cadena temporal—twelve to twenty years chained in prison—for knowingly entering a false statement in the public record. Because this penalty was excessive and disproportionate to the crime, the Court ruled that it was cruel and unusual. Against a narrow historic reading of the Eighth Amendment, the Court observed, “[A] principle to be vital must be capable of wider application than the mischief which gave it birth” (p. 373). Yet the criteria implied by this broader reading of the clause have remained obscure. Recently, the Court has held that the death penalty for rape (Coker v. Georgia, 1977) and for kidnapping (Eberheart v. Georgia, 1977) was cruel and unusual because “grossly disproportionate to the offense.” In 1958 the Court ruled that expatriation, which is denial of an offender's very “right to have rights,” violated the clause (Trop v. Dulles). Punishments, the Court said, must comport with “the basic concept of human dignity at the core” of the clause (p. 100). In the Court's first application of the clause to invalidate a state penal law, it struck down imprisonment for the status offense of narcotics addiction (Robinson v. California, 1962).

The question whether capital punishment was cruel and unusual was not considered until 1972. In Furman v. Georgia, a divided Court held that the death penalty as then typically administered for murder and rape was so “arbitrary” and “freakish” as to be cruel and unusual. However, four years later, in the wake of newly enacted capital statutes in three dozen states, the Court declared that the death penalty as such was not a cruel and unusual punishment (Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, 1976). The Court was influenced not only by popular support for the death penalty but also by new statutory guidelines intended to make the choice of sentence (death or imprisonment) more rational. The Court did hold, however, that a mandatory death penalty for murder, created to avoid arbitrariness by sacrificing “individualized” sentencing, was cruel and unusual (Woodson v. North Carolina, 1976). Such a punishment may not be employed even for a prisoner convicted of murder while serving a life term for murder (Sumner v. Shuman, 1987).

The Court has yet to decide whether the death penalty for nonhomicidal crimes, such as treason and espionage, is a cruel and unusual punishment. Legislative repeal of traditional corporal punishments has so far mooted any decision on their constitutional status.

Bibliography

• Larry C. Berkson, The Concept of Cruel and Unusual Punishment (1975)

— H. A. Bedau

The 8th Amendment to the Constitution prohibits the government from inflicting “cruel and unusual punishments.” Individuals are protected from inhumane punishments, such as torture, burning at the stake, or crucifixion. Further, any punishment considered too severe in relation to the crime committed has been judged by the Court as “cruel and unusual punishment.” In Weems v. United States (1910), for example, the Court overturned a sentence of 12 to 20 years in chains for a person convicted of giving false testimony. The Court judged this sentence to be cruel and unusual punishment because the penalty was out of proportion to the crime.

In 1972, in Furman v. Georgia, the Court decided that the death penalty was cruel and unusual punishment. In 1976, however, the Court held in Gregg v. Georgia that the death penalty is not necessarily an example of cruel and unusual punishment as long as systematic procedures are followed to eliminate arbitrary or racially discriminatory use of capital punishment.

Chief Justice Earl Warren aptly described the intent of the ban against cruel and unusual punishment in Trop v. Dulles (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.” Warren also discussed the relationship of the ban on cruel and unusual punishment to community standards: “The Court [has] recognized… that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.”

See also Capital punishment; Furman v. Georgia

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law, or any fine, penalty, confinement, or treatment so disproportionate to the offense as to shock the moral sense of the community.

The Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes. The amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution bars the states from inflicting such punishment for state crimes, and most state constitutions also prohibit the infliction of cruel and unusual punishment.

In attempting to define cruel and unusual punishment, federal and state courts have generally analyzed two aspects of punishment, the method and the amount. As to the method of punishment, the Eighth Amendment clearly bars punishments that were considered cruel at the time of its adoption, such as burning at the stake, crucifixion, or breaking on the wheel (see In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]). In Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), the Supreme Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even if the prisoner does not suffer serious injury. However, the actual infliction of physical pain or hardship is not necessary for a finding of cruel and unusual punishment. In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the Supreme Court held that the use of denationalization (the deprivation of citizenship) as a punishment is barred by the Eighth Amendment. The Court reasoned that when someone is denationalized, "[t]here may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development." The Court also opined that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

The Supreme Court has held that the death penalty itself is not inherently cruel, but has described it as "an extreme sanction, suitable to the most extreme of crimes" (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of carrying out the death penalty, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The Supreme Court has considered the issue of proportionality particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman. In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), the Court held that the Eighth Amendment does not permit the imposition of the death penalty on a defendant who aids and abets a felony during which murder is committed by someone else, when the defendant does not kill or attempt to kill, or does not intend that murder take place or that lethal force be used.

In Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the Court applied its proportionality analysis to felony prison sentences. In Solem, the defendant had passed a bad check for $100. Although this crime would ordinarily be punishable by a maximum five-year sentence, the defendant had been sentenced to life imprisonment without parole because of six prior felony convictions. The Court held that the sentence was significantly disproportionate to the defendant's crime and was thus prohibited by the Eighth Amendment.

The prohibition on cruel and unusual punishment also bans all penal sanctions in certain situations. For example, in Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), the Court ruled that punishment cannot be inflicted simply because a person is in a certain condition or has a particular illness. Robinson concerned a California statute (Cal. Health & Safety Code § 11721 [West]) that criminalized addiction to narcotics, rather than the possession, use, or sale of narcotics. The Court struck down the statute, stating,

We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment. … To be sure, imprisonment for ninety days [the sentence imposed in this case] is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.

See: Capital Punishment; Juvenile Law.

Punishment prohibited by the Eighth Amendment to the Constitution. Cruel and unusual punishment includes torture, deliberately degrading punishment, or punishment that is too severe for the crime committed. This concept helps guarantee due process even to convicted criminals. Many people have argued that capital punishment should be considered cruel and unusual punishment.

Criminal procedure

Criminal trials and convictions

Rights of the accused

Fair trial · Speedy trial Jury trial · Counsel Presumption of innocence Exclusionary rule1 Self-incrimination Double jeopardy2

Verdict

Conviction · Acquittal Not proven3 Directed verdict

Sentencing

Mandatory · Suspended Custodial Dangerous offender4, 5 Capital punishment Execution warrant Cruel and unusual punishment

Post-sentencing

Parole · Probation Tariff6 · Life licence6 Miscarriage of justice Exoneration · Pardon

Related areas of law

Criminal defenses Criminal law · Evidence Civil procedure

Portals

Law · Criminal justice

1 U.S. courts. 2 Not in English/Welsh courts. 3 Scottish courts. 4 English/Welsh courts. 5 Canadian courts. 6 UK courts.

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This article needs additional citations for verification. Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (September 2007)

Cruel and unusual punishment is a statement implying that governments shall not inflict such treatment for crimes, regardless of their degree of severity. It was founded in the English Bill of Rights, which was signed in 1689 by King William III and Queen Mary II who were then the joint rulers of England, Scotland, and Ireland following the 'Glorious Revolution' of 1688.

These exact words later appeared in the Eighth Amendment to the United States Constitution (1787). The British Slavery Amelioration Act of 1798 also used the term, forbidding slave owners from using "cruel and unusual punishment" on slaves in the British Caribbean colonies.

Very similar words ('No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment') appear in Article Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly (A/RES/217, December 10, 1948). The right, under a different formulation ('No one shall be subjected to [...] inhuman or degrading treatment or punishment.') is found in Article Three of the European Convention on Human Rights (1950). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found again in Article Four (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Contents 1 Definition 2 History 3 See also 4 References 4.1 Inline 4.2 General 5 External links

Definition

The examples and perspective in this section deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article or discuss the issue on the talk page.

This section may contain original research or unverified claims. Please improve the article by adding references. See the talk page for details. (October 2008)

What these words mean in practice is the subject of much legal argument. In general the interpretation of each of the two words is in keeping with the basic legal maxim that the "punishment should fit the crime".

The term "cruel" is necessarily flexible according to the circumstances, since all punishments have the potential to be cruel to some greater or lesser degree.^{[citation needed]} The "unusual" provision has proven easier to interpret: providing that persons will not be subjected to arbitrary, humorous, or capricious punishment outside the normal course of the law (for example, tarring and feathering). Another way to make the punishment usual is to simply use it more often.

Though it has been a part of the law in the United States since its inception,^[1][2][3] by the twentieth century many people in the U.S. came to consider capital punishment per se to be a cruel and unusual punishment.^[4] As of 2009, fifteen U.S. states and the District of Columbia have abolished the death penalty,^[5] and others have specifically prohibited certain methods of execution, e.g. by electrocution, by hanging, etc. The United States Supreme Court ruled that the application of the death penalty, in certain circumstances – such as the execution of a minor under the age of 18, or of a mentally handicapped person – is unconstitutional, regardless of the existence of other aggravating circumstances. The Court also ruled in 1983 that the imposition of a sentence of life imprisonment without parole for a non-violent felony may constitute cruel and unusual punishment, although a subsequent decision represented a partial retreat from that position.^{[citation needed]}

At the time the Eighth Amendment was written, capital punishment was in common use in America, in Great Britain, and in Western Europe. There also existed punishments that were generally considered cruel and unusual, such as hanging, drawing, and quartering; burning at the stake; and impalement.

In the European Union, on the other hand, prohibition of the death penalty has been made a fundamental condition which must either be passed into the law of states hoping to join, or, as in the case of Latvia, its use be subject to a moratorium. The Charter of Fundamental Rights of the European Union (which currently carries no legal standing) states in its second article that "Everyone has the right to life. No one shall be condemned to the death penalty, or executed."

History

For most of recorded history, capital punishments were often deliberately painful. Severe historical penalties include the breaking wheel, boiling to death, flaying, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, decapitation, scaphism, or necklacing.^[6]

Impalement was a method of torture and execution whereby a person is pierced with a long stake. The penetration can be through the sides, from the rectum, or through the mouth. This method would lead to a slow and painful death. Often, the victim was hoisted into the air after partial impalement. Gravity and the victim's own struggles would cause him to slide down the pole, especially if the pole were on a wagon carrying war prizes and prisoners. Death could take many days. Impalement was frequently practiced in Asia^[where?] and Europe throughout the Middle Ages. Vlad III the Impaler, who learned the method of killing by impalement while staying in Constantinople as a prisoner, and Ivan the Terrible have passed into legend as major users of the method.^[7]

The breaking wheel was a torturous capital punishment device used in the Middle Ages and early modern times for public execution by cudgeling to death, especially in France and Germany. In France the condemned were placed on a cart-wheel with their limbs stretched out along the spokes over two sturdy wooden beams. The wheel was made to revolve slowly. Through the openings between the spokes, the executioner hit the victim with an iron hammer that could easily break the victim's bones. This process was repeated several times per limb. Once his bones were broken, he was left on the wheel to die. It could take hours, even days, before shock and dehydration caused death. The punishment was abolished in Germany as late as 1827.^[8]

See also

• Capital punishment
• Security of person - an expanded right against less lethal conduct.^[9]
• Eighth Amendment to the United States Constitution

References

Inline

1. ^ "CAPITAL PUNISHMENT IN THE UNITED STATES: A Documentary History" Edited by BRYAN VILA and CYNTHIA MORRIS, GREENWOOD PRESS, Westport, Connecticut
2. ^ "Immediately after the American Revolution, some legislators removed the death penalty as punishment for many crimes." in Trial and Error: Capital Punishment in U.S. History by William S. McFeely
3. ^ " it is understood at the time that the Eighth Amendment was not intended to stop it." in Capital Punishment Timeline
4. ^ "June 29, 1972: The U.S. Supreme Court ruled in the case of Furman v. Georgia that the death penalty as then applied constituted cruel and unusual punishment. States were ordered to stop executions." in U.S. capital punishment history Houston Chronicle, February 2, 2001
5. ^ "Death Penalty Policy By State". Death Penalty Information Center. http://www.deathpenaltyinfo.org/death-penalty-policy-state. Retrieved on 2009-03-27. 
6. ^ Revenge Is the Mother of Invention
7. ^ Dracula - Britannica Concise
8. ^ Breaking on the wheel - LoveToKnow 1911
9. ^ Rhona K.M. Smith, Textbook on International Human Rights, second edition, Oxford University Press, 2005, p. 245.

General

• History of the Death Penalty

External links

• Cases in 2003
• Cases in 2002
• Cases in 2001
• Cases in 2000
• American Declaration of the Rights and Duties of Man (Approved by the Ninth International Conference of American States, Bogotá, Colombia, 1948)

v • d • e Particular human rights Civil and political Freedom from discrimination · Right to life · Right to die · Security of person · Liberty · Freedom of movement · Freedom from slavery · Personhood · Right to bear arms · Equality before the law · Adequate remedy · Freedom from arbitrary arrest and detention · Freedom from torture · Freedom from cruel and unusual punishment · Right to a fair trial · Presumption of innocence · Right of asylum · Nationality · Freedom from exile · Privacy · Freedom of thought and conscience · Freedom of religion · Freedom of expression (freedom of information) · Freedom of assembly · Freedom of association · Right to protest · Universal suffrage · Marriage · Family life Economic, social and cultural Labor rights · Fair remuneration · Equal pay for equal work · Trade union membership · Right to social security · Leisure and rest · Right to work · Right to property (and intellectual) · Right to culture · Right to public participation · Right to education · Right to adequate standard of living · Right to housing · Right to development · Right to health · Right to healthcare · Right to water · Right to food · Right of return Reproductive Family planning · Reproductive health · Abortion · Genital integrity · Freedom from involuntary female genital cutting War and conflict Civilian · Combatant · Freedom from genocide · Prisoner of war Note: What is considered a human right is controversial and not all the topics listed are universally accepted as human rights.

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