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 Life · Indefinite

Post-sentencing

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

Related areas of law

Criminal defenses Criminal law · Evidence Civil procedure

Portals

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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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Cruel and unusual punishment is a statement implying that governments shall not inflict suffering or humiliation on the condemned as punishment 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 History 2 See also 3 References 4 External links

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, scaphism, or necklacing.^[1]

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.^[2]

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.^[3]

See also

• Capital punishment
• Security of person - an expanded right against less lethal conduct.^[4]
• Eighth Amendment to the United States Constitution
• Section Twelve of the Canadian Charter of Rights and Freedoms

References

General

• History of the Death Penalty

Specific

1. ^ Revenge Is the Mother of Invention
2. ^ Dracula - Britannica Concise
3. ^ Breaking on the wheel - LoveToKnow 1911
4. ^ Rhona K.M. Smith, Textbook on International Human Rights, second edition, Oxford University Press, 2005, p. 245.

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)

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