Cruel and Unusual Punishment (VIII)

The Eighth Amendment forbids the infliction of cruel and unusual punishments. This constitutional prohibition is itself unusual, because in using the intrinsically subjective terms ‘‘cruel’’ and ‘‘unusual,’’ it necessarily calls for the use of judgment. Determining the meaning of the Eighth Amendment, then, first requires ascertaining on whose judgment the clause hinges.

The judgment as to what is cruel and unusual, and therefore what is unconstitutional, cannot be that of Congress or the president, because the Bill of Rights was enacted to curtail the power of the federal government. The Eighth Amendment, like most of the Bill of Rights, applies to state governments through the incorporation doctrine, and as such, it cannot be left to the judgment of the states to determine the contours of the cruel and unusual punishment clause. The Constitution is also meant to protect vulnerable minorities from the tyranny of majority whim; such protection would be meaningless if the interpretation of what is cruel and unusual was determined by the views of a majority of the people. Since Marbury v. Madison, it has been the recognized province of the federal judiciary to interpret the Constitution; however, the Supreme Court has repeatedly stated that the cruel and unusual punishment clause cannot merely reflect the subjective views of what the Supreme Court Justices find repugnant.

The paradox of whose view of acceptable punishments should shape the cruel and unusual punishment clause has been resolved by adopting an ad hoc collection of doctrines drawing from various sources of authority. Deference is generally given to state governments to define appropriate punishments for given crimes. However, state and federal governments are subject to three core restrictions. First, punishments cannot be arbitrary, capricious, or barbaric. Second, at least in some circumstances, punishments can be overruled for being disproportionate to a defendant’s culpability. Third, punishments must not be contrary to a national consensus as to evolving standards of decency. The first two restrictions have largely being developed with reference to judicial views of acceptability of certain punishments: a punishment is overruled if the Justices consider it disproportionate or arbitrary. The third restriction is facilitated by judicial aggregation of state legislation, and to a lesser extent jury determinations: the less often a punishment is available or imposed in a state jurisdiction, the more likely the Supreme Court is to rule that it is contrary to a national consensus and thus unconstitutional.

The foregoing description overstates the clarity of Eighth Amendment jurisprudence. In recent years, some Supreme Court Justices have challenged the appropriateness of a proportionality requirement; in its defense, other Justices have argued that the proportionality requirement and the national consensus test are in fact one doctrine. There is also strong Supreme Court division over the application of the evolving consensus doctrine. It is also unclear whether ‘‘cruel’’ and ‘‘unusual’’ constitute separate prohibitions or whether ‘‘cruel and unusual’’ is one proscription. Each of these ambiguities contributes to an enormous jurisprudential uncertainty surrounding the cruel and unusual punishment clause.

In addition, the death penalty has been treated differently from all other punishments, resulting not just in special rules for Capital Punishment but a schism in the overall approach of the Supreme Court to capital and noncapital forms of punishment. Arguably, the Supreme Court has largely abdicated its role in determining the bounds of nondeath penalty punishments, while simultaneously adding so many limits to the application of the death penalty as to be gradually rendering it, although constitutional in theory, unconstitutional in practice.

Despite the confusion surrounding Eighth Amendment jurisprudence, it is possible to identify four types of challenge that could be made to the constitutionality of a given criminal sentence. Constitutional challenges can be made as to: first, the type of punishment inflicted; second, the process followed in imposing the punishment; third, the category of crime to which a punishment may attach; and fourth, the categories of defendant against whom a punishment can be imposed. However, because of the ‘‘death is different’’ jurisprudence, the rules of each of these four types of challenge are bifurcated according to whether the punishment is death or some other sentence.

Types of Punishment

Supreme Court precedent as to which types of punishment are constitutional has taken two forms: specific sanctions or prohibitions of particular types of punishment, and general doctrine promulgating guidelines as to when punishments can ever be appropriate.

Of the specific rulings, the most contested concerns the constitutionality of the death penalty. As is discussed in the subsequent subsections, the death penalty has been highly restricted as to when and to whom it can apply, but imposition of the death penalty per se was upheld under the Federal Constitution in Gregg v. Georgia.

Generally, the Supreme Court has refrained from ruling on whether particular forms of Capital Punishment are unconstitutional. Four types of Capital Punishment have been sanctioned to the extent that the Supreme Court has refused to prohibit them when the issue came before it. In Wilkinson v. Utah, death by shooting was authorized; in Gomez v. U.S., use of the gas chamber was allowed; in Glass v. Louisiana, use of the electric chair was permitted; and in Campbell v. Wood, death by hanging was tolerated. However, the latter three cases contained only cursory consideration of the type of punishment by the majority, but strong dissents on point.

Historically, a variety of forms of corporal punishment were occasionally used in the colonies, including lashing, branding, and even ear-cropping and tonguecutting. Various forms of physical humiliation, such as stocks and the Scarlet letter, were more commonly used. Two key cases have held nondeath penalty punishments unconstitutional. Weems v. U.S. held that a lengthy punishment including hard labor in stocks, combined with the loss of basic rights, including over property and voting, was excessive for the crime of falsifying records. Trop v. Dulles held that denationalization for military desertion was cruel and unusual.

The Supreme Court has gone back and forth as to whether these cases constituted a general requirement of proportionality in nondeath penalty sentences. In Rummel v. Estelle, the court considered that there is no proportionality test: the punishment in Weems was excessive because of the combination ofx punishments. But in Harmelin v. Michigan, Justice Kennedy’s concurrence suggested a grossly disproportionate test exists, and this has since been adopted by the Supreme Court in Lockyer v. Andrade, although the court stressed it was only applicable in extreme and rare cases. Of particular note, exceptionally long punishments, including multiple life sentences, can be imposed even for relatively minor offences if defendants have prior felony convictions.

The use of corporal punishment and more torturous forms of Capital Punishment have been discontinued, but most of this change has not come through judicial decisions, but rather through social change and legislative rejection. Although the Supreme Court has disallowed few types of punishment, it has constitutionally enshrined societal rejection of the application of the death penalty to certain types of crime and categories of defendant, as well as closely monitoring the process by which the death penalty is imposed.

Proper Procedure in Death Penalty Legislation

Unlike the high level of deference given to the states in imposing nonCapital Punishments, the Supreme Court has actively developed detailed procedural requirements that must be satisfied for death penalty legislation to withstand scrutiny. Death penalty jurisprudence is divided into two eras: ‘‘pre-Furman’’ and ‘‘post-Furman.’’ In 1972, in Furman v. Georgia, the Supreme Court ruled that the death penalty as it was then implemented was unconstitutional because of its discretionary nature and its indeterminate and haphazard application, which rendered it arbitrary, and thus cruel and unusual.

A national four-year hiatus on Capital Punishment followed Furman, but in that period thirty-five states and Congress reinstated the death penalty in new statutes that attempted to meet the Supreme Court’s procedural requirements. The Supreme Court again addressed the constitutionality of the death penalty in 1976 in Gregg v. Georgia. The Georgia Act at issue in the case provided a list of aggravating and mitigating circumstances that could be found by a jury or a judge, in a trial with separate stages for guilt and Sentencing determinations, and provided for the possibility of higher court review. These clear processes satisfied the Court, although Justices Brennan and Marshall vigorously dissented, arguing that the death penalty is per se unconstitutional.

Since 1976, imposition of the death penalty has been permissible; however, the Court has continued to add procedural hurdles to the process. Woodson v. North Carolina held that the death penalty cannot be a mandatory punishment for a crime. Lockett v. Ohio held that a sentencer must consider a range of mitigating factors, including the defendant’s age, character, and record, and the circumstances of the offence. Beck v. Alabama held that the jury must have the option of considering a verdict of a lesser, noncapital offense. Most of these developments have been prodefendant, although not all: for instance, Payne v. Tennessee ruled that it is now permissible to have victim impact statements given during the Sentencing phase.

In addition to these specific procedural restrictions, the death penalty can only be imposed in ways that are proportionate and conform to recognized societal evolving standards of decency. These two requirements have provided the basis for restrictions on when and to whom the death penalty can apply.

Categories of Crime

Historically, the death penalty could be applied as punishment for a variety of crimes. It had previously been upheld as fit punishment for murder, rape, attempted rape, arson, assault, kidnapping, and robbery. However, starting in 1977 in Coker v. Georgia, the Supreme Court began applying the evolving standards of decency doctrine, which it developed in Trop v. Dulles, to death penalty jurisprudence. Noting that eighteen states had made rape a Capital Punishment prior to the Furman ruling, the Court emphasized that only three states had reinstituted the death penalty for rape by 1977, and two of those states only imposed the death penalty when the victim was a child. On this basis, as well as an assessment of proportionality that showed that the punishment was excessive, the Court ruled that imposing the death penalty for rape of an adult woman is unconstitutional.

In that case, Chief Justice Burger in dissent and Justice Powell in concurrence strongly criticized the majority holding on a number of fronts. First, since the death penalty moratorium had only been lifted the previous year in Gregg, it could not safely be concluded that legislatures had time to express their community standards in new legislation. Second, Coker was a recidivist rapist and murderer who had escaped from prison, then committed armed robbery, theft, kidnapping, and rape. Even if society considers the death penalty for rape generally disproportionate, it may not do so for a repeat felon for whom no other punishment would be effective: a recidivist serving a life sentence who would otherwise be in no way deterred from committing further rapes when he escapes again, or even within prison. Third, the majority based its finding on indications that society found the death penalty unacceptable when imposed for rape without aggravating brutality, but it was not clear that society found the death penalty disproportionate for all rapes. As such, the ruling was unnecessarily broad.

This division on the Court, between Justices willing to make broad findings of community consensus against imposition of the death penalty for a variety of crimes and those seeking stronger evidence of a clearer and more specific national consensus before constitutionally enshrining it, continues today. Nevertheless, the evolving standards doctrine has been used to rule the death penalty inapplicable for felony- murder without intent to kill in Enmund v. Florida, and for ‘‘ordinary’’ murder in Godfrey v. Georgia. Today, the death penalty can only be applied for murder with aggravating circumstances.

The only significant restriction on the categories of crime for which nonCapital Punishments can be imposed is that sentences cannot be imposed for a person’s status of being. This includes, for example, being a drug addict or an alcoholic, or suffering from a disease. It is unconstitutional to punish someone for who they are rather than for an act that they have committed.

Categories of Defendants

The evolving standards doctrine and the proportionality test have both been used in similar fashion to restrict the application of the death penalty to certain categories of defendants. Ford v. Wainwrightxx prohibited execution of offenders who are insane at the time of the proposed execution. Atkins v. Virginia proscribed execution of the mentally retarded. This case reversed the 1989 ruling in Penry v. Lynaugh, on the basis that an additional sixteen states had discontinued the practice since then, when only two states had exempted the mentally retarded. In 1981, Stanford v. Kentucky held that execution of minors was not cruel and unusual, but in 1988, Thompson v. Oklahoma held that execution of those sixteen and younger was unconstitutional, and in 2005 in Roper v. Simmons, the Supreme Court held that execution of anyone younger than eighteen is cruel and unusual.

Each of these decisions rested to a large extent on the fact that trends in state legislation were in the direction of the relevant limit on the death penalty in each case. However, it is unclear how many states are required to make the change before the Court will recognize an evolving national consensus. In addition, the Court is divided as to whether it only counts states that prohibit execution of the class of defendant or whether the Court also counts states that do not have the death penalty at all in their tally of states that consider execution of the given class of defendant cruel and unusual.

Two other doctrines on which these cases rested remain equally unsettled: First, the majorities in Atkins and Roper each also relied on notions of culpability and proportionality, arguing that juveniles, like the mentally retarded, are incapable of adequately controlling their impulses or comprehending the criminal process and thus are less responsible and less able to mount an effective defense. But Chief Justice Rehnquist and Justices Scalia and Thomas rejected the applicability of these doctrines, arguing evolving standards should be the only basis of challenging the death penalty. Second, in the Roper case, Justice Kennedy’s Opinion of the Court also gave consideration to the views of the international community. Although these views were considered only persuasive, and not authoritative, this move was enormously controversial, with elected representatives going so far as to propose impeaching judges who cite such evidence in future cases.

Conclusion

There are many areas of debate and doctrinal uncertainty in death penalty jurisprudence; nevertheless, the Supreme Court is continuing to develop numerous restrictions on the application of the death penalty, without fully resolving these ambiguities. In contrast, Eighth Amendment jurisprudence relating to noncapital offenses is marked by Supreme Court inaction. Given the result in Lockyer, when the Supreme Court upheld multiple life sentences for minor offences under the ‘‘three strikes’’ law, it seems unlikely that this strongly deferential approach will change in the near future. As such, we can expect to see an increased cabining of cruel and unusual punishment jurisprudence to an almost exclusive focus on limiting the circumstances in which Capital Punishment can be imposed.

TONJA JACOBI

References and Further Reading

Berkson, Larry Charles. The Concept of Cruel and Unusual Punishment, 1975.

Coyne, Randall, and Lyn Entzeroth. Capital Punishment and the Judicial Process, 1994.

Foley, Michael A. Arbitrary and Capricious: the Supreme Court, the Constitution, and the Death Penalty, 2003.

Hoffman, Joseph L. ‘‘The ‘Cruel and Unusual Punishment’ Clause: a Limit on the Power to Punish or Constitutional Rhetoric?’’ In Bodehamer, David J., and James W. Ely, Jr. eds, The Bill Of Rights in Modern America, 1993.

Cases and Statutes Cited

• Atkins v. Virginia 536 U.S. 304 (U.S. 2002)
• Beck v. Alabama 447 U.S. 625 (U.S. 1980)
• Campbell v. Wood, 511 U.S. 1119 (U.S. 1994)
• Coker v. Georgia, 433 U.S. 584 (U.S. 1977)
• Enmund v. Florida, 458 U.S. 782 (U.S. 1982)
• Ford v. Wainwright, 477 U.S. 399 (U.S. 1986)
• Furman v. Georgia, 408 U.S. 238 (U.S. 1972)
• Glass v. Louisiana, 471 U.S. 1080 (U.S. 1985)
• Godfrey v. Georgia, 446 U.S. 420 (U.S. 1980)
• Gomez v. United States District Court, 503 U.S. 653 (U.S. 1992)
• Gregg v. Georgia, 428 U.S. 153 (U.S. 1976)
• Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991)
• Lockett v. Ohio, 438 U.S. 586 (U.S. 1978)
• Lockyer v. Andrade, 538 U.S. 63 (U.S. 2003)
• Marbury v. Madison, 5 U.S. 137(1803)
• Payne v. Tennessee, 501 U.S. 808 (U.S. 1991)
• Penry v. Lynaugh, 492 U.S. 302 (U.S. 1989)
• Roper v. Simmons, 125 S. Ct. 1183 (U.S. 2005)
• Rummel v. Estelle, 445 U.S. 263 (U.S. 1980)
• Stanford v. Kentucky, 492 U.S. 361 (U.S. 1981)
• Thompson v. Oklahoma, 487 U.S. 815 (U.S. 1988)
• Trop v. Dulles, 356 U.S. 86 (U.S. 1958)
• Weems v. U.S., 217 U.S. 349 (1910)
• Wilkerson v. Utah, 99 U.S. 130 (1879)
• Woodson v. North Carolina, 428 U.S. 280 (U.S. 1976)