Cruel and Unusual Punishment Generally

The Eighth Amendment to the U.S. Constitution provides that ‘‘Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’’ The U.S. Supreme Court has worked for the past century to define the phrase ‘‘cruel and unusual punishments.’’ At its inception, the phrase was meant to place some restriction on the types of punishments permitted in the context of criminal offenses, specifically prohibiting tortuous and barbaric punishments. However, over the years it has been interpreted to apply not only to the methods of punishment permitted, but also to the proportionality and implementation of punishments.

History of Cruel and Unusual Punishment Clause

The first prohibition against tortuous and barbarous punishments was written into American law in 1641 in a document entitled ‘‘Body of Liberties,’’ which was enacted in the Colony of Massachusetts. Nearly fifty years later, the phrase ‘‘cruel and unusual punishments’’ appeared in the English Declaration of Rights of 1688, ratified by William and Mary. The clause was later incorporated verbatim into the Virginia Declaration of Rights of 1776 and in substantially similar form in the Eighth Amendment to the U.S. Constitution in 1791.

When the Cruel and Unusual Punishments clause of the Eighth Amendment was adopted, its full meaning was unclear. However, state and federal courts alike originally interpreted the Clause to prohibit certain methods of punishment that were deemed to be tortuous or barbaric. In 1892, the U.S. Supreme Court first indicated that the Clause might be construed not only as a barrier to certain tortuous or barbaric punishments but also to punishments that were excessive under the circumstances. In 1910, a slim majority of the Supreme Court held that that the Cruel and Unusual Punishments clause should be expanded to include disproportionate punishments. The defendant in the case at issue was convicted under a statute that required a sentence of fifteen years at hard labor for anyone convicted of making a false entry in a government payroll book. Although the punishment was not cruel and unusual per se, it violated the Eighth Amendment in that case because it was grossly disproportionate to the crime of forging public records.

There were no other significant applications of the Clause until 1958, when the Supreme Court decided Trop v. Dulles. At issue in that case was whether expatriation was a cruel and unusual punishment for the crime of military desertion. The Supreme Court found that the extreme punishment of expatriation, which involves the ‘‘total destruction of the individual’s status in organized society,’’ constituted cruel and unusual punishment. In Trop v. Dulles, the court first developed the concept of ‘‘evolving standards of decency.’’ Under this theory, the Eighth Amendment is deemed to draw its meaning from ‘‘the evolving standards of decency that mark the progress of a maturing society.’’ Four years later, the Supreme Court held in another landmark case that it is cruel and unusual to make drug addiction a criminal offense.

The next significant Supreme Court decision regarding the Cruel and Unusual Punishments clause occurred in 1972, when the court declared that all existing Capital Punishment statutes violated the Eighth Amendment. Although the court did not hold that the death penalty was cruel and unusual per se, it declared that the imposition of the death penalty through the existing statutes violated the Eighth Amendment because death sentences were being imposed in an ‘‘arbitrary and capricious’’ manner. In 1976, the Supreme Court reviewed newly drafted death penalty statutes from Georgia, Florida, and Texas and upheld the statutes against Eighth Amendment challenges, because the statutes provided juries with sufficient guidance in the decision-making process and permitted individualized Sentencing for each defendant. Since 1976, a majority of the Supreme Court has upheld the death penalty against per se Eighth Amendment challenges but has declared that the application of the death penalty is cruel and unusual in cases involving the rape of an adult woman, insane defendants, mentally retarded defendants, and defendants who were younger than eighteen at the time the crime was committed.

Although death penalty cases make up the majority of Cruel and Unusual Punishment claims, the Supreme Court has also applied the Clause to prison conditions and treatment of prisoners and to repeat offender statutes, often referred to as ‘‘three strikes’’ laws.

Evolving Standards of Decency

As early as 1910, the Supreme Court recognized the progressive nature of the Eighth Amendment when it indicated that the Amendment ‘‘may acquire meaning as public opinion becomes enlightened by a humane justice.’’ In 1958, the Supreme Court affirmatively held that the interpretation of what constitutes ‘‘cruel and unusual’’ punishment changes over time, because it is judged by the ‘‘evolving standards of decency that mark the progress of a maturing society.’’

The Supreme Court has indicated that the determination of current societal standards of decency should be guided by objective factors to the maximum extent possible. In the context of death penalty claims, such factors include state and federal legislation, jury verdicts, and national and international views. Although there is much disagreement regarding the role that international views should play in a constitutional analysis, some of the SupremeCourt justices have indicated that international opinion, although in no way binding on the Court, should be considered in some manner as part of a societal standard of decency analysis.

In addition to the objective factors, the Court also applies its own judgment to determine whether a particular punishment contributes to an accepted Sentencing goal or whether it is nothing more than the needless imposition of pain and suffering. In the context of capital cases, the Court determines whether the punishment of death effectively contributes to either deterrence or retribution.

The Cruel and Unusual Punishments clause is unique in that it has been interpreted to change over time, unlike other Constitutional provisions. As society develops and matures over time, it is certain to maintain its pivotal role in the evolution of the American criminal justice system.

JUDITH M. BARGER

References and Further Reading

• Bukowski, Jeffrey D., The Eighth Amendment and Original Intent: Applying the Prohibition Against Cruel and Unusual Punishments to Prison Deprivation Cases is Not Beyond the Bounds of History and Precedent, Dick. L. Rev. 99 (1994): 419.
• Furman v. Georgia, 408 U.S. 238 (1972).
• Granucci, Anthony F., Nor Cruel and Unusual Punishments Inflicted:’’ The Original Meaning, Cal. L. Rev. 57 (1969): 839. Gregg v. Georgia, 428 U.S. 153 (1976).
• Jurek v. Texas, 429 U.S. 262 (1976).
• Proffitt v. Florida, 428 U.S. 242 (1976).
• Trop v. Dulles, 356 U.S. 86 (1958).
• Varland, Brian W., Marking the Progress of a Maturing Society: Reconsidering the Constitutionality of Death Penalty Application in Light of Evolving Standards of Decency, Hamline L. Rev. 28 (2005): 311.
• Weems v. United States, 217 U.S. 349 (1910).

See also Capital Punishment and Sentencing; Trop v. Dulles, 356 U.S. 86 (1958)