Cruel and Unusual Punishment

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Cruel and Unusual Punishment

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 that is 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 U.S. 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. When an inmate does suffer serious injury from the excessive use of force by prison officials, a violation of the Cruel and Unusual Punishment Clause is clear. In Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L. Ed. 2d 666 (2002), the U.S. Supreme Court held that the Eighth Amendment had been contravened when prison officials had disciplined an inmate for disruptive behavior by handcuffing him to a "hitching post", once for two hours and once for seven hours, depriving the inmate of his shirt, exposing him to the sun, denying his requests for hydration, and refusing to allow him the opportunity to use the bathroom.

However, a defendant need not suffer actual physical injury or pain before a punishment will be declared cruel and unusual. In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the U.S. 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 U.S. 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]). Federal and state courts have upheld modern methods of carrying out the death penalty, such as shooting, hanging, electrocution, and lethal injection, as constitutional. The U.S. 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 death penalty upon a prisoner who is insane.

The Court has also ruled that execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court in Atkins stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

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 U.S. 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 upon 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 in the amount of $100. Although this crime ordinarily would 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 that it was thus prohibited by the Eighth Amendment.

The U.S. Court of Appeals for the Ninth Circuit applied the proportionality analysis in overturning the life sentence of a defendant who had been convicted under California's "threestrikes" law, which requires that courts impose harsh sentences upon defendants who have been convicted of three felonies. Cal. Penal Code Section 667. In Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002), the defendants were charged with misdemeanor petty theft for stealing three videotapes and a steering wheel alarm, together worth less than $400.00. However, because both defendants had two prior felony convictions involving violent crimes, the misdemeanor petty theft charges were enhanced and prosecuted as felonies. The Ninth Circuit ruled that the defendants' sentences constituted cruel and unusual punishment, for the trial court was effectively imposing life sentences for what was the legislature classified as a misdemeanor under any other circumstances.

The U.S. Supreme Court granted certiorari, reversed, and remanded the case with instructions for the Ninth Circuit to reconsider its decision in light of Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 144 (2003), where the Court ruled that the Eighth Amendment's proportionality principle was not violated by the imposition of two 25-years-to-life sentences under the California Three Strikes law, on a conviction of two counts of petty theft with a prior conviction. The defendant in Andrade had been convicted of stealing videotapes worth $153.54.

Is Death by Electrocution Cruel and Unusual under Evolving Standards?

Convicted killer Kenneth Spivey's attorneys argued that Spivey's impending death in Georgia's electric chair constituted cruel and unusual punishment under the Eighth Amendment and the Fourteenth Amendment to the Constitution of the United States. In a March 2001 opinion that initially stayed s punishment, Justice Leah J. Sears wrote, "Electrocution offends the evolving standards of decency that characterize a mature, civilized society." Spivey v. State of Georgia, 544 S.E. 2d 136 (Ga. 2001). Georgia's attorney general and a county prosecutor asked the court for reconsideration. In October of the same year, the Georgia Supreme Court outlawed electrocution as a means of execution in the state because it was deemed cruel and unusual punishment under the state constitution and because of the implications of the state's year 2000 revised Capital Punishment statute (Dawson v. State of Georgia, 554 S.E. 2d 137 [Ga. 2001]). The 4–3 ruling gave momentum to the movement against death by electrocution elsewhere, but the U.S. Supreme Court continued to refuse appeals of this nature, leaving the decision in the hands of state courts and legislatures.

In early May 2001, several radio stations, including WYNC in New York, aired audiotapes of electrocutions in Georgia's prisons spanning a period from 1983 to 1998. The recordings were made by state officials to protect themselves from litigation over the manner in which they followed policies to ensure smooth executions. The tapes were devoid of emotion and merely recorded the voices of the executing officials during the process. There were no shouts or cries of pain, but several tapes contained the final words of the inmates. The tapes might support the argument that electrocution, when properly conducted, is as humane as other alternatives.

Dr. Chris Sparry, Georgia's chief medical examiner, who has testified on the matter, stated:

The best evidence that exists to indicate that people who are judicially executed never feel any conscious pain or suffering rests in the tens of thousands of people who have sustained accidental electrocutions and have survived. None of those people can even remember the event if the current goes through their head …consciousness is obliterated instantly when the current is passed through the body because the amount of the current is so very, very great.

Georgia was one of four states still employing the use of electric chairs for execution of condemned criminals, although both Georgia and Florida changed their primary means of execution to lethal injection for the newly-convicted starting in 2000. Nebraska and Alabama continue to use their electric chairs as the sole means of execution although both states have considered legislation to allow lethal injection as well.

In an April 2001 Gallup poll, roughly two of every three surveyed Americans said they favored the death penalty. Despite some of the media's characterization of declining support, the percentage remained consistently above 60 percent for at least the preceding five years. The all-time high for supporting capital punishment was in 1994 at 80 percent; the low of 42 percent was in 1966. The manner by which execution is accomplished is a different matter toward which there is growing sensitivity.

In many states, condemned persons are given the opportunity to elect the method by which they will die. Some Americans bristle at the thought that "humane consideration" should be given to those who have wreaked heinous inhumanity upon others. There remains a palpable undercurrent of opinion/attitude that execution should hurt, not only because it may serve to deter future wrongdoers but also because of the belief that death is intended as a punishment, not an escape.

Still, as of spring 2001, 36 of the 38 states with death penalty laws employed lethal injection as the preferred method. With lethal injection, the victim is first put to sleep with sodium pentothal, after which other drugs are administered to paralyze the body and stop the heart. The person never regains consciousness.

The U.S. Supreme Court has provided guidance as to what should constitute cruel and unusual punishment under the Eighth Amendment, but made it clear that the standards must be evolving and dynamic. "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, emboweling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution," the Court said, more than 100 years ago, in Wilkerson v. Utah,99 U.S. 130, 25 L. Ed. 345 (1878), which upheld an execution by firing squad. Twelve years later, in In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890), the Court, under the Fourteenth Amendment's due process clause, found electrocution to be a permissible method of execution. Moreover, in assuming the applicability of the Eighth Amendment to the States, the Court, many years later, held that a second electrocution, resulting from the failure of the first one, did not violate the proscription. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely," the majority opinion stated. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 916 L. Ed. 422 (1947).

In Trop v. Dulles 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the Supreme Court, in referring to the United States as "an enlightened democracy," held that "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." That language was repeated again in Gregg v. Georgia428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1978), wherein the Court noted that the Eighth Amendment was to be interpreted "in a flexible and dynamic manner to accord with evolving standards of decency." Most likely, this is the language from which the Georgia Supreme Court formed their ultimate Spivey ruling. The U.S. Supreme Court, on the other hand, denied certiorari to an appeal challenging Alabama's use of the electric chair and had not ruled against electrocution as of the end of the 2003 term.

Further readings

Harry, Jennifer L. 2000. "Death Penalty Disquiet Stirs Nation." Corrections Today (December).

Macready, Dawn. 2000. "The 'Shocking' Truth about the Electric Chair: An Analysis of the Unconstitutionality of Electrocution." Ohio Northern University Law Review 26 (summer).

Roy, Patricia. 2002. "Not So Shocking: The Death of the Electric Chair in Georgia at the Hands of the Georgia Supreme Court." Mercer Law Review 53 (summer).

Weinstein, Bob, and Jim Bessant. 1996. Death Row Confidential. New York: HarperPaperbacks.


Capital Punishment; Eighth Amendment; Fourteenth 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 may not 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 them. 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, impris onment 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.

Further readings

Denno, Deborah W. 2000. "Adieu to Electrocution." Ohio Northern University Law Review 26 (summer): 665–88.

Harding, Roberta M. 1994. "'Endgame': Competency and the Execution of Condemned Inmates—A Proposal to Satisfy the Eighth Amendment's Prohibition against the Infliction of Cruel and Unusual Punishment." St. Louis University Public Law Review 14.

LaFave, Wayne R., and Austin W. Scott Jr. 1986. Substantive Criminal Law. St. Paul, Minn.: West.

Macready, Dawn. 2000. "The 'Shocking' Truth About the Electric Chair: An Analysis of the Unconstitutionality of Electrocution." Ohio Northern University Law Review 26 (summer): 781–800.

Nelson, Diane A. 1993. "Hudson v. McMillian: The Evolving Standard of Eighth Amendment Application to the Use of Excessive Force Against Prison Inmates." North Carolina Law Review 71 (June).


Capital Punishment; Determinate Sentence; Juvenile Law; Sentencing.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

cruel and unusual punishment

n. governmental penalties against convicted criminal defendants which are barbaric, involve torture and/or shock the public morality. They are specifically prohibited under the Eighth Amendment to the U. S. Constitution. However, nowhere are they specifically defined. Tortures like the rack (stretching the body inch by inch) or the thumbscrew, dismemberment, breaking bones, maiming, actions involving deep or long-lasting pain are all banned. But solitary confinement, enforced silence, necessary force to prevent injury to fellow prisoners or guards, psychological humiliation, and bad food are generally allowed. In short, there is a large gray area, in which "cruel and unusual" is definitely subjective based on individual sensitivities and moral outlook. The U. S. Supreme Court waffled on the death penalty, declaring that some forms of the penalty were cruel and prohibited under the Furman case (1972), which halted executions for several years, but later relaxed the prohibition. The question remains if the gas chamber, hanging, or electrocution are cruel and unusual. Cruel, certainly, but hanging was not unusual at the time the Bill of Rights was adopted. (See: capital punishment)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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