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Protection from Cruel and Unusual Punishment

See Also:


The stage following conviction in a criminal case when the defendant appears in court so that punishment may be imposed.

Capital Punishment:
Punishment by death. Capital punishment is not necessarily cruel and unusual, though it may be.

Corporal Punishment:
Any sort of punishment inflicted on the body, as distinguished from a pecuniary fine. Corporal punishment is not necessarily cruel and unusual, though it may be.

Despite the appearance of the Sixth Amendment in the title of this Chapter, we have already seen that some rights at trial – namely, the right to a presumption of innocence and the burden of proof imposed on the prosecution – stem from elsewhere in the Constitution. The Eighth Amendment states that there shall be no “cruel and unusual punishments inflicted.” This requires extensive interpretation and elaboration by the courts.

A punishment is “cruel and unusual” when it is grossly disproportionate to the crime for which it is meted out. See Coker v. Georgia, 433 U.S. 584. So, if a Defendant is sentenced to years of hard labor for falsifying public records, the punishment might well run afoul of the Eighth Amendment. See Weems v. United States, 217 U.S. 349 (1910).

EXAMPLE (1): Frank and Jesse are pranksters who enjoy giving people a fright. One day, they stage a fake fight in a public building during which Frank makes it appear that he has killed Jesse. While wrestling, one of the boys accidentally bumps into the elderly Mrs. Crane. Mrs. Crane is uninjured, but the boys are arrested for battery (“the unwanted touching of another”). Judge Stone decides to make an example of the two. He sentences the boys to a juvenile detention center until they reach the age of majority, and then to be transferred to prison for a period of 7 years. The punishment would likely meet the definition of “cruel and unusual” in the Eighth Amendment and thus be reversed.

EXAMPLE (2): Instead of a prank, suppose that the fight between Frank and Jesse is staged as a distraction so that their accomplice, Roland, can commit armed robbery of the bank, which is in the lobby of the building. During the robbery, Roland inadvertently fires his gun and severely injures Mrs. Crane’s young daughter. Roland escapes, but Frank and Jesse are caught. If now sentenced as above, there would likely not be any Eighth Amendment concern.

There is no set standard for determining what constitutes "cruel and unusual punishment." Instead, the concept is pliable and can change as society changes, generally broadening so that more and more forms of punishment that were once acceptable now fall into the realm of “cruel and unusual.” See Holt v. Sarver, 309 F.Supp. 362 (E.D. Ark. 1970). According to C. L. Ten in Crime, Guilt, and Punishment, Oxford University Press (1987), in theory

“punishment acts as a deterrent to crime…punishment is supposed to have reformative or rehabilitative effects…[and] the third good consequence of punishment is its incapacitative effect."

So, it stands to reason that the amount of punishment necessary to deter crime and incapacitate criminals, as well as the optimal level of punishment believed necessary to rehabilitate criminals, will change over time. Ten and other academics have often questioned the extent to which punishment actually accomplishes the stated goals of deterrence or reform, and, as societal views change, so will the interpretation given to the words “cruel and unusual punishment” found in the Eighth Amendment.

Thirty years ago, the United States Supreme Court held that the death penalty, as it was then administered, was cruel and unusual. See Furman v. Georgia, 408 U.S. 238 (1972). Justice Brennan wrote in his concurring opinion, that

“[t]he primary principle [in determining whether a punishment is cruel and unusual in violation of the Eighth Amendment] is that a punishment must not be so severe as to be degrading to the dignity of human beings."
Furman, at 271. This cannot be taken as the absolute standard for what is cruel and unusual, however, as it is not part of a majority opinion in the case. In fact, there was no majority opinion written, but rather five concurring opinions and three dissenting opinions in that case. So, while the outcome was agreed upon by a majority of the court, even in Furman, we are not provided with a clear standard that can be applied with total confidence.

Justice Douglas wrote that the Eighth Amendment requires

“legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.” Furman, at 256.

So, in addition to the prohibition against the punishment being disproportionate to the crime, the application of punishments could also raise Eighth Amendment concerns.

[Note, however, that four years later, the Supreme Court ruled that the death penalty was not, per se, unconstitutional. See Gregg v. Georgia, 428 U.S. 153 (1976).]

Certainly, the prohibition against cruel and unusual punishment is one of the more controversial issues we have addressed in these chapters on Criminal Procedure. It is also one of the less certain areas of the law when it comes to tough cases. Fortunately, it is also the area that you are least likely to encounter in practice, because, while the tough cases raise difficult issues of social and moral concerns, most cases are not difficult. As the Court, in Robinson v. California, put it,

“It is unlikely that any State at this moment would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be inflicted with a venereal disease…But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease [and therefore inflicted punishment on those committing the offense] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eight and Fourteenth Amendments.”

Robinson v. California, 370 U.S. 660, 666 (1962). The Robinson Court held that it is a violation of the "Cruel and Unusual Punishment" Clause of the Eighth Amendment to punish a status (e.g., making it a crime to be an alcoholic), as opposed to an act, which, of course, can be punished.

EXAMPLE (1): The traditionally conservative legislature of the state of Massahampshire passes a law making it a criminal offense to primarily use one’s left hand for writing or other similar acts. The punishment for engaging in left-handed behavior is 5 hours of community service to be completed within on year’s time. Although the punishment itself is not severe, this would not pass muster using the Robinson rule.

EXAMPLE (2): The easy-going state of Orefornia is having trouble with the rapid spread of venereal diseases. Although HIV/AIDS is on the decline, other diseases are on the rise. The legislature passes a law making it illegal to contract any venereal disease, and the penalty for such an offense is attendance at a 3-hour educational seminar. Again, this would be cruel and unusual punishment under Robinson.

EXAMPLE (3): Southstate has had problems with drunk drivers, and decides to pass a law requiring all drivers convicted of drunk driving to attend a mandatory 15-hour educational seminar held over a period of three days at the convicted driver’s expense. The course costs $650. Thirty years ago, such a punishment would have been considered absurd, as the crime of drunk driving was not then considered to be as serious or as dangerous as we now consider it to be. By today’s standards, the punishment does not seem to run afoul of Coker as it is not grossly disproportionate. Nor would Douglas or Brennan’s opinions in Furman indicate that the punishment is cause for concern. The sentencing rule will be upheld.

In Kennedy v. Louisiana, 54 U.S. 407 (2008), the U.S. Supreme Court held that a convicted felon could only be sentenced to death where the felon had taken the life of another individuals (or when the crime is against the state such as espionage or treason.).  There, a Louisiana court sentenced a convicted child rapist to death.  On certiorari, the U.S. Supreme Court held that the death penalty would have been cruel and unusual punishment.