Cruel And Unusual Punishment

Cruel and Unusual Punishment in the United States

A criminal penalty prohibited by the Eighth Amendment. Cruel and unusual punishment standards have been drawn from evolving standards of decency. The status of a particular punishment may change as society’s values change. …(T)he Supreme Court has said that punishments that involve torture or cruelty are prohibited, as are punishments that are degrading. Neither can a penalty be imposed on a status or condition. In 1962, the Supreme Court considered whether a state could impose a 90-day jail sentence for the crime of narcotics addiction. The Court ruled in Robinson v. California (370 U.S. 660) that while a 90-day sentence was not cruel in an abstract sense, it was cruel given the “crime.” The Court regarded Robinson’s addiction as an illness, and said the sentence was analogous to punishing someone for having any other kind of disease. Punishments must also be “proportional” to the offense. They cannot be excessive. The proportionality criterion applies to both capital and noncapital cases when sentences are challenged as cruel and unusual.

See Also

Sentence (Criminal Process).

Analysis and Relevance

The cruel and unusual punishment doctrine holds that punishments must “comport with human dignity.” The death penalty, a punishment unique in terms of its severity and irrevocability, does not invariably offend the cruel and unusual punishment prohibition. Procedural flaws may make the imposition of the death penalty impermissible, however. The Court ruled in Furman v. Georgia (408 U.S. 238: 1972) that punishments imposed in an unstructured or arbitrary manner are cruel and unusual as a result. Following Furman, 37 states modified their capital punishment laws to address the defects discussed in the decision. The death sentence now may not be imposed without a two-stage or bifurcated trial and sentencing process. The sentencer must be provided with sufficient guidance for making a determination of death. He or she must specify aggravating circumstances in assessing the gravity of a particular offense, and the sentencer must consider any and all mitigating circumstances. The mandatory sentence of death is not permitted because it does not allow for consideration of mitigating factors. The proportionality principle has been applied to various capital crimes with the result that unless a life is taken, the death penalty is an excessive or disproportionate response. The Court has also held that the death penalty cannot be imposed on persons who were under the age of sixteen at the time the crime was committed. Existence of a developmental disability, on the other hand, does not necessarily preclude imposition of the death penalty. The last broadly focused cruel and unusual punishment challenge to the death penalty occurred in 1987 when the Court reviewed evidence that whites are less likely to receive the death sentence than racial or ethnic minorities. The Court ruled in McCleskey v. Kemp (481 U.S. 279: 1987) that sentencing systems did not violate constitutional commands absent a demonstration of discriminatory intent.

Notes and References

  1. Definition of Cruel and Unusual Punishment from the American Law Dictionary, 1991, California

The Prohibition against Cruel and Unusual Punishment Explained


See Also

  • Criminal Law
  • Criminal Procedure


See Also

  • Legal Topics.
  • Capital Punishment: Legal Aspects; Corporal Punishment; Prisoners, Legal Rights of; Punishment; Shaming Punishments.

    Capital Punishment; Eighth Amendment; Fourteenth Amendment.

    Capital Punishment; Determinate Sentence; Juvenile Law; Sentencing.

    Further Reading (Books)

    Dressler, Joshua. “Kent Greenawalt, Criminal Responsibility, and the Supreme Court: How a Moderate Scholar Can Appear Immoderate Thirty Years Later.” Notre Dame Law Review 74 (1999): 1507-1532.

    Granucci, Anthony F. “Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning.” California Law Review 57 (1969): 839-865.

    Greenawalt, Kent. “Uncontrollable’ Actions and the Eighth Amendment: Implications of Powell v. Texas.” Columbia Law Review 69 (1969): 927-979.

    Note. “The Cruel and Unusual Punishment Clause and the Substantive Criminal Law.” Harvard Law Review 79 (1966): 635-655.

    Further Reading (Articles)

    Cruel and Unusual Punishment (Update 1), Encyclopedia of the American Constitution; January 1, 2000

    A Bill of Rights Is Needed to Prevent Cruel and Unusual Punishment, The Bill of Rights 1; January 1, 2005

    Executing Mentally Retarded Persons Is Cruel and Unusual Punishment, The Bill of Rights 1; January 1, 2005

    Cruel, unusual punishment OK for victim of Morales, Oakland Tribune; February 18, 2006

    cruel and unusual punishments, The New York Public Library Book of Popular Americana; January 1, 1994; Tad Tuleja

    CRUEL AND UNUSUAL PUNISHMENT DOESN’T APPLY TO FETUSES.(Opinion), The Wisconsin State Journal (Madison, WI); November 24, 1996

    Heiple suffers cruel, unusual punishment, Chicago Sun-Times; February 3, 1997


    Method called cruel, unusual punishment.(News), Rocky Mountain News (Denver, CO); September 20, 2007

    Diaz leaves bench with call to end death penalty — Says it’s cruel, unusual punishment, The Commercial Appeal (Memphis, TN); December 21, 2008; Jack Elliott Jr

    Chaining Jim Bakker at trial is cruel, unusual punishment, Chicago Sun-Times; September 13, 1989

    Lawsuit demands care for mentally ill incarcerated veterans Case alleges cruel, unusual punishment.(News), Rocky Mountain News (Denver, CO); February 24, 2007; Imse, Ann

    New Debate About an Old Killer; Foes of Electric Chair Say Florida Engages in Cruel, Unusual Punishment, The Washington Post; August 26, 1999; Sue Anne Pressley

    Cruel and Unusual Punishment, Encyclopedia of the American Constitution; January 1, 2000

    The Supreme Court Expands the Definition of Cruel and Unusual Punishment, The Bill of Rights 1; January 1, 2005

    Supreme Court Outlaws Ala. Prison Punishment; Justices Rule Chaining Misbehaving Prisoners to Outdoor ‘Hitching Posts’ Is Cruel, Unusual, The Washington Post; June 28, 2002; Mark Niesse

    Is any sentence cruel and unusual punishment?(California), Trial; May 1, 2003; Chemerinsky, Erwin

    Cruel and unusual history Capital punishment, International Herald Tribune; May 6, 2008; Gilbert King The New York Times Media Group

    Profile: Supreme Court to hear arguments in case testing whether Alabama prison hitching posts are cruel and unusual punishment, NPR Morning Edition; April 17, 2002; BOB EDWARDS

    Cruel and unusual punishment.(prisoner litigation)(Brief Article), Corrections Caselaw Quarterly; November 1, 2001

    Cruel And Unusual Punishment: Open and Free Legal Research of US Law

    Federal Primary Materials

    The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Cruel And Unusual Punishment. This part provides references, in relation to Cruel And Unusual Punishment, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

    Federal primary materials about Cruel And Unusual Punishment by content types:

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    US Constitution
    Federal Statutory Codes and Legislation

    Federal Case Law and Court Materials

    U.S. Courts of Appeals
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    Federal Administrative Materials and Resources

    Presidential Materials

    Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

    Executive Materials

    Federal Legislative History Materials

    Legislative history traces the legislative process of a particular bill (about Cruel And Unusual Punishment and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Cruel And Unusual Punishment or other topics), or locating the current status of a bill and monitoring its progress.

    State Administrative Materials and Resources

    State regulations are rules and procedures promulgated by state agencies (which may apply to Cruel And Unusual Punishment and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Cruel And Unusual Punishment. Finding these decisions can be challenging. In many cases, researchers about Cruel And Unusual Punishment should check state agency web sites for their regulations, decisions, forms, and other information of interest.

    State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

    State opinions of the Attorney General (official written advisory opinions on issues of state law related to Cruel And Unusual Punishment when formerly requested by a designated government officer):

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