Cruel and unusual punishment

SIGNIFICANCE: The U.S. Constitution prohibits cruel and unusual punishment, and the courts are responsible for interpreting the meaning of that provision.

The Eighth Amendment to the U.S. Constitution forbids the use of cruel and unusual punishments. The words are not complex, but exactly what they prohibit is not obvious. In 2004, much debate surrounded arguments about whether the death penalty violates the Eighth Amendment. Some legal scholars argue that the Eighth Amendment should be read to mean exactly what it meant to the founders and that they did not intend to restrict the use of death itself as a punishment.

Critics claim that capital punishment, because it treats a human life as disposable, is inherently cruel and therefore unconstitutional. Others look to the framers of the Constitution and assert that they had no qualms about capital punishment. They cite the Fifth Amendment’s guarantee that no one should be deprived of life, liberty, or property without due process of law. It is possible to read that guarantee as meaning that deprivation of life is permissible if due process has been followed. Likewise, the Fifth Amendment’s restriction on double jeopardy, providing that no one should twice be forced to risk life or limb, could imply that life is an acceptable stake if one only has to risk it once.

When the Constitution was written during the late eighteenth century, “cruel and unusual punishment” was a familiar phrase taken from the English bill of rights. Many states included similar wording in their constitutions. The terminology involved the ideas that punishments should be proportionate to crimes and that punishments not authorized by law were prohibited. The founding generation had vivid memories of gruesome punishments devised by kings for retribution against their enemies. The founders wished to avoid such creative use of unusual sanctions by placing the authority to codify crimes and punishments in the hands of the people’s representatives, the legislatures. In deciding how and when to apply the legislated punishments, the courts and the executive branch enjoyed wide latitude.

The Eighth Amendment could be read to forbid punitive measures that were unnecessarily painful or too oppressive. Exactly how those characteristics were to be defined was based on the notion that the sensibilities of a republic placed a high value on human dignity. In a society where all free citizens were believed to share inalienable rights, punishments should not purposely degrade but should be severe enough only to accomplish a social purpose.

Ultimately, the responsibility for defining “cruel and unusual” rests with the courts, especially the U.S. Supreme Court. For more than a century after the Constitution was written, the justices considered only a few cases that addressed the issue. The idea that the death penalty itself might be unconstitutional because it violated the Eighth Amendment was not brought before the Court until the middle of the twentieth century. The Court, for the most part, assumed that the forbidden cruel and unusual punishments were the obvious tortures and barbaric cruelties that offended modern, civilized communities. They did not need to rule that boiling in oil or drawing and quartering would not be permitted under the US Constitution. They did, however, rule that two less dramatic but still violent means of execution did not violate the Eighth Amendment.

Although hanging remained the most widely used form of capital punishment in the United States throughout the nineteenth century--by 2024, it was allowed only in New Hampshire--the leaders of the Utah Territory preferred death by firing squad. As the territory was settled, largely by Mormons who believed in blood atonement for the crime of murder, being shot by riflemen was considered more theologically correct than being swung from the gallows. Use of the firing squad was challenged as cruel and unusual punishment in Wilkerson v. Utah (1878). In that case, the Court ruled that shooting was a traditional method of execution, long favored by the military. Utah, Idaho, Mississippi, and Oklahoma still used multiple methods of execution including firing squad and lethal injection by 2024. South Carolina allowed executions by electric chair or firing squad.

Another innovation in capital punishment techniques came in 1890, when the Supreme Court decided that death by electrocution was not a violation of the Eighth Amendment. Its ruling in re Kemmler held that, even though no human being had yet been put to death in the electric chair, the method would produce “instantaneous, and therefore, painless death.”

Aside from recognizing that there were outer limits to the humane treatment of offenders, in the nineteenth century the Court avoided most discussion of capital punishment, believing its methods and application were matters for the individual states to decide.

Eighth Amendment Cases

In 1910, the Supreme Court made a significant Eighth Amendment ruling in a case that did not concern the death penalty. United States v. Weems involved an American official in the Philippines who was sentenced to fifteen years of hard labor for forging a minor document. Weems challenged his punishment as cruel and unusual, and the Court agreed, holding that the sentence was so disproportionate to the crime as to be a violation of Weems’s constitutional rights.

Almost a half century later, in Trop v. Dulles (1954), the justices revisited the Eighth Amendment and added the concept that cruel and unusual should be measured against contemporary public beliefs and attitudes. The case involved Army private Trop, who had left his unit for one day in 1944 during World War II. Trop thought better of going absent without leave and was voluntarily returning to his base when he was stopped by the military police. He was convicted of desertion, sentenced to three years at hard labor, and given a dishonorable discharge. Eight years later, when Trop applied for a passport, he learned that a dishonorable discharge for wartime desertion had resulted in the loss of his American citizenship. The Court examined the law that deprived a person of citizenship for desertion and found it unconstitutional. It spelled out one of the major premises of modern Eighth Amendment jurisprudence: It held that the words “cruel and unusual” must draw their meaning from “the evolving standards of decency that mark the progress of a maturing society.”

Thus, the Court provided a new test for determining whether a punishment violated the Constitution. The criteria were dynamic. As ideas about human dignity evolved and changed, the attitudes about what constituted acceptable treatment of offenders would presumably become more refined.

Virtually every Eighth Amendment and capital punishment case that followed Trop v. Dulles invoked the concept of “evolving standards of decency” and wrestled with how to measure and apply those standards. The National Association for the Advancement of Colored People (NAACP) was one group who brought cases during the 1950s and 1960s challenging the application of the death penalty on Eighth Amendment grounds. They raised the claim that racial bias in capital sentencing violated the evolving standards and was therefore unconstitutional. They developed and presented social science research on racial bias and the arbitrariness with which the death penalty was applied. In 1972, the Supreme Court heard Furman v. Georgia , an attempt by the NAACP to win from the Court a statement that capital punishment violated the Eighth Amendment.

Furman v. Georgia

In 1972, the Court heard three death-penalty cases grouped under the title Furman v. Georgia. Furman was a Black man who had shot a White homeowner, apparently by accident, during a robbery. The other two cases, from Georgia and Texas, involved rapes in which the offenders were Black and the victims were White. No injury, aside from the rape, had occurred in either case. All three defendants were sentenced to death. Each justice wrote a separate opinion, and although a majority of five members of the Court found that the death penalty, as administered, was unconstitutional, the explanations for the justices’ holdings varied widely. The four dissenting justices found no constitutional flaws with the system of capital punishment. All nine justices argued that evolving standards of decency were the measure of cruel and unusual punishments. They differed over what those standards were.

Those who voted to uphold the death sentences believed that the only objective ways to assess contemporary standards were through the actions of legislatures and the decisions of juries. Neither had found capital punishment per se to be cruel and unusual—and therefore unconstitutional. Without that endorsement from lawmakers and jurors, the four dissenting justices held that the Court could not move on the issue. On the other side, Justice William Brennan argued that the death penalty was, by definition, unconstitutional. In this view, degrading punishments were not only those that caused pain, but also included those that dehumanized people and treated them as disposable objects. He maintained that even vile criminals retained their humanity and dignity.

Brennan’s fellow opponents believed that capital punishment failed every constitutional test. It was unusually severe. There was a strong possibility of its arbitrary and biased use. It was substantially rejected by every modern democratic society, and it accomplished no greater purpose than less severe punishments. From this perspective, standards of decency had already evolved to the point where the death penalty was unacceptable. It remained only for the Court to formalize that position by declaring it unconstitutional on Eighth Amendment grounds. Thurgood Marshall, the first African American justice on the Supreme Court, reiterated that the “cruel and unusual” clause must be reexamined continually in the light of changing human knowledge. He asserted that if citizens were fully informed about the injustices inherent in the death penalty, they would find it unacceptable and reject it.

Justices taking a middle position in Furman identified the problem that the death penalty was being applied in an “arbitrary and capricious” manner, that death sentences were cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” In other words, it was the randomness in the application of capital punishment that made it cruel and unusual. Furman thus suspended executions until state legislatures could devise new laws that met the constitutional objections. The new legislation would be measured by its conformity with evolving standards of decency.

Gregg v. Georgia

The Court had found the laws at issue in Furman arbitrary and capricious, allowing too much discretion to juries and permitting the consideration of unacceptable factors such as race. North Carolina was one state that tried to meet those concerns by making the death penalty mandatory for certain offenses. To the majority of the Supreme Court in Woodson v. North Carolina (1976), this approach violated contemporary standards of decency and was therefore considered cruel and unusual under the Eighth Amendment.

On the same day as Woodson, however, the Court upheld the new Georgia capital statute again invoking contemporary standards of decency in their analyses of the death penalty. The majority in Gregg v. Georgia (1976) read the eagerness of thirty-five states to create new death-penalty laws as significant evidence that the punishment itself did not violate public sensibilities. They determined that a death sentence could serve to express a community’s belief that because certain crimes were so reprehensible, only death was an adequate response. They also deferred to the theory of federalism, holding that each legislature can best evaluate the moral consensus in its state, determining what its constituents find cruel and unusual.

Gregg was a 7-2 decision. Since then, the Court has operated on the assumption that the death penalty itself is not cruel and unusual punishment and does not violate the evolving standards of decency. The justices have constructed an elaborate structure of law around the death penalty, providing for a process of guided discretion to choose who will die. Many of those decisions have employed the notion of evolving standards of decency to define the meaning of cruel and unusual punishment as it applies to specific crimes or to categories of defendants.

Evolving Standards

Just one year after Gregg, the Court ruled that the punishment of death for the rape of an adult woman violated the Eighth Amendment. In Coker v. Georgia (1977), they reasoned that execution was disproportionate for a crime in which the victim did not lose her life. On several occasions, the Court considered whether an accomplice to a crime, who did not actually commit murder, could be put to death without violating the ban on cruel and unusual punishments. In Enmund v. Florida (1982), the justices found the death penalty too severe for someone who participated in a crime but did not kill nor intend to kill. Five years later, however, in Tison v. Arizona (1987), the Court seemed to reverse itself and allowed for the execution of defendants whose recklessness allowed a murder to occur. Coker, Enmund, and Tison all attempt to measure whether punishment by death for those who did not take a life violates evolving standards and is therefore cruel and unusual punishment. Rather than drawing a bright line, the Court seems to have linked its judgment with the degree of the defendant’s responsibility.

In other cases, the Supreme Court has ruled on whether the Eighth Amendment is violated if certain categories of defendants—the mentally ill, the developmentally disabled, juveniles, or the factually innocent—are executed. In Ford v. Wainwright (1986), they found it would offend basic standards of humanity to put a mentally ill person to death. The Court has not decided, however, whether a state may medicate inmates to make them “sane” enough for the death penalty to be carried out. In 2002, the justices ruled that there was a national consensus that executing the developmentally disabled violated standards of decency and was cruel and unusual punishment in Atkins v. Virginia . The ruling left it up to the states to determine who met the criteria as developmentally disabled. In a 1989 case, Stanford v. Kentucky , the Court held that executing a juvenile who was sixteen years old at the time of his crime did not violate the Eighth Amendment. Since that ruling, the majority of states have raised the age of eligibility for the death penalty, and virtually every country in the world has outlawed the execution of juveniles. On March 1, 2005, the Supreme Court overturned its 1989 decision by ruling that executions of juveniles constituted cruel and unusual punishment.

The Supreme Court has not been clear with respect to whether it violates the Eighth Amendment when an innocent person is punished with death. In Herrera v. Collins (1993), the majority of the justices held that Herrera had a fair trial, that he was not denied due process, and that if he were truly innocent, he should ask the governor for clemency. Therefore, he was not permitted to introduce new evidence of innocence in court. Five justices wrote separately that executing an innocent person would be constitutionally intolerable, but the Court has not ruled officially on the subject. In 2015, writing a dissent in Glossip v. Gross, a lethal injection case, Justice Stephen Breyer addressed the issue of innocence. He noted that modern technology such as DNA testing provided evidence that wrongful conditions are not uncommon. He felt this was an argument against capital punishment.

More Noncapital Issues

Citing the doctrine against cruel and unusual punishment, the Court required prisons to end the policy of whipping inmates in the 1960s. However, the justices have also ruled that prison officials cannot be sued for excessive use of force unless it is proved that they used force maliciously and sadistically and that they intended to cause harm. Thus, although inmates are theoretically protected from violent punishments, the remedies for such violations are difficult for those inside prison walls. Likewise, if corrections facilities fail to meet humane standards in food, housing, or health care, prisoners must prove the conditions were caused by the officials’ deliberate indifference.

The Supreme Court has also ruled that the Eighth Amendment applies only to convicted offenders. Therefore, people held in jail awaiting trial are not covered by the ban on cruel and unusual punishment. Nor do the provisions apply to children in public schools. The Court has been unwilling to view school officials who beat or paddle students as violating the students’ constitutional rights.

Another issue that has been brought to light is the prolonged use of isolation detention, which is commonly called solitary confinement. Many inmates spend prolonged time in isolation. This is often the case when people are sentenced to death and spend decades on death row in solitary confinement while the appeals system proceeds. Some legal experts say such treatment qualifies as cruel and unusual punishment because it has serious psychological effects.

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