Cruel and unusual punishment and the Bill of Rights
Cruel and unusual punishment is a concept rooted in the Eighth Amendment of the U.S. Constitution, which prohibits excessively harsh penalties and inhumane conditions of incarceration. Tracing its origins to the English Bill of Rights of 1688, this provision aims to ensure that punishments remain consistent with evolving standards of decency in society. The interpretation of what constitutes "cruel and unusual" has been a complex and often contentious issue for the U.S. Supreme Court, leading to a patchwork of rulings over the years.
While some justices have viewed this prohibition as an absolute standard, others have emphasized its flexible nature, allowing for varying definitions based on contemporary societal values. Landmark cases such as *Furman v. Georgia* and *Gregg v. Georgia* illustrate the ongoing debate over the death penalty and its compatibility with the Eighth Amendment. Furthermore, discussions about this clause have evolved, resulting in two primary interpretative camps: one advocating for a modern understanding based on current societal values, and the other favoring originalist perspectives that seek to honor the intentions of the Constitution's framers.
As of the 2020s, the significance of this issue remains evident, particularly in decisions such as *City of Grants Pass v. Johnson*, where the Supreme Court's ruling raised questions about homelessness and its potential classification as cruel and unusual punishment. This ongoing dialogue reflects the complexity and enduring relevance of the Eighth Amendment in American law and society.
Cruel and unusual punishment and the Bill of Rights
Description: A key provision of the Eighth Amendment to the U.S. Constitution prohibiting the most shockingly barbarous punishments and conditions of incarceration.
Relevant amendment: Eighth
Significance: Although elusive and elastic, the concept of cruel and unusual punishment has enabled the Supreme Court to adjust criminal punishments according to varying standards of decency and proportionality.
Borrowing from the English Bill of Rights of 1688, the framers of the U.S. Bill of Rights (1791) included in the Eighth Amendment to the U.S. Constitution a prohibition against “cruel and unusual punishment.” Like so much else in the Constitution, and particularly in the Bill of Rights, the meaning, scope, and limitations of these figurative words were left to be determined by the Supreme Court. The results have been inconsistent, conflicting, and enigmatic.
The Court has struggled over whether the prohibition sets absolute and immutable standards that persist over time or instead expresses a goal of proportionality that varies depending on the circumstances. Consequently, the body of Court decisions interpreting the prohibition suffers from a lack of cohesion, allowing succeeding justices to fill the words with their own values and sensibilities.
During its first century, the Court paid scant attention to the prohibition on cruel and unusual punishment. In 1910 the Court held, in Weems v. United States, that the crime of being an accessory to the falsification of a public document could not justify a sentence of twelve to twenty years at hard labor in chains and a permanent deprivation of civil rights.
It was not until the 1970’s that the Court dwelt seriously on the prohibition, most prominently in the context of the death penalty. In Furman v. Georgia (1972), a fractured Court, with all nine justices writing separate opinions, struck down capital punishment with a 5-4 vote. Only Justices William J. Brennan, Jr., and Thurgood Marshall found that the death penalty was categorically unconstitutional based on the prohibition against cruel and unusual punishment, which the two justices construed as a flexible device reflecting “evolving standards of decency” based on public opinion, jury verdicts, and legislative enactments.
However, four years later in Gregg v. Georgia (1976), a plurality of the Court found that the prohibition did not invariably preclude capital punishment but only prohibited torture, gratuitously painful methods of execution, or punishments not officially authorized by law.
In noncapital cases, the Court has sent mixed signals. In Rummel v. Estelle (1980), a 5-4 majority held that sentencing a man to a life sentence for three felonies committed over nine years for crimes totaling $229.11 was not cruel and unusual. However, in Solem v. Helm (1983), again on a 5-4 vote, the Court invalidated a life sentence for a man, with prior nonviolent felony convictions, found guilty of passing a hundred-dollar check on a nonexistent account.
Inevitably, the Court will continue to grapple with the dilemma of giving meaning to one of the most opaque provisions in the Bill of Rights.
In the 2020s, issues of what defines cruel and unusual punishment continued to persist. Two camps evolved on how to interpret such cases. The first camp consisted of those who advocated such interpretations should consider the evolving values of contemporary society. The second camp asserted that rulings involving this clause should look for guidance from the original drafters of the Constitution. Foremost should be a determination of the intent these persons originally designed such laws to promote. An example of such sentiments occurred in October 2023 in a speech rendered by Judge Thomas Hardiman of the U.S. Third Circuit Court of Appeals. Addressing the Harvard Federalist Society, Hardiman opined that originalist interpretations prevented judges from imposing their private sentiments on cases.
In June 2024, the U.S. Supreme Court demonstrated its preference for originalist interpretation in City of Grants Pass v. Johnson. In its decision, the Supreme Court ruled that the city of Grants Pass, Oregon, had the legal authority to enforce an ordinance prohibiting persons from camping in public. Detractors, including the United States Court of Appeal for the Ninth Circuit, asserted that the ordinance effectively made it illegal to be homeless as such persons often had no sanctuary or other options on where to sleep. As such, the ordinance constituted cruel and unusual punishment. The Supreme Court overturned the Ninth Circuit decision on a vote of 6–3.
"Death Penalty & Criminal Sentencing Supreme Court Cases." Justia, 2024, supreme.justia.com/cases-by-topic/death-penalty-criminal-sentencing. Accessed 28 Aug. 2024.
Raymond, Nate. "US Appeals Judge Urges New Standard on ‘Cruel and Unusual’ Punishment. Rueters, 19 Oct. 2023, www.reuters.com/legal/government/us-appeals-judge-urges-new-standard-cruel-unusual-punishment-2023-10-18. Accessed 28 Aug. 2024.
Sarat, Austin. "The Supreme Court Decision to Allow Punishment for Being Homeless Further Eviscerates the Eighth Amendment." Verdict Justia, 1 July 2024, verdict.justia.com/2024/07/01/the-supreme-court-decision-to-allow-punishment-for-being-homeless-further-eviscerates-the-eighth-amendment. Accessed 28 Aug. 2024.