CRUEL AND UNUSUAL PUNISHMENT

The prohibition of cruel and unusual punishments is one of the most important constitutional limitations upon the penal process. Like the general guarantees of due process and equal protection, it has been applied to every aspect of that process, ranging from the definition of criminal norms and the consequences of their violation (the subject of substantive criminal law), to the imposition of punishment (criminal procedure), and to its eventual infliction (prison or correction law). As such, it addresses participants at all stages of the penal process, including the legislature, the judiciary (whether professional or lay, permanent or temporary), and the executive at the end of the punishment line, including wardens, prison guards, and the literal "executioner."

The prohibition appears in federal and state constitutions alike, with occasional slight variations ("cruel or unusual" or "cruel and unusual"). This article focuses on the scope of the federal provision, as interpreted by the U.S. Supreme Court. It should be noted, however, that the scope of the federal prohibition does not necessarily match that of its state analogues. For example, in 1992 the Michigan Supreme Court overturned on state constitutional grounds the very penalty that the United States Supreme Court had upheld under the federal cruel and unusual punishments clause the previous year (Harmelin v. Michigan, 501 U.S. 957 (1991); People v. Bullock, 485 N.W.2d. 866 (Mich. 1992)).

The federal version of the principle appears in the Eighth Amendment, which provides in its entirety that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The excessive bail and fines clauses have proved far less significant as limitations on the state's power to punish than has the general proscription of cruel and unusual punishments.

The history of the prohibition of cruel and unusual punishments is uncontroversial in one sense, hotly contested in another. Everyone agrees that its wording stems from an identical provision in the English Bill of Rights of 1689. There is no similar consensus on the nature, or the contemporary significance, of the Framers' intent behind its insertion in the Bill of Rights.

One of the most important disagreements about the Framers' intent concerns the extent to which they meant to constrain the legislative definition of crimes and their punishments. Some argue that the Framers intended the prohibition of "cruel and unusual punishments" to apply only to the definition of punishments. Others discern an intent to limit also the definition of crimes as well as the relation (or "proportionality") of crimes and their punishments.

Disagreements about the contemporary significance of the Framers' intent, whatever it might be, reflect the more general debate about the proper approach to constitutional interpretation and related conceptions of the Supreme Court's role. Those who favor a restrictive role for the Court prefer that it stick to fathoming the Framers' intent behind a given constitutional provision. Others advocate a more flexible interpretative approach, occasionally appropriating the restrictive approach by claiming that the Framers intended that a given provision be interpreted flexibly.

The Supreme Court in recent decades has favored a more expansive approach to the clause, one that takes into account the "evolving standards of decency that mark the progress of a maturing society." This test was first announced in a plurality opinion by Chief Justice Earl Warren in the 1958 case of Trop v. Dulles, 356 U.S. 86, which invoked the principle to strike down the punishment of denationalization for military desertion as "obnoxious" in an "enlightened democracy such as ours" (p. 100).

The malleable Trop test itself has been interpreted more or less expansively since its appearance. Its references to evolution, progress, and maturation have been used to disregard historical intent and practice alike. At the same time, its reference to societal standards has been invoked to limit the courts' power to invalidate existing legislation. As with similarly broad tests framed in terms of the sense of justice or the conscience of the community, which used to be far more common in constitutional law than they are today, society's standards of decency have been difficult to pin down.

This epistemic difficulty has been resolved in two ways. On the one hand, the Supreme Court has invoked general principles, such as "humanity" and "the dignity of man," from which it deduced more particular limitations on the power to punish, as in Trop itself. On the other hand, the Court more recently has turned to empirical evidence of society's attitude toward a particular punishment, including legislative activity, prosecutorial charging practices, and jury verdicts. For example, the constitutionality of capital punishment was upheld based on evidence that, following the Court's decision to strike down all existing death penalty statutes in Furman v. Georgia, 408 U.S. 238 (1972), legislators passed new death penalty statutes, prosecutors continued to seek the death penalty, and jurors persisted in imposing it. In its search for standards of decency in American society, the Court has not consulted abolitionist developments in the laws of other countries and in the international law of human rights.

In addition to speculating about the Framers' intent and plumbing societal standards, the Supreme Court has also parsed the precise formulation of the principle to define its scope. It has been argued, for instance, that the clause's prohibition of cruel and unusual punishments (rather than cruel or unusual, or simply cruel, punishments) insulates common punishments from constitutional scrutiny—at least under the Eighth Amendment—regardless of their cruelty, no matter how cruel they might be. The plural "punishments" may suggest a similarly restrictive interpretation of the clause, which would limit its application to particular penalties, rather than treating it as the source for a wide range of constraints on punishment generally speaking.

The reference to "punishments" in the principle limits its scope in other ways as well. Most generally, this reference has been interpreted as rendering the principle inapplicable outside the penal process, including the use of corporal "punishment" in schools (Ingraham v. Wright, 430 U.S. 651 (1977)). Within the realm of the penal process, it has been invoked to remove nonintentional acts of prison officials from the reach of the principle on the ground that the concept of "punishment" presumes intention (Wilson v. Seiter, 501 U.S. 294, 300 (1991)). Moreover, even intentional acts of prison officials fall outside the principle's scope if they are perpetrated against inmates prior to their conviction, the formal prerequisite for the imposition and eventual infliction of "punishment" (Ingraham v. Wright, 430 U.S. 651, 671–672, n. 40 (1977)). The constitutional constraints upon the treatment of students and pretrial detainees instead derive from the general guarantees of due process and equal protection, both of which apply to all state actions, regardless of their classification as punitive or not. The due process clause, for example, in keeping with the presumption of innocence prohibits the infliction of any kind of punishment on pretrial detainees, even if it is neither cruel nor unusual (Bell v. Wolfish, 441 U.S. 520, 537 (1979)).

Definition (substantive criminal law)

The primary addressee of the prohibition against cruel and unusual punishments as a limitation on the power to define crimes and their punishments is the legislature. In this case, however, care should be taken not to confuse the question of the principle's scope with that of its addressee. This common error derives from the assumption that the legislature enjoys a monopoly over the definition of crimes and punishments. This assumption holds, at least formally, only in federal law, where courts are precluded from generating a common, that is, nonstatutory, criminal law. The same does not hold for the bulk of American criminal law, which is state law and until recently relied heavily on judge-made common law. The principle, therefore, would apply to any definition of crimes and their punishments, regardless of its author. In this context, it should be noted that the federal prohibition of cruel and unusual punishments was not applied to state criminal law until 1962 (Robinson v. California, 370 U.S. 660 (1962)).

Crimes. The cruel and unusual punishments clause has the potential of serving as the constitutional backbone for the basic principles of substantive criminal law. To begin with, the clause presumably would prohibit the state today from providing for the punishment of nonpersons, such as animals and inanimate objects, familiar in premodern punishment. Within the class of persons, the state also would be barred from criminalizing the behavior of certain individuals who lack basic capacities, such as the insane and infants. The proscription of cruel and unusual punishment, however, would not apply to other state controls directed at these persons, provided that they do not qualify as punishment, such as civil commitment of one form or another.

These restrictions upon the object of punishment are distinguished from those upon the ground of punishment, that is, that which may trigger the threat, the imposition, or even the infliction of punishment. The material criminal law teaches us that even a person who would generally qualify for punishment may not be punished unless certain formal and substantive conditions are met, which generally mirror the distinction between the general part and the special part of criminal law.

Attempts to interpret the principle as a constitutional foundation for these conditions of criminalization and punishability have met with little success. The Supreme Court, for example, has yet to declare mens rea a constitutional prerequisite, even if mens rea is expansively defined to include negligence, a nonintentional mental state. Strict liability crimes, that is, crimes that require no mental states whatsoever, persist on the books and, in fact, continue to multiply with the expansion of modern regulatory offenses.

Even the constitutional status of actus reus, the best candidate for a bedrock prerequisite for punishability, remains in doubt. The Supreme Court invoked the principle in a 1962 opinion to strike down a California law making it a misdemeanor "to be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics." The Court reasoned that drug addiction is a disease and, as such, could not be punished under the proscription of cruel and unusual punishments (Robinson v. California ).

Robinson has been interpreted more generally to proscribe all status offenses, including those based upon a status other than that of a sick person. Six years later, in Powell v. Texas, 392 U.S. 514 (1968), the Supreme Court clarified that Robinson should not be read to constitutionalize another aspect of actus reus, the voluntariness requirement. Other components of actus reus find a constitutional basis, if any, elsewhere. So punishing mere thoughts may run afoul of the first amendment's free speech guarantee, while the boundaries of omission liability are drawn by the due process clause (Lambert v. California, 355 U.S. 225 (1957)).

Attempts to derive from the cruel and unusual punishments clause substantive limitations on criminalization, as opposed to punishability, have been even less successful. The Robinson opinion, for example, has not been interpreted broadly to condemn the criminalization of drug possession, rather that of drug addiction, but has in fact been interpreted narrowly, as the Powell case makes clear. More recent cases on the scope of the state's power to criminalize often ignore the Eighth Amendment altogether (e.g., Bowers v Hardwick, (478 U.S. 186 (1986)), upholding anti-sodomy statute against due process attack).

Punishments. In contrast to the question of whom the state may punish for what, that of how the state may do the punishing falls squarely within the scope of the cruel and unusual punishments clause. So the clause prohibits torturous and barbaric punishments. What constitutes torture and barbarity depends on the application of the Trop decency standard. As we have seen, the Eighth Amendment does not condemn capital punishment. A state today presumably would not be free to provide for other corporal punishments, such as mutilation, lobotomy, and castration, at least if they are to be inflicted without explicit consent. The Supreme Court, however, has not seen fit to impose Eighth Amendment limitations on the quantity of noncorporal punishment, including life imprisonment without the possibility of parole.

Similarly, certain punishments, though generally unobjectionable under the Eighth Amendment, are cruel and unusual when imposed on certain defendants. So the death penalty may be imposed on defendants who are mentally retarded without being criminally insane (Penry v. Lynaugh, 492 U.S. 302 (1989)), but not on those who were under sixteen years of age at the time of the offense, though such defendants may be sentenced to life imprisonment without the possibility of parole (Harris v. Wright, 93 F.3d 581 (9th Cir. 1996)).

Crimes and punishments (proportionality).

Whether the Eighth Amendment reaches the relation between crimes and punishments, that is, the proportionality of punishment, may depend on the nature of the punishment in question. There is consensus that the punishment must be proportionate to the crime in death penalty cases. The Supreme Court has been less clear on the question of whether a proportionality requirements also attaches to noncapital punishments, and, assuming it does, what it looks like. In the capital context, the Supreme Court has invoked the proportionality principle to strike down a statute that provided the death penalty for the rape of an adult woman. The proportionality principle may also constrain a legislature's discretion to specify death as the punishment for certain types of felony murder.

In noncapital cases, the Supreme Court has struggled to find a workable proportionality test. In an irreconcilable series of opinions on recidivist statutes decided within a space of three years, the Supreme Court upheld a life sentence and a forty-year prison term, but struck down another life sentence (Rummel v. Estelle, 445 U.S. 263 (1980); Hutto v. Davis, 454 U.S. 370 (1982); Solem v. Helm, 463 U.S. 277 (1983)). The last case in the series attempted to steady the jurisprudence in this area with a three-prong test that looked to the gravity of the offense compared to the severity of the penalty, the sentences imposed for other crimes in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions. The Solem test, however, proved short lived. Only eight years later, in a case upholding a sentence of life imprisonment without the possibility of parole for simple drug possession, a majority of the Supreme Court rejected the test, with two justices in the majority going so far as to suggest that the Eighth Amendment places no proportionality requirement on noncapital punishments, while the remaining three opined that the Amendment forbids only grossly disproportionate noncapital punishments (Harmelin ).

Imposition (procedural criminal law)

The Eighth Amendment has had its greatest impact on procedural criminal law in capital cases. There the Supreme Court has required a process that guarantees an individualized sentencing decision to avoid arbitrary and capricious death sentences. The Supreme Court has rejected attempts to extend this requirement to noncapital cases, even those involving a maximum sentence of life imprisonment without the possibility of parole (Harmelin ). Presumably, the imposition of penal norms upon an incompetent defendant would also be considered cruel and unusual. The Eighth Amendment alone, however, would not prohibit the conviction—or even the execution—of an innocent person, assuming the impositional process satisfied due process requirements (Herrera v. Collins, 506 U.S. 390 (1993)).

Infliction (prison or correction law)

Even if neither the legislative threat of a particular punishment nor its imposition on a particular defendant violates the Eighth Amendment, its actual infliction may. After all, the amendment specifically prohibits the infliction of cruel and unusual punishments, in contrast to the imposition of excessive bail or fines. Legislatures enjoy considerable latitude in determining the mode of punishment. Although burning at the stake and quartering would presumably run afoul of the Eighth Amendment, the Supreme Court has been unwilling to constrain legislatures' choice among other modes of execution, including electrocution, hanging, gassing, and lethal injection.

Still, the cruel and unusual punishments clause reaches the actual infliction of punishment, even if it does not deviate from the general mode specified by the legislature (say, by electrocuting a condemned man rather than hanging him). Paradoxically, the infliction of noncapital punishment has received much greater Eighth Amendment scrutiny than has the infliction of capital punishment. So the Supreme Court has consistently rejected claims based on botched execution attempts, while at the same time developing a complex jurisprudence of prison conditions, which critics have characterized as a National Code of Prison Regulations (Hudson v. McMillian, 503 U.S. 1 (1992) ( Justice Thomas dissenting)).

In the law of prisons, different tests govern the infliction of legislatively defined and judicially imposed punishments, on the one hand, and the disciplining of inmates for prison misconduct, on the other. The former amounts to cruel and unusual punishment if it reflects "deliberate indifference" on the part of prison officials. The latter violates the Eighth Amendment, for example, only if it reflects "malice and sadism" (Hudson ).

Conclusion

The cruel and unusual punishments clause today speaks to all aspects of the penal process. It remains to be seen whether it will ever realize its potential as the single most important source of substantive constitutional constraints upon American penal law, alongside the due process clause, which has long been recognized as the root of significant procedural rights.

Markus Dirk Dubber

See also Capital Punishment: Legal Aspects; Corporal Punishment; Prisoners, Legal Rights of; Punishment; Shaming Punishments.

BIBLIOGRAPHY

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.

CRUEL AND UNUSUAL PUNISHMENT

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to thecommon 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 Deathby Electrocution Crueland Unusualunder 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.

cross-references

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).

cross-references

Capital Punishment; Determinate Sentence; Juvenile Law; Sentencing.

CRUEL AND UNUSUAL PUNISHMENT

The Eighth Amendment provides that "excessive bail shall not be required … nor cruel and unusual punishment inflicted." Similar provisions now exist in virtually all state constitutions. Even if they did not, the federal constitutional prohibition has been held in Robinson v. California (1962) to be binding on the states through the fourteenth amendment ' s due process clause.

A legal prohibition against cruel and unusual punishment appears to have originated in the English bill of rights in 1688. Its purpose then was to curtail the shockingly barbarous punishments that were so common during that period.

How the prohibition was to be applied to American society, with its different values and legal system, remained unclear a century after the enactment of the American bill of rights. In the late nineteenth and early twentieth centuries, the Supreme Court did occasionally interpret the cruel and unusual punishment language, mostly as it related to the means for executing capital punishment. However, not until the 1970s did the Supreme Court begin to give extensive consideration to the scope and meaning of the prohibition apart from capital punishment. The Court did not decide until 1977, for example, whether the cruel and unusual punishment clause applied to persons who had not been convicted of crime. ingraham v. wright (1977) raised the question whether the corporal punishment of school children constituted cruel and unusual punishment. The Court held that it did not, stating that the Eighth Amendment provision is applicable only to persons convicted and incarcerated for crimes. In the Court's view, the prohibition was not necessary to protect children in public institutions, as other protections were available. Since Ingraham, the Supreme Court has also held that the Eighth Amendment is inapplicable to persons detained for treatment or detention and not punishment, such as persons committed to mental institutions (Youngblood v. Romero, 1982) or detained awaiting trial (Bell v. Wolfish, 1979). Any protection against improper punishments in such situations derives from due process of law and not the Eighth Amendment prohibition against cruel and unusual punishment.

Since the late 1970s, in a number of cases involving noncapital sentences and the treatment of prison inmates, the Court has generally given a narrow interpretation of the cruel and unusual punishment clause.

Prior to Supreme Court review of the issue, several federal and state courts had held that a sentence could be invalid on cruel and unusual punishment grounds if its length was disproportionate to the offense. Courts used several measures to determine whether a particular sentence violated the Eight Amendment: the nature of the crime, and particularly whether violence was involved; comparison of the individual sentence or statutory sentencing scheme with sentences or schemes for similar crimes in other jurisdictions; and comparison of the individual sentence or statutory sentencing scheme for the particular crime with those for other similar or more serious crimes in the same jurisdiction. Thus a federal court of appeals struck down a life sentence imposed on an offender under a Texas statute authorizing a life sentence for a person convicted of felonies on three separate occasions. In this case, the three felonies included: fraudulently using a credit card to obtain $80.00 worth of services; passing a forged check for $28.36; and obtaining $120.75 by false pretenses. The three convictions occurred over a nine-year period. In rummel v. estelle the Supreme Court reversed; the 5–4 majority refused to apply the comparative measures used by lower courts. Instead, it gave great weight to legislative judgments on criminal sentences and to the deterrence of habitual offenders. The fact that Rummel was eligible for early release on parole apparently eased the majority's decision. After Rummel, it was uncertain what circumstances might justify judicial intervention on cruel and unusual punishment grounds in cases not involving habitual offender statutes. In Hutto v. Davis (1982), in a per curiam opinion, the Court, over three dissents, held that a forty-year sentence for possession of nine ounces of marijuana did not constitute cruel and unusual punishment. The Court reiterated the Rummel majority's view that federal courts should be "reluctan[t] to review legislatively mandated terms of imprisonment" and that "successful challenges to the proportionality of particular sentences" should be "exceedingly rare."

In 1983, in solem v. helm, however, the Supreme Court invalidated a life sentence without possibility of parole for a person convicted under a recidivist statute. The immediate charge involved passing a check for one hundred dollars written on a nonexistent account; all his prior felony convictions were for nonviolent crimes against property. The Court, in a 5–4 decision, applied a proportionality test in applying the cruel and unusual punishment clause. Even after this decision, it appears that the burden of attacking a sentence of a term of years on disproportionality grounds, at least in the federal courts, will be difficult to carry. Some state supreme courts have been more willing to use state constitutional counterparts to the Eighth Amendment to strike down terms that seem excessive relative to the crime committed.

In earlier cases, the Supreme Court did reverse some sentences involving issues other than their length. In trop v. dulles (1958), for example, the Court concluded that depriving a person of nationality for conviction by court-martial of wartime desertion constituted cruel and unusual punishment. Also, in weems v. united states (1909), the Court held that the crime of being an accessory to the falsification of a public document could not justify a twelve-to-twenty-year sentence at hard labor with chains and a permanent deprivation of civil rights.

The Supreme Court has also applied the Eighth Amendment to reverse the punishment of a person simply because of his status or condition. In Robinson v. California (1962) the Court held that punishing a person for being a drug addict constitutes cruel and unusual punishment. The Court refused, however, to apply this same reasoning six years later when it was asked to invalidate an alcoholic's conviction of public drunkenness in Powell v. Texas (1968).

In summary, the Supreme Court has rarely relied on the federal prohibition against cruel and unusual punishment to overturn a criminal sentence. The Court has also applied the prohibition sparingly to challenges by prisoners to prison conditions, even though courts have frequently found these conditions to be shocking.

Without question, most prisons throughout the country are archaic, overcrowded, filthy, and understaffed, and provide few worthwhile vocational or recreational activities for prisoners. Because the prison population is growing dramatically at a time when resources to maintain it are shrinking proportionately, prison conditions are deteriorating. In several cases in the late 1970s and early 1980s, the Supreme Court attempted to articulate standards for applying the prohibition against cruel and unusual punishment to challenges against prison conditions. In Rhodes v. Chapman (1981) the Court summarized these standards as follows: "Today the Eighth Amendment prohibits punishments which, although not physically barbarous, involve the unnecessary and wanton infliction of pain, or are grossly disproportionate to the severity of the crime. Among unnecessary and wanton infliction of pain are those that are totally without penological justification." The Court has not yet applied these standards to the intentional physical abuse of prisoners. It has, however, cited with approval a court of appeals decision, Jackson v. Bishop (1968), which proscribed the whipping of prisoners.

Holt v. Finney (1978) confronted the Supreme Court with its first Eighth Amendment challenge to prison conditions. The lower courts had declared that the general conditions of the Arkansas state prison system constituted cruel and unusual punishment. Among the conditions challenged were: administration of much of the prisons' activities by inmate trustees; dangerous barracks; overcrowded and filthy conditions in isolation or punishment cells and the poor diet of prisoners in these cells; and lack of any rehabilitation programs. The lower courts entered sweeping orders requiring major improvements in the prisons. Among these improvements were restrictions on the numbers of prisoners placed in isolation cells, a requirement that bunks be placed in these cells, a discontinuation of the "grue" diet, and a limit of thirty days in an isolation cell. The state appealed the thirty-day limitation. In a cautious opinion, the Supreme Court upheld the lower court's conclusion. Although it held that confinement in punitive isolation is not a per se violation of the Eighth Amendment, the Court stated that such confinement may become a violation depending on the conditions of isolation. If violations do occur, the Court said, remedies may include a limit on the time to be spent in isolation; the thirty-day restriction of the lower court seemed supportable in this case.

The Supreme Court reached a different result in a constitutional challenge to overcrowding in an Ohio prison. In Rhodes v. Chapman (1981) the issue was "doublebunking" prisoners in cells originally designed for single inmates. The courts below had found this practice to violate the Eighth Amendment because prisoners were serving long sentences; the prison was thirty-eight percent over capacity; decency required more living space; prisoners spent much of their time in their cells; and double-bunking was a regular practice, not a temporary condition.

The Supreme Court reversed, holding that there was no evidence that double-bunking in this case "inflicted unnecessary or wanton pain or [was] grossly disproportionate to the severity of crimes warranting punishment." The Court found that double-bunking did not lead to "deprivation of essential food, medical care, or sanitation" or to increased violence among inmates. In the Court's view, the Constitution "does not mandate comfortable prisons," and judges should be reluctant to intervene in prison condition cases unless the conditions were "deplorable" or "sordid": "In discharging [their] oversight responsibility, however, [federal] courts cannot assume that State legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the penal function in the criminal justice system."

In another opinion, Estelle v. Gamble (1976), the Supreme Court established some minimum requirements for the provision of health care in prisons. Stating that the government must provide medical care to those whom it punishes by incarceration, the Court held that "deliberate indifference to the serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." The Court placed several limits on successful claims, however. For example, an inadvertent failure to provide adequate medical care would not constitute "unnecessary and wanton infliction of pain." Nor would an accident, simple negligence, or a disagreement as to treatment options.

Thus, although the Supreme Court had indicated that the Eighth Amendment does protect prisoners from deplorable conditions, for the most part the Court has not shared the view of many lower courts or of prison experts as to what conditions are deplorable.

The Supreme Court has yet to consider a number of other important questions, such as the factors that must be weighed in assessing challenges to the conditions of a prison as a whole; the constitutional limits on behavior modification programs, including drug usage programs; and the minimum requirements for providing a secure environment for prisoners. Precedent suggests that the Supreme Court will be as cautious in addressing these and other related prison condition issues as it has been in confronting other asserted impositions of cruel and unusual punishment.

Sheldon Krantz
(1986)

(see also: Institutional Litigation.)

Bibliography

Grannucci, Anthon F. 1969 Nor Cruel and Unusual Punishment Inflicted. California Law Review 57:839–865.

Joint Committee on the Legal Status of Prisoners 1977

American Bar Association Standards Relating to the Legal Status of Prisoners. American Criminal Law Review 14:377–629.

Krantz, Sheldon 1983 Corrections and Prisoners' Rights in a Nutshell, 2nd ed. St. Paul, Minn.: West Publishing Co.

Sherman, Michael and Hawkins, Gordon 1981 Imprisonment in America: Choosing the Future. Chicago: University of Chicago Press.

Uniform Law Commission 1978 Model Sentencing and Convictions Act. New York: National Conference of Commissioners on Uniform State Laws.

United Nations Economic and Social Council 1957 Minimum Rules for the Treatment of Prisoners. New York: United Nations Publications.