Chapter 9 Eighth Amendment: Physical Aspect of Punishments

• Jurisdiction: United States

Chapter 9 Eighth Amendment: Physical Aspect of Punishments

Punishing offenders was never intended to be pleasant. The reactions of those harmed by criminal acts is something that cannot be predicted. After all, revenge is a violent natural reaction to being attacked. Humans can react to an attack on their person or belongings in an uncontrolled manner and according to their ability and means at their disposal. Constitutional protections for those accused of criminal conduct are a kind of safeguard against such instinctive emotions and reactions. Yet, the Constitution does not provide unity in punishment; if anything, it can be applied discriminatorily against different offenders who commit the same crime.

This chapter and the next one, both covering the Eighth Amendment, examine how the Constitution protects the accused from being punished in a cruel and unusual manner. It is vital to our discussion that we understand that at heart, the Eighth Amendment focuses on securing the dignity of offenders who are convicted of crimes and subjected to the treatment of our penal institutions. It is an important amendment, as it limits how far the state can go in punishing offenders and helps define what basic conditions should be available to those forced to reside in correctional institutions. This amendment is also a reflection of American society's level of humanity and its willingness to support rehabilitation and reintegration. These ideas are not immediately understood in the text of the Eighth Amendment; however, subsequent court decisions have teased out its ramifications for the entire rehabilitation, reentry, and reintegration process, because this process plays a large part in whether incarcerated individuals perceive their punishment as just.

The Eighth Amendment reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Correctional practices do not deal with bail, which is the domain of the courts, nevertheless the Eighth Amendment is relevant to penology by addressing fines and cruel and unusual punishment. Bail is also relevant to jail populations, as those who are denied bail or who cannot post it may be subjected to punitive practices and harsh confinement conditions that may not be appropriate for people who have yet to be convicted of a crime. However, most cases that incarcerated individuals bring before the courts tend not to deal with monetary compensation, but rather focus on the conditions of confinement. These cases can range from not having enough food, hot water for showers, or health services, to issues of personal and institutional safety, abuse, and capital punishment.

Why should we care about the conditions of confinement and the safety of those offenders who have harmed us? Answering this question may reveal that there is much more than just locking offenders away, and that we should be interested in the way inmates are treated once behind bars. The importance of it lies in our own social values and the way we want to be perceived as a moral society. Further, maintaining the human dignity of offenders has an important public health aspect to it, as will be discussed later in this chapter and in the following chapter.

The cases presented and examined in this chapter are concerned with whether punishment was excessive or disproportionate to the offense committed. In the next chapter, we will consider the Eighth Amendment specifically as it pertains to conditions of confinement, and whether they constitute a cruel and unusual punishment. The Eighth Amendment has also been cited in cases alleging discrimination due to disability and sickness, and some alleging cruelty in the prevention of necessary medical treatment. In each of these cases, the courts must determine whether an inmate has been treated in a manner that does not reflect the standards of American society. At the same time, prison administrators may be required to demonstrate that they acted in good faith and that they did not deliberately create conditions that would bring more suffering to the inmate. The issue of deliberate action will be discussed again in the following chapter.

We begin the discussion in this chapter with the most controversial form of punishment, the death penalty, and examine the legal debate around it in an attempt to determine if it aligns with the cruel and unusual clause. We then turn to corporal punishment against incarcerated offenders, and the views of justices on the legality of such practices, and discuss issues of proportionality in sentencing, such as length of sentence and sentencing of habitual offenders. We conclude the discussion of the Eighth Amendment in this chapter with a short discussion on bail.

Death Penalty

The death penalty has had a controversial history in the United States. Only one year after English settlers arrived at Jamestown, the first execution was carried out by colonial authorities. Since that time, more than 20,000 people have been executed in the United States (Bohm, 2003). Although capital punishment came to the lands that would become the United States nearly as soon as European colonialists, protests against this form of punishment arrived almost simultaneously. Indeed, many colonists fled to America to avoid religious persecution, as well as the high number of executions conducted in European countries. Furthermore, many religious groups, perhaps most prominent among them the Quakers, advocated for a complete abolition of the death penalty. While these groups failed in that goal, it is noteworthy to mention that in 1682, the colony of Pennsylvania, a state with a high population of Quakers, limited the application of capital punishment to only the crimes of murder and treason (Friedman, 1993). Yet, as time went on and 13 colonies became 50 states, different parts of the country had widely diverging death penalty statutes. Ultimately, this lack of uniformity would be part of the impetus for the Supreme Court to step in and affect drastic changes in the imposition of capital punishment in the United States. Although capital punishment is highly controversial and is considered the ultimate punishment, it is less common than many people may think. For example, according to the Death Penalty Information Center, in the four decades from 1976 to March 2016, 1,431 individuals were executed, with the a spike in executions occurring between 1997 and 2002, with 1999 having the highest number of executed prisoners in that decade, 98 people, which is less than 0.00004% of the total incarcerated population that year. Nonetheless, this does not diminish the importance of the related cases that come before the Supreme Court.

The first case that substantially affected the modern imposition of the death penalty was Furman v. Georgia. This case paved the way for other capital punishment cases and initiated the pendulum of debate over its constitutionality. By a 5-4 decision, the Supreme Court ruled that the imposition of the death penalty in one case of murder and in two other cases for the crime of rape, constituted cruel and unusual punishment. However, beyond that the imposition of the death penalty was unconstitutional; the five justices who ruled that the death penalty was unconstitutional could come to no agreement as to why. Two justices, Justice Brennan and Justice Marshall, stated that the death penalty itself constituted cruel and unusual punishment. Justice Douglas, while not quite so unequivocal, ruled that the death penalty as imposed was discriminatory against certain minority populations, because they were more likely to receive this form of punishment. Given that there is no practical solution to this problem, Douglas' argument would essentially rule that the death penalty is always unconstitutional. Justice Stewart noted that many states, at that point in time, actually mandated the death penalty for certain crimes, which he found problematic. Additionally, he noted, "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Justice White argued that juries seemed to arbitrarily give the death penalty in some cases while refusing to consider it in others. White also noted the infrequency with which the death penalty was imposed. As for the four dissenting justices in the case, they made three primary arguments in support of the constitutionality of death penalty. The first was that the death penalty is mentioned in the Constitution, which in their view implied its constitutionality. The second argument was that the death penalty has been a punishment throughout the history of the United States. The third argument was that the majority of the Supreme Court was impermissibly overruling the will of the states that utilized capital punishment as a penalty. As Clear, Cole, and Reisig (2013) note, the impact of the Furman decision was substantial. The Court invalidated capital punishment statutes in 39 states and the District of Columbia, as well as a federal statute that authorized the death penalty for certain crimes (11 states did not have the death penalty at that time).

While Furman v. Georgia essentially placed a moratorium on capital punishment, it was certainly not the end of the issue. Three years later, in 1975, Justice Douglas, a long-time liberal on the Supreme Court bench, retired. Additionally, Justices Stewart and White, who had ruled in Furman that the death penalty as applied at that time was unconstitutional, had also stated that they could imagine that states could write death penalty statutes that would be considered constitutional. Specifically, Justices Stewart and White had argued that different safeguards needed to be put in place to protect the rights of defendants who might be subjected to the death penalty. Furthermore, both justices...