Cruel and Unusual Punishment

• Author: Jeffrey Lehman, Shirelle Phelps

Page 304

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the COMMON 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

Page 305

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...