Cruel and Unusual Punishment

Cruel and Unusual Punishment For nearly a century after the establishment of the United States, the Eighth Amendment's prohibition of cruel and unusual punishments was virtually a dead letter. The Supreme Court did concede that torture and punitive “atrocities,” such as burning at the stake, crucifixion, or breaking on the wheel, would be cruel and unusual (Wilkerson v. Utah, 1879). But other forms of punishment actually authorized by statute—hanging, shooting, electrocution—were not (In re Kemmler, 1890). The Court's criterion seems to have been whether a punishment would have been considered cruel and unusual in 1791, when the Bill of Rights was ratified.

In 1910 the Court in Weems v. United States invalidated a territorial statute derived from Spanish law that imposed cadena temporal—twelve to twenty years chained in prison—for knowingly entering a false statement in the public record. Because this penalty was excessive and disproportionate to the crime, the Court ruled that it was cruel and unusual. Against a narrow historic reading of the Eighth Amendment, the Court observed, “[A] principle to be vital must be capable of wider application than the mischief which gave it birth” (p. 373). Yet the criteria implied by this broader reading of the clause have remained obscure. Recently, the Court has held that the death penalty for rape (Coker v. Georgia, 1977) and for kidnapping (Eberheart v. Georgia, 1977) was cruel and unusual because “grossly disproportionate to the offense.” In 1958 the Court ruled that expatriation, which is denial of an offender's very “right to have rights,” violated the clause (Trop v. Dulles). Punishments, the Court said, must comport with “the basic concept of human dignity at the core” of the clause (p. 100). In the Court's first application of the clause to invalidate a state penal law, it struck down imprisonment for the status offense of narcotics addiction (Robinson v. California, 1962).

The question whether capital punishment was cruel and unusual was not considered until 1972. In Furman v. Georgia, a divided Court held that the death penalty as then typically administered for murder and rape was so “arbitrary” and “freakish” as to be cruel and unusual. However, four years later, in the wake of newly enacted capital statutes in three dozen states, the Court declared that the death penalty as such was not a cruel and unusual punishment (Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, 1976). The Court was influenced not only by popular support for the death penalty but also by new statutory guidelines intended to make the choice of sentence (death or imprisonment) more rational. The Court did hold, however, that a mandatory death penalty for murder, created to avoid arbitrariness by sacrificing “individualized” sentencing, was cruel and unusual (Woodson v. North Carolina, 1976). Such a punishment may not be employed even for a prisoner convicted of murder while serving a life term for murder (Sumner v. Shuman, 1987).

The Court has yet to decide whether the death penalty for nonhomicidal crimes, such as treason and espionage, is a cruel and unusual punishment. Legislative repeal of traditional corporal punishments has so far mooted any decision on their constitutional status.

Bibliography

Larry C. Berkson , The Concept of Cruel and Unusual Punishment (1975).

H. A. Bedau