The Supreme Court Expands the Definition of Cruel and Unusual Punishment

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The Supreme Court Expands the Definition of Cruel and Unusual Punishment

Joseph McKenna


Joseph McKenna, majority opinion, Weems v. United States, 217 U.S. 349, 1910.

In 1910 the U.S. Supreme Court ruled on Weems v. United States, which questioned the severity of punishment prescribed to Paul Weems. Weems was a disbursing officer with the U.S. Coast Guard stationed in the Philippine Islands. He was convicted of falsifying records, thereby defrauding the government of 612 pesos. His sentence, known as cadena temporal under the Philippine Code, included fifteen years in prison with hard labor, the constant use of chains to constrain him, the loss of all political rights during imprisonment, and a fine. He also became subject to permanent surveillance after his release. Weems appealed his conviction on the grounds that its severity constituted cruel and unusual punishment; the U.S. Supreme Court agreed in a four-to-two decision. Weems is considered a benchmark case because it broadened the definition of cruel and unusual to include more than just torturous physical punishment. More than 120 years after the Bill of Rights was ratified, the Supreme Court shifted its interpretation of the Eighth Amendment from what was considered cruel and unusual by the framers of the Constitution in 1789 (a historical interpretation that included restricting punishments such as whippings and the lopping off of one's ear) to what was considered cruel and unusual according to society's evolving standards. This ruling thus marks the beginning of the Court's interpreting the Eighth Amendment as having an "expansive and vital character," or one with an evolving nature that takes into account current punishment standards. Joseph McKenna served on the Supreme Court from 1898 to 1925.

Primary Source Text

What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous,—torture and the like [McDonald v. Commonwealth of Massachusetts, 1901]. The court, however, in that case, conceded the possibility 'that punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.' Other cases have selected certain tyrannical acts of the English monarchs as illustrating the meaning of the clause and the extent of its prohibition.

The 'Indefinite' Nature of 'Cruel and Unusual'

The provision received very little debate in Congress. We find from the Congressional Register, p. 225, that Mr. Smith, of South Carolina, 'objected to the words "nor cruel and unusual punishment," the import of them being too indefinite.' Mr. Livermore opposed the adoption of the clause saying:

The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms 'excessive bail?' Who are to be the judges? What is understood by 'excessive fines?' It lays with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we, in future, to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.

The question was put on the clause, and it was agreed to by a considerable majority.

The Supreme Court Has Yet to Define 'Cruel and Unusual'

No case has occurred in this court which has called for an exhaustive definition. In Pervear v. Massachusetts [1866], it was decided that the clause did not apply to state but to national legislation. But we went further, and said that we perceive nothing excessive, or cruel, or unusual in a fine of $50 and imprisonment at hard labor in the house of correction for three months, which was imposed for keeping and maintaining, without a license, a tenement for the illegal sale and illegal keeping of intoxicating liquors. A decision from which no one will dissent.

In Wilkerson v. Utah [1879], the clause came up again for consideration. A statute of Utah provided that 'a person convicted of a capital offense should suffer death by being shot, hanged, or beheaded,' as the court might direct, or he should 'have his option as to the manner of his execution.' The statute was sustained. The court pointed out that death was an usual punishment for murder, that it prevailed in the territory for many years, and was inflicted by shooting; also that that mode of execution was usual under military law. It was hence concluded that it was not forbidden by the Constitution of the United States as cruel or unusual. The court quoted [English lawyer William] Blackstone as saying that the sentence of death was generally executed by hanging, but also that circumstances of terror, pain, or disgrace were sometimes superadded. 'Cases mentioned by the author,' the court said, 'are where the person was drawn or dragged to the place of execution, in treason; or where he was disemboweled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder and burning alive in treason committed by a female.' . . .

This court's final commentary was that '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 those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution' [Thomas McIntyre Cooley, 1868].

That passage was quoted in Re Kemmler [1890] and this comment was made: 'Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, and something more than the mere extinguishment of life.' The case was an application for habeas corpus, and went off on a question of jurisdiction, this court holding that the 8th Amendment did not apply to state legislation. It was not meant in the language we have quoted to give a comprehensive definition of cruel and unusual punishment, but only to explain the application of the provision to the punishment of death. In other words, to describe what might make the punishment of death cruel and unusual, though of itself it is not so. It was found as a fact by the state court that death by electricity was more humane than death by hanging.

In O'Neil v. Vermont [1892] the question was raised, but not decided. The reasons given for this were that because it was not as a Federal question assigned as error, and, so far as it arose under the Constitution of Vermont, it was not within the province of the court to decide. Moreover, it was said, as a Federal question, it had always been ruled that the 8th Amendment of the Constitution of the United States did not apply to the states. Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Brewer were of opinion that the question was presented, and Mr. Justice Field, construing the clause of the Constitution prohibiting the infliction of cruel and unusual punishment, said, the other two justices concurring, that the inhibition was directed not only against punishments which inflict torture, 'but against all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged.' He said further: 'The whole inhibition is against that which is excessive in the bail required or fine imposed or punishment inflicted.'

The Motive of the Clause

The law writers are indefinite. [Supreme Court justice Joseph] Story, in his work on the Constitution, says that the provision 'is an exact transcript of a clause in the Bill of Rights framed at the [British] revolution of 1688.' He expressed the view that the provision 'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.' He, however, observed that it was 'adopted as an admonition to all departments of the national department, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts' [a British royal family]. . . . If the learned author meant by this to confine the prohibition of the provision to such penalties and punishment as were inflicted by the Stuarts, his citations do not sustain him. . . . The . . . citations are of the remarks of Patrick Henry in the Virginia convention, and of Mr. Wilson in the Pennsylvania convention. Patrick Henry said that there was danger in the adoption of the Constitution without a Bill of Rights. Mr. Wilson considered that it was unnecessary, and had been purposely omitted from the Constitution. Both, indeed, referred to the tyranny of the Stuarts. Henry said that the people of England, in the Bill of Rights, prescribed to William, Prince of Orange, upon what terms he should reign. Wilson said that 'the doctrine and practice of a declaration of rights have been borrowed from the conduct of the people of England on some remarkable occasions; but the principles and maxims on which their government is constituted are widely different from those of ours.' It appears, therefore, that Wilson, and those who thought like Wilson, felt sure that the spirit of liberty could be trusted, and that its ideals would be represented, not debased, by legislation. Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their jealousy of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power? And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts', or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked. We say 'coercive cruelty,' because there was more to be considered than the ordinary criminal laws. Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister.

Vital Principles Have Wide, Dynamic Applications

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction. . . .

The Sentence of Cadena Temporal Is Excessive and Cruel

We turn back to the law in controversy. Its character and the cointence in this case may be illustrated by examples even better than it can be represented by words. There are degrees of homicide that are not punished so severely, nor are the following crimes: misprision of treason, inciting rebellion, conspiracy to destroy the government by force, recruiting soldiers in the United States to fight against the United States, forgery of letters patent, forgery of bonds and other instruments for the purpose of defrauding the United States, robbery, larceny, and other crimes. Section 86 of the Penal Laws of the United States, as revised and amended by the act of Congress of March 4, 1909, provides that any person charged with the payment of any appropriation made by Congress, who shall pay to any clerk or other employee of the United States a sum less than that provided by law, and require a receipt for a sum greater than that paid to and received by him, shall be guilty of embezzlement, and shall be fined in double the amount so withheld, and imprisoned not more than two years. The offense described has similarity to the offense for which Weems was convicted, but the punishment provided for it is in great contrast to the penalties of cadena temporal and its 'accessories.' If we turn to the legislation of the Philippine Commission we find that instead of the penalties of cadena temporal, medium degree (fourteen years, eight months, and one day, to seventeen years and four months, with fine 'accessories'), to cadena perpetua, fixed by the Spanish Penal Code for the falsification of bank notes and other instruments authorized by the law of the kingdom, it is provided that the forgery of or counterfeiting the obligations or securities of the United States or of the Philippine Islands shall be punished by a fine of not more than 10,000 pesos and by imprisonment of not more than fifteen years. In other words, the highest punishment possible for a crime which may cause the loss of many thousands of dollars, and to prevent which the duty of the state should be as eager as to prevent the perversion of truth in a public document, is not greater than that which may be imposed for falsifying a single item of a public account. And this contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The state thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal. . . .

It follows from these views that, even if the minimum penalty of cadena temporal had been imposed, it would have been repugnant to the Bill of Rights. In other words, the fault is in the law; and, as we are pointed to no other under which a sentence can be imposed, the judgment must be reversed, with directions to dismiss the proceedings.

So ordered.

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The Supreme Court Expands the Definition of Cruel and Unusual Punishment

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