Cruel and Unusual Punishment

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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.)