Cruel and Unusual Punishment (Update 1)

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The Eighth Amendment's cruel and unusual punishment clause, derived from common law and held to restrain the states as well as the federal government, applies to noncapital as well as capital criminal punishments. The concept of cruel and unusual punishments, while undoubtedly meant to address extremely harsh or painful methods and kinds of punishment, also incorporates ideas of excessiveness, proportionality, and appropriateness. It is therefore relative, and whether a particular punishment is cruel and unusual depends on prevailing societal standards, objectively determined, regarding punishments. The Supreme Court has held that the clause outlaws not only punishments that are barbarous, involving torture or the intentional and unjustifiable infliction of unnecessary pain, but also forbids confinements whose length or conditions are disproportionate to the severity of crimes, serious deprivations of prisoners' basic human needs, loss of citizenship as a punishment, and punishments for status.

In weems v. united states (1910) the Court held the Philippine punishment of cadena temporal unconstitutional as applied. The imposed punishment for the crime of making a false entry in a public record—not shown to have injured anyone—was fifteen years' imprisonment at hard and painful labor with chains, loss of civil liberties, and governmental surveillance for life. The Court, in Estelle v. Gamble (1976), also held that deliberate indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment. In Hutto v. Finney (1978) it upheld a lower court's conclusion that routine conditions in the Arkansas prison system were so inhumane as to be cruel and unusual. Earlier, the Court had determined in trop v. dulles (1968) that imposing loss of citizenship on a native-born citizen for desertion in wartime was cruel and unusual because it destroyed the person's political existence and made him stateless. In implicit recognition that states may define as crimes only acts, conduct, or behavior, the Court, in Robinson v. California (1962), held criminal imprisonment for the status of being a drug addict, unaccompanied by any acts, cruel and unusual.

The question to what degree the Eighth Amendment's cruel and unusual punishment clause may limit the power of a state to define the length of a prison sentence has been troublesome. The issue arises most often in challenges to recidivist statutes mandating life sentences on persons having three or more consecutive felony convictions or to sentencing statutes requiring extremely long sentences for those convicted of small drug offenses. Originally, in a number of cases raising disproportionate-length challenges to such statutes, the Court took the view that legislatures had extremely wide latitude in setting felony sentence lengths and that it would rarely, if ever, find such statutes unconstitutional. Thus, in rummel v. estelle (1980) the Court upheld a life sentence imposed on a person who was separately convicted and imprisoned for three nonviolent felonies, involving illegally acquiring money in the amounts of $80, $28.36, and $120.75. The only mitigation in the sentence was a possibility of parole after twelve years. In Hutto v. Davis (1982) the defendant received a sentence of forty years in prison and a fine of $20,000 for possession and distribution of nine ounces of marijuana, and the Court upheld this statute as well, although the average sentence for similar offenders was approximately three years.

Although these two cases suggested that the Court, in practice, did not accept any constitutional standard of length proportionality in felony cases, in a subsequent case a different Court majority strongly endorsed and articulated just such a standard. In solem v. helm (1983) the Court struck down, as uconstitutionally disproportionate in length, a sentence of life imprisonment without possibility of parole for a defendant convicted for a seventh felony, which involved uttering a "no-account" check for $100. The Court held that although no sentence is per se unconstitutional, the cruel and unusual punishment clause requires that criminal sentences must be proportionate to the crime for which the defendant has been convicted. The judgment whether a sentence is proportionate turns on an analysis guided by consideration of the gravity of the offense and harshness of the penalty; sentences imposed on other criminals in the same jurisdiction; and sentences imposed on commission of the same crime in other jurisdictions. Solem, however, overturned no prior case law, and the current Court is strongly disposed to accept legislative judgments. The only reasonable conclusion to draw is that the principle of length proportionality is weak and, except in rare cases, unlikely to stand as a check on disparate and extremely long sentences.

Gary Goodpaster

(see also: Prisoners' Rights.)


Granucci, Anthony F. 1969 "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning. California Law Review 57:839–865.