Cruel and Unusual Punishment

The Heritage Guide to the Constitution

Cruel and Unusual Punishment

Amendment VIII

...nor cruel and unusual punishments inflicted.

There is little in the historical record to suggest that the Cruel and Unusual Punishment Clause was the subject of much discussion during the drafting and ratification of the Bill of Rights. Consequently, there has been a continuing controversy over the particular meanings of “cruel” and “unusual” and the categories of punishments that the clause prohibits.

Three categories of punishments are at issue:

(1) punishments not prescribed by the legislature,

(2) torturous punishments, and (3) disproportionate and excessive punishments.

The declaration in the English Bill of Rights that “cruel and unusual punishments [ought not to be] inflicted” was commonly understood to apply only to those punishments not authorized by Parliament, that is to say, the form of punishment could no longer be the king’s prerogative. The Magna Carta (1215) had prohibited arrest and other like actions unless carried out according to “the law of the land,” and the 1689 Bill of Rights extended the principle to punishments as well. But though the king was limited, Parliament could, at least in theory, devise new punishments. Some scholars, however, have suggested that the proscription of “cruel and unusual punishments” included any novel punishment devised by Parliament that conflicted with longstanding tradition.

The second category, which arguably reflects the understanding that prevailed in America before the drafting of the Eighth Amendment, would prohibit torturous punishments such as pillorying, disemboweling, decapitation, and drawing and quartering. Inasmuch as such punishments were virtually absent in colonial America, Justice Joseph Story in his Commentaries on the Constitution of the United States (1833) believed that “[t]he 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.”

Early Supreme Court interpretations subscribed to the view that the clause curbed only torturous punishments as defined at the time of the amendment’s ratification. See Pervear v. Commonwealth of Massachusetts (1866). Based on that understanding, the Court subsequently upheld execution by public shooting, Wilkerson v. Utah (1879), and electrocution, In re Kemmler (1890). Some scholarly opinion, however, holds that “unusual” referred not only to punishments that were illegal at the time of the Founding but to punishments that did not conform to long-standing practice. In this sense, “unusual” would also include the third category of proscribed punishments, those that are disproportionate or excessive.

The notion that “unusual” requires respect to ongoing tradition and to the humane treatment of criminals was first raised in dissent in O’Neil v. Vermont (1892). The Court adopted the dissent’s view in Weems v. United States (1910) and reconfirmed that holding in Louisiana ex rel. Francis v. Resweber (1947). In Trop v. Dulles (1958), Chief Justice Earl Warren rejected the notion of reliance on the original understanding as the appropriate standard in favor of the aforementioned “evolving standards of decency that mark the progress of a maturing society.” Since that time, the Supreme Court’s views on the amendment have been confused, and the current Court appears divided and unable to agree on a common interpretive standard.

The Court first considered the question of incorporating the Cruel and Unusual Punishment Clause into the Due Process Clause of the Fourteenth Amendment in Resweber, but it did not resolve it definitively until Robinson v. California (1962).

In Furman v. Georgia (1972), the Court held in a five-to-four decision that the Eighth Amendment banned the arbitrary infliction of the death penalty, requiring states to rewrite their laws to give judges and juries standards according to which the penalty could be imposed. In the majority, three justices opined that the intent of the clause was to ban “arbitrary” punishments. Two other justices rejected an originalist approach to reach the same result. In toto, the majority believed that the penalty had been applied in a discriminatory or arbitrary manner, and the decision inspired some expectation that the Court would ban the death penalty altogether. In dissent in Furman, Chief Justice Warren E. Burger clung to the view that the Framers meant to ban only punishments not prescribed by law as well as torturous punishments.

In Gregg v. Georgia (1976), the Court flatly held that the death penalty was not a per se violation of the Eighth Amendment. The majority opinion agreed with Chief Justice Burger’s historical view of the original intent of the Eighth Amendment, but nonetheless adopted Chief Justice Warren’s added “evolving standards of decency” standard. The Court declared that the decision to impose capital punishment requires separate phases in a trial for the determination of guilt and the imposition of the death sentence. In the punishment phase, the law must leave the jury with discretion. Woodson v. North Carolina (1976).

The meandering history of Supreme Court opinions continued. In Solem v. Helm (1983), Justice Lewis F. Powell’s majority opinion held that the ban on disproportionate punishments was part of the 1689 English Bill of Rights, even if the Framers’ view was different. Harmelin v. Michigan (1991), however, reversed Solem, and Chief Justice William Rehnquist rejected Justice Powell’s analysis. Chief Justice Rehnquist and Justice Antonin Scalia reiterated that the primary purpose of the amendment was to void judge-imposed punishments that were not prescribed in the law. Concurring, Justice Anthony Kennedy nonetheless argued that disproportionality is also forbidden by the amendment. Justice Kennedy’s views were accepted by the majority in Atkins v. Virginia (2002) in an opinion written by Justice John Paul Stevens. Nonetheless, Stevens refused to base his decision on the original meaning and relied on Warren’s “evolving standards of decency” to hold that it is cruel and unusual to execute the mentally ill.

Generally speaking, we can now conclude that there is a proportionality requirement at least in the Court’s death-penalty cases. In back-to-back cases, Ewing v. California (2003) and Lockyer v. Andrade (2003), the Court continued to follow Justice Kennedy’s interpretation of the Eighth Amendment but held that the life sentence in California’s three-strikes law did not offend the principle of proportionality. In Ewing, Justice Scalia, joined by Justice Thomas, concurred, but asserted that the clause lacks a proportionality requirement.

Over the past few decades, the Court has held that rape may not be punished by death, Coker v. Georgia (1977), because the state should not be able to take away the perpetrator’s life if he did not take away the life of his victim. In line with this argument, the Court later held that only major accomplices in a felony murder conviction may be sentenced to death. Enmund v. Florida (1982), Tison v. Arizona (1987). In Kennedy v. Louisiana (2008), the Supreme Court determined that the Cruel and Unusual Punishment Clause prohibited the use of capital punishment against a convicted child rapist. In so doing, the Court also seemed to suggest that the death penalty would violate the Eighth Amendment in all instances where it was imposed on non-homicide offenders, except for those who commit “offenses against the State,” namely, “treason, espionage, terrorism, and drug kingpin activity.”

Based on the standard of disproportionality, the Court has also held that Congress may not take away a person’s citizenship for desertion from the army. Trop v. Dulles. Nor are inhumane prison conditions permissible under the Eighth Amendment, Estelle v. Gamble (1976), Rhodes v. Chapman (1981). Further, the amendment forbids serious or malicious harm caused by prison officials. Wilson v. Seiter (1991), Hudson v. McMillian (1992). But in order to succeed on an Eighth Amendment claim against prison officers for excessive use of force, an inmate must show (1) that the alleged wrongdoing was objectively harmful and (2) that the officers acted with a sufficiently culpable state of mind. Norton v. City of Marietta (2005).

Nor may a state execute a person under eighteen years of age, Roper v. Simmons (2005). In Graham v. Florida (2010), the Supreme Court extended Roper and held that juvenile offenders, and now even those convicted of murder, Miller v. Alabama (2012), could not be sentenced to life imprisonment without possibility of parole for non-homicide offenses. A state may not punish a person for a “status offense,” such as being a drug addict, Robinson v. California, though the amendment does not, of course, bar prosecution for the buying and selling of drugs. The amendment, however, does not prohibit corporal punishment in public schools, Ingraham v. Wright (1977). In addition, a mandatory life sentence after three convictions is constitutional. Rummel v. Estelle (1980).

The disproportionality rule has not seemed overly restrictive in recent lower federal court rulings. The imposition of two concurrent sixty-year prison sentences, with the last thirty years suspended for supervised release, was determined to be permissible for a defendant convicted of two counts of unlawful sale of a controlled substance next to a church. Brooks v. Kelly (2009). Given the nature of the offense, and the type of harm it causes, a statutory minimum sentence of five years for the receipt of child pornography was determined not to be grossly disproportionate to the offense. United States v. Woods (2010). In Gherebi v. Bush (2003), the federal appeals court did not reach the merits of the assertion by plaintiffs that the detention of persons at Guantanamo Bay was a violation of the Cruel and Unusual Punishment Clause.

In sum, the current law is that punishments do not violate the clause if they involve no “unnecessary and wanton infliction of pain” and if they are not “grossly out of proportion to the severity of the crime.” Gregg v. Georgia. The clause also proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins v. Virginia. More recently, the Court has grounded the clause’s protection in “the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.’” In adopting this approach, courts ought to consider contemporary and “evolving standards of decency,” rather than those conceptions of “cruel” or “unusual” punishment that prevailed at the time of the Eighth Amendment’s adoption. Today, this would specifically include consideration for the “respect for the dignity of the person.” Kennedy v. Louisiana.

David F. Forte

Professor, Cleveland-Marshall College of Law

Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. PA. J. CONST. L. 39 (2008)

Megan J. Ryan, Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?, 87 WASH. U. L. REV. 567 (2010)

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739 (2008)

Pervear v. Commonwealth of Massachusetts, 72 U.S. (5 Wall.) 475 (1866)

Wilkerson v. Utah, 99 U.S. 130 (1879)

In re Kemmler, 136 U.S. 436 (1890)

O’Neil v. Vermont, 144 U.S. 323 (1892)

Weems v. United States, 217 U.S. 349 (1910)

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)

Trop v. Dulles, 356 U.S. 86 (1958)

Robinson v. California, 370 U.S. 660 (1962)

Furman v. Georgia, 408 U.S. 238 (1972)

Gregg v. Georgia, 428 U.S. 153 (1976)

Estelle v. Gamble, 429 U.S. 97 (1976)

Woodson v. North Carolina, 428 U.S. 280 (1976)

Ingraham v. Wright, 430 U.S. 651 (1977)

Coker v. Georgia, 433 U.S. 584 (1977)

Lockett v. Ohio, 438 U.S. 586 (1978)

Rummel v. Estelle, 445 U.S. 263 (1980)

Rhodes v. Chapman, 452 U.S. 337 (1981)

Enmund v. Florida, 458 U.S. 782 (1982)

Solem v. Helm, 463 U.S. 277 (1983)

Ford v. Wainwright, 477 U.S. 399 (1986)

Tison v. Arizona, 481 U.S. 137 (1987)

Thompson v. Oklahoma, 487 U.S. 815 (1988)

Penry v. Lynaugh, 492 U.S. 302 (1989)

Stanford v. Kentucky, 492 U.S. 361 (1989)

Wilson v. Seiter, 501 U.S. 294 (1991)

Harmelin v. Michigan, 501 U.S. 957 (1991)

Hudson v. McMillian, 503 U.S. 1 (1992)

Atkins v. Virginia, 536 U.S. 304 (2002)

Ewing v. California, 538 U.S. 11 (2003)

Lockyer v. Andrade, 538 U.S. 63 (2003)

Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003)

Roper v. Simmons, 543 U.S. 551 (2005)

Norton v. City of Marietta, 432 F.3d 1145 (10th Cir. 2005)

Kennedy v. Louisiana, 554 U.S. 407 (2008)

Brooks v. Kelly, 579 F.3d 521 (5th Cir. 2009)

United States v. Woods, 730 F. Supp. 2d 1354 (S.D. Ga. 2010)

Graham v. Florida, 130 S. Ct. 2011 (2010)

Miller v. Alabama, 132 S. Ct. 2455 (2012)