Episode 170: December 7, 2012
by Adam Freedman
Today’s Topic: Constitution 101 – Cruel and unusual punishment
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
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This is the tenth installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.
The Eighth Amendment
The Eighth Amendment to the Constitution sets forward a proposition that, at least on its face, everyone can agree with. It says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The first two clauses about excessive bail and fines have not proven to be too controversial. The bit about cruel and unusual punishment, however, has launched thousands of lawsuits and scholarly articles.
Original Meaning or Evolving Standards?
The first point to note is that a particular form of punishment must be both cruel and unusual to violate the Eighth Amendment. Forcing a convicted criminal to dress up in a chicken suit might be unusual, but it probably would not be considered cruel.
But then the question becomes: how do courts determine what is “cruel” and what is “unusual?” The text was originally understood to prohibit Congress from creating criminal punishments that would go beyond the level of severity permitted by common law. Of course, when the Bill of Rights was adopted, the common law allowed punishments that, by today’s standards, might seem harsh, like hanging, flogging, and even branding. Early commentators opined that the Eighth Amendment prohibited only really gruesome punishments, like burning at the stake.
The Supreme Court announced a broader interpretation of the Eighth Amendment in the 1958 case of Trop v. Dulles. In that case, the Court struck down a law that required wartime deserters to forfeit their citizenship. Four of the Justices declared that the test of whether a punishment is cruel and unusual should be “the evolving standards of decency that mark the progress of a maturing society.” Over the years, the “evolving standards” test has been cited often by the court, but disagreements remain over exactly which “maturing society” should set the standards. In some cases, judges look for a consensus among the fifty states. In other cases, however, courts look for an international consensus for or against a particular form of punishment. The use of foreign laws to interpret the U.S. Constitution has been highly controversial.
“Death is Different”
Judges also disagree about whether the Eighth Amendment creates a rule of proportionality; that is, a rule that every punishment must “fit the crime” to pass constitutional muster. Beginning in the 1970s, shifting coalitions on the Supreme Court applied a proportionality standard, but only in cases involving capital punishment. The Court treated capital cases differently because, as the Justices said in Gregg v. Georgia, “death is different.”
The death penalty is permitted by the Constitution (indeed, the Fifth Amendment and Fourteenth Amendments assume that the state and federal governments can impose the death penalty as long as “due process” is observed). However, using proportionality review and evolving standards, the Supreme Court has prohibited various applications of the death penalty. Death is prohibited, for example, for any crime other than murder and for defendants who are minors or mentally retarded.
Until 1976, the Eighth Amendment applied only to the criminal penalties imposed by law – not to the internal operations of prisons. In Estelle v. Gamble, the Supreme Court held that prison officials would violate the Eighth Amendment if they displayed “deliberate indifference” to prisoners’ medical needs. This concept has since been broadened to guarantee to all prisoners “the minimal civilized measure of life’s necessities.” Naturally, people disagree about what counts as “life’s necessities,” and prisoners have brought numerous lawsuits over the last few decades – sometimes alleging very serious abuses, but sometimes just complaining about the quality of prison food.
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