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As with the other sections of the Bill of Rights discussed in this text, there was little meaningful discussion or interpretation of the Eighth Amendment in the 19^th century. What few cases did arise at the state level illustrated a division between those who believed the Eighth Amendment prevented a specific type of cruel and barbarous punishments—but no more—and those who believed the Eighth Amendment contained a broader prohibition against punishments disproportionate to the offense, or out of line with reason and contemporary social standards.

Proportionality

The Supreme Court did not interpret the Eighth Amendment until the 20^th century, specifically in the 1910 case Weems v. United States. While the federal government had continued to grow since the Civil War, creating more opportunities for Congress to pass criminal laws that might lead to an Eighth Amendment challenge, Weems instead came from the country’s belated attempts at colonization. After Spain’s defeat in the 1898 Spanish-American War, the United States took control of several former Spanish colonies, including the Philippine Islands. Following a period of armed conflict between the United States and Filipino insurgents, Congress created a political system for the islands that included a Bill of Rights, with provisions that mirrored those in the U.S. Constitution. This meant that the Supreme Court had authority and oversight over rulings of the Supreme Court of the Philippine Islands.

Weems, an American official in the Bureau of the Coast Guard, was convicted by the local government of falsifying official documents. He was sentenced to a punishment, carried over from Spanish rule, referred to as the cadena temporal: at least twelve years of hard labor while being chained at the ankles and wrists, being permanently barred from voting and holding political office, and subject to indefinite government surveillance. Weems appealed his conviction under the provision of the Philippine Bill of Rights that mirrored the Eighth Amendment’s prohibition on cruel and unusual punishment. His sentence was upheld by the islands’ Supreme Court, after which he appealed to the United States Supreme Court.

The Court took the case and, in a 4-2 decision, not only struck down the sentence but held that the Eighth Amendment contains a ban on punishments grossly disproportionate to the crime committed.

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Weems v. United States

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217 U.S. 349 (1910)

Facts: Weems, an American official in the Philippines during the period when that nation was a colony of the United States, was convicted of falsifying official documents and sentenced to fifteen years of hard labor, as well as being permanently barred from voting and subject to indefinite surveillance. After his sentence was upheld by the Supreme Court of the Philippines, he appealed to the United States Supreme Court.

Question: Did Weems’ sentence violate the Eight Amendment’s ban on cruel and unusual punishment?

Vote: Yes, 4-2

For the Court: Justice McKenna

Dissenting opinion: Justice White

JUSTICE McKENNA delivered the opinion of the court.

This writ of error brings up for review the judgment of the supreme court of the Philippine Islands, affirming the conviction of plaintiff in error for falsifying a “public and official document.”

In the “complaint,” by which the prosecution was begun, it was charged that the plaintiff in error, “a duly appointed, qualified, and acting disbursing officer of the Bureau of Coast Guard and Transportation of the United States Government of the Philippine Islands,” did, as such, “corruptly, and with intent then and there to deceive and defraud the United States Government of the Philippine Islands and its officials, falsify a public and official document, namely, a cash book of the captain of the port of Manilla, Philippine Islands, and the Bureau of Coast Guard and Transportation of the United States Government of the Philippine Islands,” kept by him as disbursing officer of that bureau…

He was convicted, and the following sentence was imposed upon him:

To the penalty of fifteen years of cadena, together with the accessories of section 56 of the Penal Code, and to pay a fine of 4,000 pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to pay the costs of this cause.

The judgment and sentence were affirmed by the supreme court of the islands…

The assignment of error is that “a punishment of fifteen years’ imprisonment was a cruel and unusual punishment, and, to the extent of the sentence, the judgment below should be reversed on this ground.” …

A false entry is all that is necessary to constitute the offense. Whether an offender against the statute injures anyone by his act, or intended to injure anyone, is not material, the trial court held…

[For] “Falsification of Official and Commercial Documents and Telegraphic Despatches,” Article 300 provides as follows:

The penalties of cadena temporal and a fine of from 1,250 to 12,500 pesetas shall be imposed on a public official who, taking advantage of his authority, shall commit a falsification… by perverting the truth in the narration of facts…

By other provisions of the Code, we find that there are only two degrees of punishment higher in scale than cadena temporal — death, and cadena perpetua. The punishment of cadena temporal is from twelve years and one day to twenty years which “shall be served” in certain “penal institutions.” And it is provided that “those sentenced to cadena temporal and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.”

There are, besides, certain accessory penalties imposed, which are defined to be (1) civil interdiction; (2) perpetual absolute disqualification; (3) subjection to surveillance during life…

The penalty of perpetual absolute disqualification is the deprivation of office, even though it be held by popular election, the deprivation of the right to vote or to be elected to public office, the disqualification to acquire honors, etc., and the loss of retirement pay, etc.

These provisions are attacked as infringing that provision of the Bill of Rights of the islands which forbids the infliction of cruel and unusual punishment. It must be confessed that they, and the sentence in this case, excite wonder in minds accustomed to a more considerate adaptation of punishment to the degree of crime. In a sense, the law in controversy seems to be independent of degrees. One may be an offender against it, as we have seen, though he gain nothing and injure nobody… The minimum term of imprisonment is twelve years, and that, therefore, must be imposed for “perverting the truth” in a single item of a public record, though there be no one injured, though there be no fraud or purpose of it, no gain or desire of it…

We can now give graphic description of Weems’ sentence and of the law under which it was imposed. Let us confine it to the minimum degree of the law, for it is with the law that we are most concerned. Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment… He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the “authority immediately in charge of his surveillance,” and without permission in writing… What painful labor may mean, we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain. Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense…

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…

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 provision received very little debate in Congress. We find from the Congressional Register, 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.

No case has occurred in this court which has called for an exhaustive definition…

The court quoted 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.” …

It appears, therefore, that [the Federalists] 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 [the Anti-Federalists] 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…

… 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…

From this comment we turn back to the law in controversy. Its character and the sentence 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…

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…

JUSTICE WHITE, dissenting.

… The Philippine Bill of Rights, which is construed and applied, is identical with the cruel and unusual punishment clause of the Eighth Amendment… The ruling now made, therefore, is an interpretation of the Eighth Amendment, and announces the limitation which that Amendment imposes on Congress when exercising its legislative authority to define and punish crime. The great importance of the decision is hence obvious.

Of course, in every case where punishment is inflicted for the commission of crime, if the suffering of the punishment by the wrongdoer be alone regarded, the sense of compassion aroused would mislead and render the performance of judicial duty impossible. And it is to be conceded that this natural conflict between the sense of commiseration and the commands of duty is augmented when the nature of the crime defined by the Philippine law and the punishment which that law prescribes…

… Turning aside, therefore, from mere emotional tendencies, and guiding my judgment alone by the aid of the reason at my command, I am unable to agree with the ruling of the court. As, in my opinion, that ruling rests upon an interpretation of the cruel and unusual punishment clause of the Eighth Amendment, never before announced, which is repugnant to the natural import of the language employed in the clause, and which interpretation curtails the legislative power of Congress to define and punish crime by asserting a right of judicial supervision over the exertion of that power, in disregard of the distinction between the legislative and judicial department of the government, I deem it my duty to dissent and state my reasons…

Before approaching the text of the Eighth Amendment to determine its true meaning, let me briefly point out why, in my opinion, it cannot have the significance which it must receive to sustain the propositions rested upon it. In the first place, if it be that the lawmaker, in defining and punishing crime, is imperatively restrained by constitutional provisions to apportion punishment by a consideration alone of the abstract heinousness of the offenses punished, it must result that the power is so circumscribed as to be impossible of execution… the paralysis of the discretion vested in the lawmaking authority which the propositions accomplish is immeasurably magnified…

But let me come to the Eighth Amendment, for the purpose of stating why the clause in question does not, in my opinion, authorize the deductions drawn from it, and therefore does not sanction the ruling now made…

the provision in reference to cruel and unusual punishments was taken from the well-known act of Parliament of 1688, entitled ‘An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.’

… Whatever may be the difficulty, if any, in fixing the meaning of the prohibition at its origin, it may not be doubted, and indeed is not questioned by anyone, that the cruel punishments against which the Bill of Rights provided were the atrocious, sanguinary, and inhuman punishments which had been inflicted in the past upon the persons of criminals… In other words, the prohibitions, although conjunctively stated, were really disjunctive, and embraced braced as follows: a) prohibitions against a resort to the inhuman bodily punishments of the past; b) or, where certain bodily punishments were customary, a prohibition against their infliction to such an extent as to be unusual and consequently illegal; c) or the infliction, under the assumption of the exercise of judicial discretion, of unusual punishments not bodily, which could not be imposed except by express statute, or which were wholly beyond the jurisdiction of the court to impose…

Undoubtedly, in the American states, prior to the formation of the Constitution, the necessity for the protection afforded by the cruel and unusual punishment guaranty of the English Bill of Rights had ceased to be a matter of concern, because, as a rule, the cruel bodily punishments of former times were no longer imposed… Despite these considerations, it is true that some of the solicitude which arose after the submission of the Constitution for ratification, and which threatened to delay or prevent such ratification, in part, at least, was occasioned by the failure to guarantee against the infliction of cruel and unusual punishments…

That the opposition to the ratification in the Virginia convention was earnestly and eloquently voiced by Patrick Henry is too well known to require anything but statement. That the absence of a guaranty against cruel and unusual punishment was one of the causes of the solicitude by which Henry was possessed is shown by the debates in that convention. Thus, Patrick Henry said:

In this business of legislation, your members of Congress will lose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your Declaration of Rights. What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany — of torturing to extort a confession of the crime…

These observations, it is plainly to be seen, were addressed to the fear of the repetition, either by the sanction of law or by the practice of courts, of the barbarous modes of bodily punishment or torture, the protest against which was embodied in the Bill of Rights in 1689…

But this obvious result lends no support to the theory that the adoption of the Amendment operated or was intended to prevent the legislative branch of the government from prescribing, according to its conception of what public policy required, such punishments, severe or otherwise, as it deemed necessary for the prevention of crime, provided, only, resort was not had to the infliction of bodily punishments of a cruel and barbarous character…

… This is so since the first crimes act of the United States prescribed punishments for crime utterly without reference to any assumed rule of proportion, or of a conception of a right in the judiciary to supervise the action of Congress in respect to the severity of punishment, excluding, always, the right to impose as a punishment the cruel bodily punishments which were prohibited…

Of course, it may not be doubted that the provision against cruel bodily punishment is not restricted to the mere means used in the past to accomplish the prohibited result. The prohibition, being generic, embraces all methods within its intendment. Thus, if it could be conceived that tomorrow the lawmaking power, instead of providing for the infliction of the death penalty by hanging, should command its infliction by burying alive, who could doubt that the law would be repugnant to the constitutional inhibition against cruel punishment? …

Of course, the beneficent application of the Constitution to the ever-changing requirements of our national life has, in a great measure, resulted from the simple and general terms by which the powers created by the Constitution are conferred, or in which the limitations which it provides are expressed. But this beneficent result has also essentially depended upon the fact that this court, while never hesitating to bring within the powers granted or to restrain by the limitations created all things generically within their embrace, has also incessantly declined to allow general words to be construed so as to include subjects not within their intendment…

Weems did not lead to a surge of new Eighth Amendment cases, given the unusual background of the law in question. It did, however, create a long-standing precedent that the cruel and unusual punishment clause contains a proportionality principle. While not every justice agrees with Weems today, its interpretation of the clause has been supported by a majority of justices for decades.