Cruel and Unusual Punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment did not receive much attention during the debate over the Bill of Rights in the First Congress. That said, what evidence we do have regarding its debate and passage suggests that then as now, there was disagreement over what the amendment’s text meant and what its goals were.
Most justices and scholars agree that the roots of the Eighth Amendment lie in the 1689 English Bill of Rights, the landmark British law passed by Parliament after the Glorious Revolution. Prior to their banishment, the 17th-century rule of the Stuart monarchs had been marked by particular cruelty towards enemies of the Crown—with many opponents not only sentenced to death, but hung, disemboweled, beheaded, and then cut into quarters. The 1689 Bill of Rights included language that prohibited such punishments, as well as preventing judges from creating novel and cruel sentences for specific defendants that the law did not permit. During the ratification debate, Anti-federalists such as Patrick Henry attacked the original Constitution for providing no similar protections against slipping back into such practices. The Eighth Amendment then, at a minimum, mirrored the protections the 1689 law had established.
Revolution-era America was not of one mind when defining what was excessive, outside of rejecting the extreme examples seen above. On the one hand, colonial elites increasingly supported the Enlightenment theories of thinkers like Beccaria, who had argued that sentences should be proportionate to the crimes committed, rather than having severe punishments for most crimes. This belief also dovetailed with the reality of the jury institution—juries would sometimes refuse to find someone guilty–even if the facts were clear–if they felt the punishment for the crime was too severe.
On the other hand, many in the Founding generation remained comfortable with punishments we would find abhorrent today. During what little debate over the Eighth Amendment appeared in the Congressional Record, Representative Livermore infamously remarked, “It is sometimes necessary to hang a man, villains often deserve a whipping, and perhaps having their ears cut off, but are we in the future to be prevented from inflicting those punishments because they are ‘cruel’?” Clearly, regardless of how contemporary judges interpret the phrase “cruel and unusual punishment,” no court today would allow someone to be whipped in the public square or have their ear cut off as punishment. Does this mean the Eighth Amendment’s definition of “cruel and unusual” must change as society changes?
Here are four different arguments about the Eighth Amendment woven throughout the cases that follow. We’ll trace how support for these different views changes over time in our materials.
1. The Eighth Amendment was designed to prevent Congress (and after the incorporation, the states) from reverting to the barbarous punishments of Stuart England. In other words, the Eighth Amendment bans torture, cruel executions, or punishment inflicted only for the sake of causing pain, but does not contain a general proportionality principle, nor change over time along with society’s views.
The more sophisticated version of this view does not limit the amendment’s protections only to those punishments considered cruel in 1791. New forms of torture or newly developed barbaric methods of execution would be similarly barred.
The primary objection to this interpretation is that it would not ban punishments most people today would find intolerable, such as having someone whipped for adultery or a 20-year prison sentence for jaywalking. Courts should not support a principle, the response goes, that juries will be unwilling to implement at trial.
2. The Eighth Amendment contains a proportionality principle. This view notes that the other clauses of the Eighth Amendment ban excessive bail and excessive fines, suggesting the Framers supported a proportionality principle that should be applied to punishments as well.
Incorporating a proportionality principle into the Eighth Amendment solves some problems while creating others. It prevents extreme sentences for relatively small crimes and addresses the concern with juries refusing to find someone guilty in such situations. It also creates national standards for punishment, policing extreme outliers among the states (where one state, for example, has ten times the prison sentence for a crime relative to the next most punitive state).
At the same time, it raises difficult questions about when the Court should intercede. This is particularly a problem for assessing the length of prison sentences. It might seem unreasonable, for example, to sentence someone to prison for 30 years for a drug possession charge. What about 25 years? 20? What counts as a “grossly disproportionate” sentence, and what instead might be inside a reasonable zone of disagreement? Many justices are concerned that overseeing proportionality could put the Court in the position of setting criminal justice policy, rather than policing clear violations.
3. Cruel and unusual punishment should be interpreted according to “evolving standards of decency.” This phrase, drawn from Trop v. Dulles in 1958, states that the Court must judge what is cruel and unusual according to the current standards of society. Cutting off someone’s ear may have been considered appropriate in 1791, but it is not today, and it is today’s views that should control what states can do.
As with proportionality, this principle can be difficult to implement. Outliers—such as cutting off ears or dunking women in a river—can be easily recognized. The primary criticism is that judges may assess punishments according to their own views on what is cruel and unusual, rather than making a more objective assessment of “society’s” views.
The most recent court decisions employing this standard both examine “objective indicators” of societal views—such as how many states out of 50 employ a type of punishment—as well as conduct their own analysis regarding whether a punishment is proportionate, excessive, unnecessarily cruel, or unrelated to the states’ stated penological goals.
4. Finally, it’s unclear what “unusual” adds to the clause. The heart of “cruel and unusual” punishment focuses on cruelty, particularly unnecessary, unjustified, or excessive sentences. It’s less clear what the modifier “unusual” adds to the analysis. Courts have not found “unusual” to be a separate hurdle for states to meet; newly developed punishments are not automatically suspect absent some cruelty or excessiveness.
Some scholars and judges think the term was simply sloppy drafting. Others think it was meant to reinforce that judges lack the authority to introduce new and cruel punishments not already authorized by legislatures, as noted in the first theme. Still others hold the phrase was aimed at preventing harsh punishments that deviated from historical or traditional practice.
