Cruel and Unusual Punishments
The Issue: What constitutes a "cruel and unusual punishment" within the meaning of the Eighth Amendment?
Introduction What exactly is a "cruel and unusual punishment" within the meaning of the Eighth Amendment? Did the framers intend only to ban punishments-- such as "drawing and quartering" a prisoner, or having him boiled in oil or burned at the stake--that were recognized as cruel at the time of the amendment's adoption? Or did they expect that the list of prohibited punishments would change over time as society's "sense of decency" evolved? One clue to the expectations of the framers comes from the debates of the First Congress that proposed the Eighth Amendment. On the floor of the House, Representative Livermore complained about the vagueness of the amendment's language: "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'?" Despite Livermore's objections, the vague language, subject to new interpretation over time, was left unchanged and the amendment ratified. The Supreme Court in the 1958 case of Trop v Dulles. expressly endorsed the view that what are prohibited "cruel and unusual punishments" should change over time, being those punishments which offend society's "evolving sense of decency."
The cases on this page suggest the wide variety of questions raised by the Eighth Amendment.
In Frances v Resweber. the Court considers whether a state can put a condemned man on an electric chair a second time, after sending a non-lethal bolt of electricity through him in its first attempt. By a 5 to 4 vote, the Court in Frances permits the second execution, with the majority concluding that the "cruelty" of the punishment at issue should not be measured by what happened in the past or the mental anguish the prisoner might feel as he awaits his second date with the chair. The four dissenters, however, contended that the sequence of events was relevant, and that no one would doubt but that a punishment that consisted of two jolts of electricity weeks apart would be cruel.
In the 1970s, the Court addressed the constitutionality of the death penalty itself, finally concluding that, with proper procedures in place, the penalty was constitutional. (For a discussion of those cases, see the Death Penalty page on this site.)
Ingraham v Wright considered the use of corporal punishment in Florida public schools. In the case under consideration, one students was subjected to such a severe beating with a wooden paddle as to cause hematoma requiring medical attention and another was deprived of the use of his arm for a week. By a 5 to 4 vote, however, the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment's provisions to apply to discipline in the public schools. The four dissenters disagreed, arguing that nothing in
the text of the amendment suggests the limitation found by the majority.
Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes? Would it be unconstitutional to give a life sentence for double-parking? What about a life sentence for possession of cocaine? That letter question was the issue presented in Harmelin v Michigan (1991), in which the Court (5 to 4) upheld the sentence of life imprisonment for the first-time offense of possession of cocaine (albeit a large amount of cocaine). Two justices (Scalia and Rehnquist) argued that the Eighth Amendment did not address the proportionality of punishments at all. Four justices would have reaffirmed an earlier decision that adopted a three-prong test to determining disproportionate punishments and would have reversed Harmelin's conviction. A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions.
In Hudson v McMillian (1992) the Court considered whether the beating by prison guards of a handcuffed inmate at Louisiana's Angola prison violated the inmate's Eighth Amendment rights. Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause even though the inmate suffered no permanent injuries or injuries that required hospitalization. In so holding, the Court rejected the lower court's argument that only beatings that caused "significant injuries" (read as injuries that were permanent or required hospitalization) rose to the level of Eighth Amendment violations. In dissent, Justices Thomas and Scalia argued (controversily) that the Eighth Amendment was intended to reach beatings by guards at all--rather only judicially-imposed sentences.
In Roper v Simmons (2005) the Court considered whether it was cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor. In previous decisions, the Court had found it unconstitutional to execute persons who were less than 16 at the time of their crime, but had upheld executions of those 16 and 17 at the time of their crimes. (The Court had also, in 2002, held it to be a violation of the Eighth Amendment to execute mentally retarded persons.) Voting 5 to 4, the Court in Roper cited recent evidence to conclude that the execution of persons who were minors at the time of their crimes now violated "evolving standards of decency" and, hence, the Eighth Amendment.
Supreme Court Rules that Life Without Parole for Minors Violates the Eighth Amendment
In Graham v. Florida (2010), the Supreme Court, by a vote of 5 to 4, ruled that the Eighth Amendment does not permit sentences of life without possibility of parole for minors who commit nonhomicide crimes. Justice Kennedy, in his opinion for the Court, wrote:
Chief Justice Roberts concurred on the narrower grounds that a proportionality review made the sentence unconstitutional for the minor whose case was before the Court. Scalia, Thomas, and Alito dissented.