Cruel and Unusual Punishment

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the COMMON LAW, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community.

The EIGHTH AMENDMENT to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes. The amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." The DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT to the U.S. Constitution bars the states from inflicting such punishment for state crimes, and most state constitutions also prohibit the infliction of cruel and unusual punishment.

In attempting to define cruel and unusual punishment, federal and state courts have generally analyzed two aspects of punishment: the method and the amount. As to the method of punishment, the Eighth Amendment clearly bars punishments that were considered cruel at the time of its ADOPTION, such as burning at the stake, crucifixion, or breaking on the wheel (see In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]). In Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), the U.S. Supreme Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even if the prisoner does not suffer serious injury. When an inmate does suffer serious injury from the excessive use of force by prison officials, a violation of the Cruel and Unusual Punishment Clause is clear. In Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L. Ed. 2d 666 (2002), the U.S. Supreme Court held that the Eighth Amendment had been contravened when prison officials had disciplined an inmate for disruptive behavior by handcuffing him to a "hitching post", once for two hours and once for seven hours, depriving the inmate of his shirt, exposing him to the sun, denying his requests for hydration, and refusing to allow him the opportunity to use the bathroom.

However, a defendant need not suffer actual physical injury or pain before a punishment will be declared cruel and unusual. In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the U.S. Supreme Court held that the use of denationalization (the deprivation of citizenship) as a punishment is barred by the Eighth Amendment. The Court reasoned that when someone is denationalized, "[t]here may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development." The Court also opined that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

The U.S. Supreme Court has held that the death penalty itself is not inherently cruel, but has described it as "an extreme sanction, suitable to the most extreme of crimes" (GREGG V. GEORGIA, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Federal and state courts have upheld modern methods of carrying out the death penalty, such as shooting, hanging, electrocution, and lethal injection, as constitutional. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the death penalty upon a prisoner who is insane.

The Court has also ruled that execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. ATKINS V. VIRGINIA, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court in Atkins stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a

The "hitching post" at Alabama's Limestone Correctional facility was the subject of former inmate Larry Hope's (not pictured) lawsuit, Hope v. Pelzer, alleging cruel and unusual punishment.
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disproportionate penalty for the crime of raping an adult woman. In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), the Court held that the Eighth Amendment does not permit the imposition of the death penalty upon a defendant who aids and abets a felony during which murder is committed by someone else, when the defendant does not kill or attempt to kill, or does not intend that murder take place or that lethal force be used.

In Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), the Court applied its proportionality analysis to felony prison sentences. In Solem, the defendant had passed a bad check in the amount of $100. Although this crime ordinarily would be punishable by a maximum five-year sentence, the defendant had been sentenced to life imprisonment without PAROLE because of six prior felony convictions. The Court held that the sentence was significantly disproportionate to the defendant's crime and that it was thus prohibited by the Eighth Amendment.

The U.S. Court of Appeals for the Ninth Circuit applied the proportionality analysis in overturning the life sentence of a defendant who had been convicted under California's "threestrikes" law, which requires that courts impose harsh sentences upon defendants who have been convicted of three felonies. Cal. Penal Code Section 667. In Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002), the defendants were charged with misdemeanor petty theft for stealing three videotapes and a steering wheel alarm, together worth less than $400.00. However, because both defendants had two prior felony convictions involving violent crimes, the misdemeanor petty theft charges were enhanced and prosecuted as felonies. The Ninth Circuit ruled that the defendants' sentences constituted cruel and unusual punishment, for the trial court was effectively imposing life sentences for what was the legislature classified as a misdemeanor under any other circumstances.

The U.S. Supreme Court granted certiorari, reversed, and remanded the case with instructions for the Ninth Circuit to reconsider its decision in light of Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 144 (2003), where the Court ruled that the Eighth Amendment's proportionality principle was not violated by the imposition of two 25-years-to-life sentences under the California Three Strikes law, on a conviction of two counts of petty theft with a prior conviction. The defendant in Andrade had been convicted of stealing videotapes worth $153.54.

The prohibition on cruel and unusual punishment also bans all penal sanctions in certain situations. For example, in ROBINSON V. CALIFORNIA, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), the Court ruled that punishment may not be inflicted simply because a person is in a certain condition or has a particular illness. Robinson concerned a California statute (Cal. Health & Safety Code § 11721 [West]) that criminalized addiction to narcotics, rather than the possession, use, or sale of them. The Court struck down the statute, stating,

We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment…. To be sure, impris onment for ninety days [the sentence imposed in this case] is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.