Cruel and Unusual Punishment

The primary addressee of the prohibition against cruel and unusual punishments as a limitation on the power to define crimes and their punishments is the legislature. In this case, however, care should be taken not to confuse the question of the principle's scope with that of its addressee. This common error derives from the assumption that the legislature enjoys a monopoly over the definition of crimes and punishments. This assumption holds, at least formally, only in federal law, where courts are precluded from generating a common, that is, nonstatutory, criminal law. The same does not hold for the bulk of American criminal law, which is state law and until recently relied heavily on judge-made common law. The principle, therefore, would apply to any definition of crimes and their punishments, regardless of its author. In this context, it should be noted that the federal prohibition of cruel and unusual punishments was not applied to state criminal law until 1962 (Robinson v. California, 370 U.S. 660 (1962)).

Crimes. The cruel and unusual punishments clause has the potential of serving as the constitutional backbone for the basic principles of substantive criminal law. To begin with, the clause presumably would prohibit the state today from providing for the punishment of nonpersons, such as animals and inanimate objects, familiar in premodern punishment. Within the class of persons, the state also would be barred from criminalizing the behavior of certain individuals who lack basic capacities, such as the insane and infants. The proscription of cruel and unusual punishment, however, would not apply to other state controls directed at these persons, provided that they do not qualify as punishment, such as civil commitment of one form or another.

These restrictions upon the object of punishment are distinguished from those upon the ground of punishment, that is, that which may trigger the threat, the imposition, or even the infliction of punishment. The material criminal law teaches us that even a person who would generally qualify for punishment may not be punished unless certain formal and substantive conditions are met, which generally mirror the distinction between the general part and the special part of criminal law.

Attempts to interpret the principle as a constitutional foundation for these conditions of criminalization and punishability have met with little success. The Supreme Court, for example, has yet to declare mens rea a constitutional prerequisite, even if mens rea is expansively defined to include negligence, a nonintentional mental state. Strict liability crimes, that is, crimes that require no mental states whatsoever, persist on the books and, in fact, continue to multiply with the expansion of modern regulatory offenses.

Even the constitutional status of actus reus, the best candidate for a bedrock prerequisite for punishability, remains in doubt. The Supreme Court invoked the principle in a 1962 opinion to strike down a California law making it a misdemeanor "to be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics." The Court reasoned that drug addiction is a disease and, as such, could not be punished under the proscription of cruel and unusual punishments (Robinson v. California).

Robinson has been interpreted more generally to proscribe all status offenses, including those based upon a status other than that of a sick person. Six years later, in Powell v. Texas, 392 U.S. 514 (1968), the Supreme Court clarified that Robinson should not be read to constitutionalize another aspect of actus reus, the voluntariness requirement. Other components of actus reus find a constitutional basis, if any, elsewhere. So punishing mere thoughts may run afoul of the first amendment's free speech guarantee, while the boundaries of omission liability are drawn by the due process clause (Lambert v. California, 355 U.S. 225 (1957)).

Attempts to derive from the cruel and unusual punishments clause substantive limitations on criminalization, as opposed to punishability, have been even less successful. The Robinson opinion, for example, has not been interpreted broadly to condemn the criminalization of drug possession, rather that of drug addiction, but has in fact been interpreted narrowly, as the Powell case makes clear. More recent cases on the scope of the state's power to criminalize often ignore the Eighth Amendment altogether (e.g., Bowers v Hardwick, (478 U.S. 186 (1986)), upholding anti-sodomy statute against due process attack).

Punishments. In contrast to the question of whom the state may punish for what, that of how the state may do the punishing falls squarely within the scope of the cruel and unusual punishments clause. So the clause prohibits torturous and barbaric punishments. What constitutes torture and barbarity depends on the application of the Trop decency standard. As we have seen, the Eighth Amendment does not condemn capital punishment. A state today presumably would not be free to provide for other corporal punishments, such as mutilation, lobotomy, and castration, at least if they are to be inflicted without explicit consent. The Supreme Court, however, has not seen fit to impose Eighth Amendment limitations on the quantity of noncorporal punishment, including life imprisonment without the possibility of parole.

Similarly, certain punishments, though generally unobjectionable under the Eighth Amendment, are cruel and unusual when imposed on certain defendants. So the death penalty may be imposed on defendants who are mentally retarded without being criminally insane (Penry v. Lynaugh, 492 U.S. 302 (1989)), but not on those who were under sixteen years of age at the time of the offense, though such defendants may be sentenced to life imprisonment without the possibility of parole (Harris v. Wright, 93 F.3d 581 (9th Cir. 1996)).

Crimes and punishments (proportionality).

Whether the Eighth Amendment reaches the relation between crimes and punishments, that is, the proportionality of punishment, may depend on the nature of the punishment in question. There is consensus that the punishment must be proportionate to the crime in death penalty cases. The Supreme Court has been less clear on the question of whether a proportionality requirements also attaches to noncapital punishments, and, assuming it does, what it looks like. In the capital context, the Supreme Court has invoked the proportionality principle to strike down a statute that provided the death penalty for the rape of an adult woman. The proportionality principle may also constrain a legislature's discretion to specify death as the punishment for certain types of felony murder.

In noncapital cases, the Supreme Court has struggled to find a workable proportionality test. In an irreconcilable series of opinions on recidivist statutes decided within a space of three years, the Supreme Court upheld a life sentence and a forty-year prison term, but struck down another life sentence (Rummel v. Estelle, 445 U.S. 263 (1980); Hutto v. Davis, 454 U.S. 370 (1982); Solem v. Helm, 463 U.S. 277 (1983)). The last case in the series attempted to steady the jurisprudence in this area with a three-prong test that looked to the gravity of the offense compared to the severity of the penalty, the sentences imposed for other crimes in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions. The Solem test, however, proved short lived. Only eight years later, in a case upholding a sentence of life imprisonment without the possibility of parole for simple drug possession, a majority of the Supreme Court rejected the test, with two justices in the majority going so far as to suggest that the Eighth Amendment places no proportionality requirement on noncapital punishments, while the remaining three opined that the Amendment forbids only grossly disproportionate noncapital punishments (Harmelin).