Cruel and Unusual Punishment

The prohibition of cruel and unusual punishments is one of the most important constitutional limitations upon the penal process. Like the general guarantees of due process and equal protection, it has been applied to every aspect of that process, ranging from the definition of criminal norms and the consequences of their violation (the subject of substantive criminal law), to the imposition of punishment (criminal procedure), and to its eventual infliction (prison or correction law). As such, it addresses participants at all stages of the penal process, including the legislature, the judiciary (whether professional or lay, permanent or temporary), and the executive at the end of the punishment line, including wardens, prison guards, and the literal "executioner."

The prohibition appears in federal and state constitutions alike, with occasional slight variations ("cruel or unusual" or "cruel and unusual"). This article focuses on the scope of the federal provision, as interpreted by the U.S. Supreme Court. It should be noted, however, that the scope of the federal prohibition does not necessarily match that of its state analogues. For example, in 1992 the Michigan Supreme Court overturned on state constitutional grounds the very penalty that the United States Supreme Court had upheld under the federal cruel and unusual punishments clause the previous year (Harmelin v. Michigan, 501 U.S. 957 (1991); People v. Bullock, 485 N.W.2d. 866 (Mich. 1992)).

The federal version of the principle appears in the Eighth Amendment, which provides in its entirety that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The excessive bail and fines clauses have proved far less significant as limitations on the state's power to punish than has the general proscription of cruel and unusual punishments.

The history of the prohibition of cruel and unusual punishments is uncontroversial in one sense, hotly contested in another. Everyone agrees that its wording stems from an identical provision in the English Bill of Rights of 1689. There is no similar consensus on the nature, or the contemporary significance, of the Framers' intent behind its insertion in the Bill of Rights.

One of the most important disagreements about the Framers' intent concerns the extent to which they meant to constrain the legislative definition of crimes and their punishments. Some argue that the Framers intended the prohibition of "cruel and unusual punishments" to apply only to the definition of punishments. Others discern an intent to limit also the definition of crimes as well as the relation (or "proportionality") of crimes and their punishments.

Disagreements about the contemporary significance of the Framers' intent, whatever it might be, reflect the more general debate about the proper approach to constitutional interpretation and related conceptions of the Supreme Court's role. Those who favor a restrictive role for the Court prefer that it stick to fathoming the Framers' intent behind a given constitutional provision. Others advocate a more flexible interpretative approach, occasionally appropriating the restrictive approach by claiming that the Framers intended that a given provision be interpreted flexibly.

The Supreme Court in recent decades has favored a more expansive approach to the clause, one that takes into account the "evolving standards of decency that mark the progress of a maturing society." This test was first announced in a plurality opinion by Chief Justice Earl Warren in the 1958 case of Trop v. Dulles, 356 U.S. 86, which invoked the principle to strike down the punishment of denationalization for military desertion as "obnoxious" in an "enlightened democracy such as ours" (p. 100).

The malleable Trop test itself has been interpreted more or less expansively since its appearance. Its references to evolution, progress, and maturation have been used to disregard historical intent and practice alike. At the same time, its reference to societal standards has been invoked to limit the courts' power to invalidate existing legislation. As with similarly broad tests framed in terms of the sense of justice or the conscience of the community, which used to be far more common in constitutional law than they are today, society's standards of decency have been difficult to pin down.

This epistemic difficulty has been resolved in two ways. On the one hand, the Supreme Court has invoked general principles, such as "humanity" and "the dignity of man," from which it deduced more particular limitations on the power to punish, as in Trop itself. On the other hand, the Court more recently has turned to empirical evidence of society's attitude toward a particular punishment, including legislative activity, prosecutorial charging practices, and jury verdicts. For example, the constitutionality of capital punishment was upheld based on evidence that, following the Court's decision to strike down all existing death penalty statutes in Furman v. Georgia, 408 U.S. 238 (1972), legislators passed new death penalty statutes, prosecutors continued to seek the death penalty, and jurors persisted in imposing it. In its search for standards of decency in American society, the Court has not consulted abolitionist developments in the laws of other countries and in the international law of human rights.

In addition to speculating about the Framers' intent and plumbing societal standards, the Supreme Court has also parsed the precise formulation of the principle to define its scope. It has been argued, for instance, that the clause's prohibition of cruel and unusual punishments (rather than cruel or unusual, or simply cruel, punishments) insulates common punishments from constitutional scrutiny—at least under the Eighth Amendment—regardless of their cruelty, no matter how cruel they might be. The plural "punishments" may suggest a similarly restrictive interpretation of the clause, which would limit its application to particular penalties, rather than treating it as the source for a wide range of constraints on punishment generally speaking.

The reference to "punishments" in the principle limits its scope in other ways as well. Most generally, this reference has been interpreted as rendering the principle inapplicable outside the penal process, including the use of corporal "punishment" in schools (Ingraham v. Wright, 430 U.S. 651 (1977)). Within the realm of the penal process, it has been invoked to remove nonintentional acts of prison officials from the reach of the principle on the ground that the concept of "punishment" presumes intention (Wilson v. Seiter, 501 U.S. 294, 300 (1991)). Moreover, even intentional acts of prison officials fall outside the principle's scope if they are perpetrated against inmates prior to their conviction, the formal prerequisite for the imposition and eventual infliction of "punishment" (Ingraham v. Wright, 430 U.S. 651, 671–672, n. 40 (1977)). The constitutional constraints upon the treatment of students and pretrial detainees instead derive from the general guarantees of due process and equal protection, both of which apply to all state actions, regardless of their classification as punitive or not. The due process clause, for example, in keeping with the presumption of innocence prohibits the infliction of any kind of punishment on pretrial detainees, even if it is neither cruel nor unusual (Bell v. Wolfish, 441 U.S. 520, 537 (1979)).

The cruel and unusual punishments clause today speaks to all aspects of the penal process. It remains to be seen whether it will ever realize its potential as the single most important source of substantive constitutional constraints upon American penal law, alongside the due process clause, which has long been recognized as the root of significant procedural rights.