The Meaning of "Cruel and Unusual Punishment"

What exactly does the the Eighth Amendment's ban on "cruel and unusual punishment" mean?

By , Attorney · UC Law San Francisco

The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Virtually every state constitution also has its own prohibition against such penalties.

In a nutshell, the cruel and unusual punishment clause measures a particular punishment against society's prohibition against inhumane treatment. It prevents the government from imposing a penalty that is either barbaric or far too severe for the crime committed.

This article will look at how courts evaluate whether a punishment is cruel and unusual and how this standard has evolved.

Eighth Amendment: Evolving Standards of Decency

The practical meaning of "cruel and unusual" has troubled courts for generations, because it is difficult to imagine that any punishment, no matter how barbarous, should be accepted simply because it is "usual." As long ago as 1910, the Supreme Court acknowledged that "what constitutes a cruel and unusual punishment has not been exactly decided." (Weems v. U.S., 217 U.S. 349.)

Hoping to give the cruel and unusual punishment clause a more workable application, the Supreme Court began to follow the "evolving standards of decency" test. In 1958, Chief Justice Earl Warren wrote that the clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (Trop v. Dulles, 356 U.S. 86, 100-101 (1958).) The Court continues to follow the evolving standards approach today.

Eighth Amendment: The Punishment Must Fit the Crime

The evolving standards approach looks not only at the nature of the punishment in each case but also at whether it fits the severity of the crime. Courts look to the sentences for other criminals in the state where the crime occurred, and the sentences for the same crime in other states. When more serious offenses result in less punishment than the punishment being examined, or when other states punish the identical crime less severely, a court is likely to conclude that the punishment does not fit the crime and strike the sentence.

However, a punishment isn't unconstitutional simply because it is severe. The Eighth Amendment forbids only grossly excessive penalties. No particular term of years in prison is forbidden, nor is the death penalty inherently cruel or unusual. And what one court might find to be cruel and unusual, another court could find a similar sentence constitutional.

For example, the Alaska Supreme Court struck down a defendant's 36-year sentence imposed for passing a series of bad checks totaling $1,384.35 and directed the trial court to resentence the defendant. (Faulkner v. State, 445 P.2d 815 (1968).) But one might be surprised to learn that the U.S. Supreme Court once held that a 25-year-to-life sentence for stealing three golf clubs under a state's "three strikes" law wasn't unconstitutional. (Ewing v. California, 538 U.S. 11 (2003).)

Eighth Amendment: Prison and Jail Conditions

The cruel and unusual punishment clause also applies to conditions of incarceration. Prison officials may not deprive inmates of "the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention." (Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977).) Nor may they "maliciously and sadistically" use force to harm inmates. (Hudson v. McMillian, 503 U.S. 1 (1992).)

Examples of Court Rulings on Cruel and Unusual Punishment

Whether applied to prison conditions or criminal sentencing, the meaning of "cruel and unusual" isn't much clearer today than it was in 1790. However, the Supreme Court has at least determined that we must evaluate the appropriateness of particular punishments in light of developing social standards.

Here are some punishments that courts have found cruel and unusual:

  • execution of those who are insane
  • a 56-year term for forging checks totaling less than $500
  • handcuffing a prisoner to a horizontal bar exposed to the sun for several hours, and
  • a life-without-parole sentence for a juvenile who has not committed homicide.

Punishments that have been found to be constitutional include:

  • felony punishment for petty theft for a defendant with a prior felony
  • automatic probation ineligibility for sale or possession for sale of heroin
  • criminal prosecution of a homeless, chronic alcoholic for public intoxication, and
  • a life-without-parole sentence for aggravated kidnapping for ransom where the victim suffers physical injury.

Talk to an Attorney

Talk to a criminal defense attorney if you have questions regarding the constitutionality of a particular sentence, condition of the sentence, or incarceration conditions.

Read on to learn more about the origin and early applications of the ban, which dates back to 1689.

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