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Cruel and Unusual Punishment Under the Eighth Amendment

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James Madison, writer of the Bill of Rights and 4th President of the United States

Many of us use the term “cruel and unusual punishment” in a colloquial way. For example, “sitting through my niece’s modern dance recital was cruel and unusual punishment” or “looking at her 80’s revival outfit was cruel and unusual punishment.” Despite the informal conversations we insert this saying into, its roots are very formal and notable—the Bill of Rights of the Constitution of the United States of America. 

The Constitution is the longest lasting set of laws for our country and has been around since 1789. In a wise moment, the Founding Fathers realized that laws that are set in stone are not conducive to a functional government. Because of this, they created ways in which the Constitution could be edited, deleted, or amended. The first addition to the Constitution is the Bill of Rights, which is the formal name for the first ten amendments. These amendments, or additions, were introduced by James Madison and became official on December 15, 1791. Arguably these amendments, more than any other part of the Constitution, are symbols for the freedoms we enjoy as Americans and serve as examples of how our government is different than others.  The Bill of Rights secures such things as freedom of speech, right to bear arms, and right to be tried by a jury of peers.


What Is The Eighth Amendment?

The Eighth Amendment to the United States Constitution protects people from excessive bail, excessive fines, and cruel and unusual punishment. As you can see from the casual use of the term “cruel and unusual punishment” in the introduction of this piece, there is a broad spectrum concerning it’s meaning—it can be applied in an informal way to a 25 page paper for an introductory level college class or to torture. Because of the discrepancies present, there have been many Supreme Court cases involving defining what “cruel and unusual punishment” is where our government is concerned.

What Constitutes Cruel and Unusual Punishment?

Originally, cruel and unusual punishment was a term that was applied almost exclusively to torture, so it’s presence in the Constitution prevented prison guards or other government officials from torturing people in prison. Throughout our many years as a country, however, cases in the Supreme Court have challenged that definition and requested its expansion. In 1878 in Wilkerson v. Utah the Supreme Court ruled that certain acts are cruel and unusual, and thus illegal, regardless of the crime the perpetrator has committed. These include public dissection and disembowelment, among other things. In more recent years the Supreme Court has also decreed that executing anyone who is mentally handicapped, regardless of the crime they have committed, should not be allowed. Another punishment that is never allowed is the execution of people who were under age 18 when their crime was committed, as established in Roper v. Simmons.

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The Bill of Rights of the United States of America

Recent Additions

While the abovementioned restrictions exist regardless of the crime committed, the Supreme Court has also determined that there are certain situations where punishments are considered cruel and unusual. For example, while it is legal to give a life sentence without chance of parole in certain situations, Miller v. Alabama determined that this sentence is cruel and unusual punishment for a minor. Another example is from the case of Coker v. Georgia. In certain circumstances, it is not considered cruel and unusual punishment for a criminal to be given the death penalty. In 1977, however, in this particular case, the Supreme Court determined that the death sentence is cruel and unusual punishment when given for the rape of a woman, the implication being that the death penalty should only be given in crimes where death occurs.  Perhaps the most famous Supreme Court case involving the Eighth Amendment was Furman v. Georgia, wherein the Supreme Court of 1972 determined that the death penalty was unconstitutional, though it was later reversed by the 1976 case Gregg v. Georgia. In the later of the two cases, the Supreme Court accepted the death penalty as constitutional, though they created guidelines that individual states must follow to keep the death penalty constitutional.

            The definition of what is cruel and what is unusual where punishment is concerned has been expanded and further defined through our nation’s history. Although facets of these criteria are embedded in the individual cases, Justice William Brennan, a judge involved in the Furman v. Georgia case of 1972, gave the best overall definition. He stated four simple criteria regarding classifying a punishment as cruel and unusual. First, “a punishment must not[,] by its severity[,] be degrading to human dignity.” Second he stated that “a severe punishment that is obviously inflicted in [a] wholly arbitrary fashion” is cruel and unusual. He also said that “a severe punishment that is clearly and totally rejected throughout society” and “a severe punishment that is patently unnecessary” are considered cruel and unusual, and thus are illegal according to the Eighth Amendment.

            Even though the Eighth Amendment has been expanded and further defined by a number of Supreme Court cases, the idea behind it is still the same as when James Madison wrote it—the government of the United States should not, and by law cannot, punish it’s citizens in a cruel or unusual fashion. Through it’s presence in the Constitution, we are can avoid torture and other punishments at the hands of the United States government.

Larry Nowak
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