CRUEL AND UNUSUAL PUNISHMENT

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
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, imprisonment
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.

FURTHER READINGS
Denno, Deborah W. 2000. “Adieu to Electrocution.” Ohio Northern University Law Review 26 (summer): 665–88.

Harding, Roberta M. 1994. “‘Endgame’: Competency and the Execution of Condemned Inmates—A Proposal to Satisfy the Eighth Amendment’s Prohibition against the Infliction of Cruel and Unusual Punishment.” St. Louis University Public Law Review 14.

LaFave, Wayne R., and Austin W. Scott Jr. 1986. Substantive Criminal Law. St. Paul,Minn.:West. Macready, Dawn. 2000. “The ‘Shocking’ Truth About the Electric Chair: An Analysis of the Unconstitutionality of Electrocution.”Ohio Northern University Law Review 26 (summer): 781–800.

Nelson, Diane A. 1993. “Hudson v. McMillian: The Evolving Standard of Eighth Amendment Application to the Use of Excessive Force Against Prison Inmates.” North Carolina Law Review 71 (June).

CROSS-REFERENCES
Capital Punishment; Determinate Sentence; Juvenile Law; Sentencing.

Is Death by Electrocution Cruel and Unusual under Evolving Standards?

Convicted killer Kenneth Spivey’s
attorneys argued that Spivey’s
impending death in Georgia’s electric
chair constituted cruel and unusual
punishment under the EIGHTH AMENDMENT
and the FOURTEENTH AMENDMENT
to the Constitution of the United
States. In a March 2001 opinion that initially
stayed s punishment, Justice Leah J.
Sears wrote, “Electrocution offends the
evolving standards of decency
that characterize a mature, civilized
society.” Spivey v. State of
Georgia, 544 S.E. 2d 136 (Ga.
2001). Georgia’s attorney general
and a county prosecutor
asked the court for reconsideration.
In October of the same
year, the Georgia Supreme Court outlawed
electrocution as a means of execution
in the state because it was deemed
cruel and unusual punishment under the
state constitution and because of the
implications of the state’s year 2000
revised CAPITAL PUNISHMENT statute
(Dawson v. State of Georgia, 554 S.E. 2d
137 [Ga. 2001]). The 4–3 ruling gave
momentum to the movement against
death by electrocution elsewhere, but the
U.S. Supreme Court continued to refuse
appeals of this nature, leaving the decision
in the hands of state courts and legislatures.
In early May 2001, several radio stations,
including WYNC in New York,
aired audiotapes of electrocutions in
Georgia’s prisons spanning a period from
1983 to 1998. The recordings were made
by state officials to protect themselves
from litigation over the manner in which
they followed policies to ensure smooth
executions. The tapes were
devoid of emotion and merely
recorded the voices of the executing
officials during the
process. There were no shouts
or cries of pain, but several
tapes contained the final words
of the inmates. The tapes
might support the argument that electrocution,
when properly conducted, is as
humane as other alternatives.
Dr. Chris Sparry, Georgia’s chief
medical examiner, who has testified on
the matter, stated:
The best evidence that exists to
indicate that people who are
judicially executed never feel any
conscious pain or suffering rests
in the tens of thousands of people
who have sustained accidental
electrocutions and have survived.
None of those people can
even remember the event if the
current goes through their head
. . . consciousness is obliterated
instantly when the current is
passed through the body because
the amount of the current is so
very, very great.
Georgia was one of four states still
employing the use of electric chairs for
execution of condemned criminals,
although both Georgia and Florida
changed their primary means of execution
to lethal injection for the newlyconvicted
starting in 2000. Nebraska and
Alabama continue to use their electric
chairs as the sole means of execution
although both states have considered
legislation to allow lethal injection as
well.
In an April 2001 Gallup poll, roughly
two of every three surveyed Americans
said they favored the death penalty.
Despite some of the media’s characterization
of declining support, the percentage
remained consistently above 60 percent
for at least the preceding five years. The
all-time high for supporting capital punishment
was in 1994 at 80 percent; the low of 42 percent was in 1966. The manner
by which execution is accomplished
is a different matter toward which there is
growing sensitivity.
In many states, condemned persons
are given the opportunity to elect the
method by which they will die. Some
Americans bristle at the thought that
“humane consideration” should be given
to those who have wreaked heinous inhumanity
upon others. There remains a palpable
undercurrent of opinion/attitude
that execution should hurt, not only
because it may serve to deter future
wrongdoers but also because of the belief
that death is intended as a punishment,
not an escape.
Still, as of spring 2001, 36 of the 38
states with death penalty laws employed
lethal injection as the preferred method.
With lethal injection, the victim is first
put to sleep with sodium pentothal, after
which other drugs are administered to
paralyze the body and stop the heart. The
person never regains consciousness.
The U.S. Supreme Court has provided
guidance as to what should constitute
cruel and unusual punishment
under the Eighth Amendment, but made
it clear that the standards must be evolving
and dynamic. “Difficulty would
attend the effort to define with exactness
the extent of the constitutional provision
which provides that cruel and unusual
punishments shall not be inflicted; but it
is safe to affirm that punishments of torture
[such as drawing and quartering,
emboweling alive, beheading, public dissecting,
and burning alive], and all others
in the same line of unnecessary cruelty,
are forbidden by that amendment to the
Constitution,” the Court said, more than
100 years ago, in Wilkerson v. Utah, 99
U.S. 130, 25 L. Ed. 345 (1878), which
upheld an execution by firing squad.
Twelve years later, in In re Kemmler, 136
U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519
(1890), the Court, under the Fourteenth
Amendment’s DUE PROCESS CLAUSE,
found electrocution to be a permissible
method of execution. Moreover, in
assuming the applicability of the Eighth
Amendment to the States, the Court,
many years later, held that a second electrocution,
resulting from the failure of
the first one, did not violate the proscription.
“The cruelty against which the Constitution
protects a convicted man is
cruelty inherent in the method of punishment,
not the necessary suffering
involved in any method employed to
extinguish life humanely,” the majority
opinion stated. Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 67 S. Ct. 374, 916
L. Ed. 422 (1947).
In Trop v. Dulles 356 U.S. 86, 78 S. Ct.
590, 2 L. Ed. 2d 630 (1958), the Supreme
Court, in referring to the United States as
“an enlightened democracy,” held that
“The [Eighth] Amendment must draw its
meaning from the evolving standards of
decency that mark the progress of a
maturing society.” That language was
repeated again in GREGG V. GEORGIA
428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d
859 (1978), wherein the Court noted that
the Eighth Amendment was to be interpreted
“in a flexible and dynamic manner
to accord with evolving standards of
decency.”Most likely, this is the language
from which the Georgia Supreme Court
formed their ultimate Spivey ruling. The
U.S. Supreme Court, on the other hand,
denied certiorari to an appeal challenging
Alabama’s use of the electric chair and
had not ruled against electrocution as of
the end of the 2003 term.

FURTHER READINGS
Harry, Jennifer L. 2000. “Death Penalty Disquiet
Stirs Nation.” Corrections Today
(December).
Macready, Dawn. 2000. “The ‘Shocking’ Truth
about the Electric Chair: An Analysis of
the Unconstitutionality of Electrocution.”
Ohio Northern University Law Review 26
(summer).
Roy, Patricia. 2002. “Not So Shocking: The
Death of the Electric Chair in Georgia at
the Hands of the Georgia Supreme
Court.”Mercer Law Review 53 (summer).
Weinstein, Bob, and Jim Bessant. 1996. Death
Row Confidential. New York: HarperPaperbacks.

CROSS-REFERENCES
Capital Punishment; Eighth Amendment;
Fourteenth Amendment.