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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)).
Definition (Substantive Criminal Law)
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)).
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).
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).
Imposition (Procedural Criminal Law)
The Eighth Amendment has had its greatest impact on procedural criminal law in capital cases. There the Supreme Court has required a process that guarantees an individualized sentencing decision to avoid arbitrary and capricious death sentences. The Supreme Court has rejected attempts to extend this requirement to noncapital cases, even those involving a maximum sentence of life imprisonment without the possibility of parole (Harmelin). Presumably, the imposition of penal norms upon an incompetent defendant would also be considered cruel and unusual. The Eighth Amendment alone, however, would not prohibit the conviction—or even the execution—of an innocent person, assuming the impositional process satisfied due process requirements (Herrera v. Collins, 506 U.S. 390 (1993)).
Infliction (Prison or Correction Law)
Even if neither the legislative threat of a particular punishment nor its imposition on a particular defendant violates the Eighth Amendment, its actual infliction may. After all, the amendment specifically prohibits the infliction of cruel and unusual punishments, in contrast to the imposition of excessive bail or fines. Legislatures enjoy considerable latitude in determining the mode of punishment. Although burning at the stake and quartering would presumably run afoul of the Eighth Amendment, the Supreme Court has been unwilling to constrain legislatures’ choice among other modes of execution, including electrocution, hanging, gassing, and lethal injection.
Still, the cruel and unusual punishments clause reaches the actual infliction of punishment, even if it does not deviate from the general mode specified by the legislature (say, by electrocuting a condemned man rather than hanging him). Paradoxically, the infliction of noncapital punishment has received much greater Eighth Amendment scrutiny than has the infliction of capital punishment. So the Supreme Court has consistently rejected claims based on botched execution attempts, while at the same time developing a complex jurisprudence of prison conditions, which critics have characterized as a National Code of Prison Regulations (Hudson v. McMillian, 503 U.S. 1 (1992) ( Justice Thomas dissenting)).
In the law of prisons, different tests govern the infliction of legislatively defined and judicially imposed punishments, on the one hand, and the disciplining of inmates for prison misconduct, on the other. The former amounts to cruel and unusual punishment if it reflects ‘‘deliberate indifference’’ on the part of prison officials. The latter violates the Eighth Amendment, for example, only if it reflects ‘‘malice and sadism’’ (Hudson).
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.
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